Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 1 of 31
CLOSED,APPEAL,REOPENED,reassigned
U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:15−cv−14002−JEL−MKM

Mays et al v. Snyder et al **CASE CLOSED − ALL ENTRIES MUST BE MADE IN 16−10444.** Assigned to: District Judge Judith E. Levy Referred to: Magistrate Judge Mona K. Majzoub

Case in other court:

U.S. Court of Appeals − Sixth Circuit, 17−01144

Cause: 42:1983 Civil Rights Act

Plaintiff

Date Filed: 11/13/2015 Date Terminated: 04/09/2018 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Melisa Mays individually and as next friend of three minor children

represented by Beth M. Rivers Pitt McGehee Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: brivers@pittlawpc.com ATTORNEY TO BE NOTICED

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED

David J. Shea Shea Aiello, PLLC 26100 American Drive Second Floor Southfield, MI 48034 248−354−0224 Email: david.shea@sadplaw.com ATTORNEY TO BE NOTICED

Deborah A. LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104 734−996−5620 Email: deblabelle@aol.com ATTORNEY TO BE NOTICED

Diana Gjonaj Weitz Luxenberg, P.C. Chrysler House 719 Griswold Street Suite 620 Detroit, MI 48226 313−800−4170 Email: dgjonaj@weitzlux.com ATTORNEY TO BE NOTICED

Gregory Stamatopoulos Weitz & Luxenberg, P.C. The Fisher Building 3011 West Grand Boulevard

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Suite 2150 Detroit, MI 48202 313−800−4168 Fax: 646−293−7955 Email: gstamatopoulos@weitzlux.com ATTORNEY TO BE NOTICED

Julie H. Hurwitz Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: jhurwitz@goodmanhurwitz.com ATTORNEY TO BE NOTICED

Kathryn Bruner James Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: kjames@goodmanhurwitz.com ATTORNEY TO BE NOTICED

Paul F. Novak Weitz & Luxenberg, P.C. The Fisher Building 3011 West Grand Boulevard, Suite 2150 Detroit, MI 48202 313−800−4170 Fax: 646−293−7992 Email: pnovak@weitzlux.com ATTORNEY TO BE NOTICED

William H. Goodman Goodman and Hurwitz 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: bgoodman@goodmanhurwitz.com ATTORNEY TO BE NOTICED

Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED

Plaintiff Michael Mays

represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

David J. Shea

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(See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Diana Gjonaj (See above for address) ATTORNEY TO BE NOTICED

Gregory Stamatopoulos (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Paul F. Novak (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jacqueline Pemberton

represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Diana Gjonaj (See above for address) ATTORNEY TO BE NOTICED

Gregory Stamatopoulos (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

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Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Paul F. Novak (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Keith John Pemberton

represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Diana Gjonaj (See above for address) ATTORNEY TO BE NOTICED

Gregory Stamatopoulos (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Paul F. Novak (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Elnora Carthan

represented by Beth M. Rivers (See above for address)

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ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Diana Gjonaj (See above for address) ATTORNEY TO BE NOTICED

Gregory Stamatopoulos (See above for address) ATTORNEY TO BE NOTICED

Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED

Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED

Paul F. Novak (See above for address) ATTORNEY TO BE NOTICED

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED

Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Rhonda Kelso individually and as next friend of one minor child

represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED

Cary S. McGehee (See above for address) ATTORNEY TO BE NOTICED

David J. Shea (See above for address) ATTORNEY TO BE NOTICED

Deborah A. LaBelle (See above for address) ATTORNEY TO BE NOTICED

Diana Gjonaj (See above for address) ATTORNEY TO BE NOTICED

Gregory Stamatopoulos

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(See above for address) ATTORNEY TO BE NOTICED
Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED
Kathryn Bruner James (See above for address) ATTORNEY TO BE NOTICED
Paul F. Novak (See above for address) ATTORNEY TO BE NOTICED
William H. Goodman (See above for address) ATTORNEY TO BE NOTICED
Michael L. Pitt (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Rick Snyder Governor, in his official capacity

represented by Eugene Driker Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: edriker@bsdd.com ATTORNEY TO BE NOTICED
Margaret A. Bettenhausen Michigan Department of Attorney General 525 West Ottawa St. P. O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: bettenhausenm@michigan.gov ATTORNEY TO BE NOTICED
Morley Witus Barris, Sott, Denn & Driker, PLLC 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: mwitus@bsdd.com ATTORNEY TO BE NOTICED
Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−335−7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED

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Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agricultural Division 525 West Ottawa Street 6th FLoor, G. Mennen Williams Building P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED

Todd R. Mendel Barris, Sott, 333 W. Fort Street Suite 1200 Detroit, MI 48226−3281 313−965−9725 Email: tmendel@bsdd.com ATTORNEY TO BE NOTICED

Zachary C. Larsen Michigan Department of Attorney General P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: larsenz@michigan.gov ATTORNEY TO BE NOTICED

Defendant
Michigan, State of for prospective relief only

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Daniel Wyant

represented by Christopher B. Clare Clark Hill PlC 601 Pennsylvania Ave. NW, N. Building Suite 1000 Washington, DC 20004 202−572−8671 Fax: 202−572−8691 Email: cclare@clarkhill.com ATTORNEY TO BE NOTICED

Jay M. Berger Clark Hill (Detroit) 500 Woodward Avenue Suite 3500 Detroit, MI 48226−3435

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313−965−8300 Email: jberger@clarkhill.com ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Michael J. Pattwell Clark Hill, PLC 212 E. Cesar E. Chavez Avenue Lansing, MI 48906 517−318−3043 Fax: 517−318−3082 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Liane Shekter Smith

represented by Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Thaddeus E. Morgan Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933 517−482−5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED

Defendant Adam Rosenthal

represented by Allison M. Collins Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933 517−371−8124 Fax: 517−371−8200 Email: acollins@fosterswift.com ATTORNEY TO BE NOTICED

Charles E. Barbieri

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Foster, Swift, 313 S. Washington Square Lansing, MI 48933−2193 517−371−8100 Fax: 517−371−8200 Email: cbarbieri@fosterswift.com ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Stephen Busch

represented by Courtney B. Ciullo Kotz Sangster Wysocki P.C. 400 Renaissance Center Suite 3400 Detroit, MI 48243 313−259−8300 Fax: 313−259−1451 Email: cciullo@kotzsangster.com ATTORNEY TO BE NOTICED

Dennis K. Egan Kotz, Sangster, Wysocki & Berg, P.C. 400 Renaissance Center, Suite 3400 Detroit, MI 48234 313−259−8300 Fax: 313−259−1451 Email: degan@kotzsangster.com ATTORNEY TO BE NOTICED

Krista A. Jackson Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 49503 616−458−3633 Fax: 616−774−2461 Email: kjackson@shrr.com ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Philip A. Grashoff , Jr. Smith Haughey Rice & Roegge

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100 Monroe Center, NW Grand Rapids, MI 48304 616−774−8000 Fax: 616−774−2461 Email: pgrashoff@shrr.com ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Patrick Cook

represented by Allison M. Collins (See above for address) ATTORNEY TO BE NOTICED

Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Michael Prysby

represented by Allison M. Collins (See above for address) ATTORNEY TO BE NOTICED

Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Bradley Wurfel

represented by Christopher B. Clare (See above for address)

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ATTORNEY TO BE NOTICED

Jay M. Berger (See above for address) ATTORNEY TO BE NOTICED

Margaret A. Bettenhausen (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Nathan A. Gambill (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Richard S. Kuhl (See above for address) TERMINATED: 02/11/2016 ATTORNEY TO BE NOTICED

Defendant Darnell Earley

represented by Angela N. Wheeler City of Flint Law Dept. 1101 S. Saginaw St. Flint, MI 48502 810−766−7146 Email: awheeler@cityofflint.com ATTORNEY TO BE NOTICED

Anthony K Chubb Giarmarco, Mullins & Horton, P.C. 101 W. Big Beaver Road 10th Floor Troy, MI 48084 248−457−7054 Fax: 248−457−7001 Email: achubb@gmhlaw.com TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

David B. Roth Harvey Kruse, PC G−9460 S. Saginaw St., Suite A Grand Blanc, MI 48439 810−230−1000 Fax: 810−230−0844 Email: droth@harveykruse.com TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

William Young Kim City of Flint 1101 S. Saginaw Street Third Floor Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: wkim@cityofflint.com ATTORNEY TO BE NOTICED

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Defendant Gerald Ambrose
Defendant Dayne Walling
Defendant Howard Croft
Defendant Michael Glasgow

represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED
Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED
Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED
Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED

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Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Daugherty Johnson

represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED

Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant
Flint, City of a municipal corporation

represented by Angela N. Wheeler (See above for address) ATTORNEY TO BE NOTICED

Anthony K Chubb (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

David B. Roth (See above for address) TERMINATED: 08/04/2016 ATTORNEY TO BE NOTICED

Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED

Joseph E. Richotte BUTZEL LONG, P.C. Stoneridge West 41000 Woodward Avenue Bloomfield Hills, MI 48304 (248) 258−1407 Fax: (248) 258−1349

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Email: richotte@butzel.com ATTORNEY TO BE NOTICED

Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED

William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Defendant Nick Lyon

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Andy Dillon

represented by Margaret A. Bettenhausen (See above for address) ATTORNEY TO BE NOTICED

Zachary C. Larsen (See above for address) ATTORNEY TO BE NOTICED

Defendant Edward Kurtz

represented by Michael J. Gildner Simen, Figura, 5206 Gateway Centre Suite 200 Flint, MI 48507 810−235−9000 Email: mgildner@sfplaw.com ATTORNEY TO BE NOTICED

Defendant Jeff Wright

represented by Gregory M. Meihn Foley & Mansfield, PLLP 130 East Nine Mile Road Ferndale, MI 48220 248−721−4200 Fax: 248−721−4201 Email: gmeihn@foleymansfield.com ATTORNEY TO BE NOTICED

Joseph F. Galvin Genesee County Drain Commissioners Office 4610 Beecher Road Flint, MI 48532 810−732−7870 Email: jgalvin@gcdcwws.com

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ATTORNEY TO BE NOTICED
Kevin K. Kilby McGraw Morris P.C. 2075 West Big Beaver Road Suite 750 Troy, MI 48084 248−502−4000 Fax: 248−502−4001 Email: kkilby@mcgrawmorris.com ATTORNEY TO BE NOTICED
Stacy J. Belisle McGraw Morris P.C. 2075 West Big Beaver Road Suite 750 Troy, MI 48084 248−502−4000 Fax: 248−502−4001 Email: sbelisle@mcgrawmorris.com ATTORNEY TO BE NOTICED
Thomas J. McGraw McGraw Morris P.C. 2075 West Big Beaver Road Suite 750 Troy, MI 48084 248−502−4000 Fax: 248−502−4001 Email: tmcgraw@mcgrawmorris.com ATTORNEY TO BE NOTICED

V. Movant Myia McMillian Movant Concerned Pastors for Social Action
Movant Melissa Mays
Movant American Civil Liberties Union of Michigan Movant Natural Resources Defense Council, Inc.

represented by Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive Suite 1600 Chicago, IL 60606 312−651−7918 Fax: 312−332−1908 Email: stallman@nrdc.org ATTORNEY TO BE NOTICED
represented by Sarah C. Tallman (See above for address) ATTORNEY TO BE NOTICED
represented by Sarah C. Tallman (See above for address) ATTORNEY TO BE NOTICED

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Interested Party McAlpine PC
Interested Party Sasha Bell
Interested Party Lockwood, Andrews & Newman, Inc.
Interested Party Lockwood, Andrews & Newman, P.C. Interested Party Leo A. Daly Company Interested Party Frances Gilcreast
Interested Party Vivian Kelley

represented by Mark L. McAlpine McAlpine & McAlpine 3201 University Drive Suite 100 Auburn Hills, MI 48326−2361 248−373−3700 Email: mlmcalpine@mcalpinepc.com ATTORNEY TO BE NOTICED
represented by Corey M. Stern Levy Konigsberg, LLP 800 Third Avenue Suite 11th Floor New York, NY 10022 212−605−6298 Fax: 212−605−6290 Email: cstern@levylaw.com ATTORNEY TO BE NOTICED
represented by David C. Kent Drinker Biddle Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469−356−2535 Fax: 469−357−0860 Email: david.kent@dbr.com ATTORNEY TO BE NOTICED
represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED
represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED
represented by David J. Shea (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Leopold Cohen Milstein Sellers & Toll, PLLC 2925 PGA Boulevard Suite 200 Palm Beach Gardens, FL 33410 561−515−1400 Fax: 561−515−1401 Email: tleopold@cohenmilstein.com ATTORNEY TO BE NOTICED
represented by Theodore J. Leopold (See above for address)

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ATTORNEY TO BE NOTICED

Interested Party Estrella A. Simpkins

represented by Theodore J. Leopold (See above for address) ATTORNEY TO BE NOTICED

Interested Party
Beverly's Restaurant, Cakes & Catering

represented by Theodore J. Leopold (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/13/2015
11/16/2015 11/16/2015
11/18/2015 11/18/2015 11/19/2015 11/19/2015 11/19/2015 11/25/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015

# Docket Text
1 COMPLAINT AND JURY DEMAND filed by All Plaintiffs against All Defendants with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−5426640 − Fee: $ 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Genesee. [Previously dismissed case: No] [Possible companion case(s): None] (Pitt, Michael) (Entered: 11/13/2015)
2 SUMMONS Issued for * All Defendants * (DWor) (Entered: 11/16/2015)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 11/16/2015)
3 NOTICE of Appearance by Beth M. Rivers on behalf of All Plaintiffs. (Rivers, Beth) (Entered: 11/18/2015)
4 NOTICE of Appearance by Deborah A. LaBelle on behalf of All Plaintiffs. (LaBelle, Deborah) (Entered: 11/18/2015)
5 ATTORNEY APPEARANCE: Julie H. Hurwitz appearing on behalf of All Plaintiffs (Hurwitz, Julie) (Entered: 11/19/2015)
6 ATTORNEY APPEARANCE: William H. Goodman appearing on behalf of All Plaintiffs (Goodman, William) (Entered: 11/19/2015)
7 ATTORNEY APPEARANCE: Kathryn Bruner James appearing on behalf of All Plaintiffs (James, Kathryn) (Entered: 11/19/2015)
8 ATTORNEY APPEARANCE: Cary S. McGehee appearing on behalf of All Plaintiffs Against All Defendants (McGehee, Cary) (Entered: 11/25/2015)
9 WAIVER OF SERVICE Returned Executed. Governor Rick Snyder waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
10 WAIVER OF SERVICE Returned Executed. Michigan, State of waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
11 WAIVER OF SERVICE Returned Executed. Daniel Wyant waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
12 WAIVER OF SERVICE Returned Executed. Liane Shekter Smith waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
13 WAIVER OF SERVICE Returned Executed. Adam Rosenthal waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
14 WAIVER OF SERVICE Returned Executed. Stephen Busch waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
15 WAIVER OF SERVICE Returned Executed. Patrick Cook waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)

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12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/04/2015 12/09/2015
12/09/2015
12/16/2015
01/20/2016
01/27/2016 01/29/2016 01/29/2016 01/29/2016 01/29/2016
01/29/2016

16 WAIVER OF SERVICE Returned Executed. Michael Prysby waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
17 WAIVER OF SERVICE Returned Executed. Bradley Wurfel waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
18 WAIVER OF SERVICE Returned Executed. Darnell Earley waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
19 WAIVER OF SERVICE Returned Executed. Gerald Ambrose waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
20 WAIVER OF SERVICE Returned Executed. Dayne Walling waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
21 WAIVER OF SERVICE Returned Executed. Howard Croft waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
22 WAIVER OF SERVICE Returned Executed. Michael Glasgow waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
23 WAIVER OF SERVICE Returned Executed. Daugherty in their individual and official capacit Johnson waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
24 WAIVER OF SERVICE Returned Executed. Flint, City of waiver sent on 12/2/2015, answer due 2/1/2016. (Pitt, Michael) (Entered: 12/04/2015)
25 NOTICE of Appearance by Richard S. Kuhl on behalf of Stephen Busch, Patrick Cook, Michigan, State of, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Governor Rick Snyder, Bradley Wurfel, Daniel Wyant. (Kuhl, Richard) (Entered: 12/09/2015)
26 NOTICE of Appearance by Margaret A. Bettenhausen on behalf of Stephen Busch, Patrick Cook, Michigan, State of, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Governor Rick Snyder, Bradley Wurfel, Daniel Wyant. (Bettenhausen, Margaret) (Entered: 12/09/2015)
27 ATTORNEY APPEARANCE: Nathan A. Gambill appearing on behalf of Stephen Busch, Patrick Cook, Michigan, State of, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Governor Rick Snyder, Bradley Wurfel, Daniel Wyant (Gambill, Nathan) (Entered: 12/16/2015)
28 MOTION for Leave to File Excess Pages with Brief in Support by Stephen Busch, Patrick Cook, Michigan, State of, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Governor Rick Snyder, Bradley Wurfel, Daniel Wyant. (Gambill, Nathan) (Entered: 01/20/2016)
TEXT−ONLY ORDER Granting 28 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 01/27/2016)
29 NOTICE of Appearance by David B. Roth on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty in their individual and official capacit Johnson, Dayne Walling. (Roth, David) (Entered: 01/29/2016)
30 NOTICE of Appearance by Angela N. Wheeler on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty in their individual and official capacit Johnson, Dayne Walling. (Wheeler, Angela) (Entered: 01/29/2016)
31 NOTICE of Appearance by Anthony K Chubb on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty in their individual and official capacit Johnson, Dayne Walling. (Chubb, Anthony) (Entered: 01/29/2016)
32 NOTICE of Appearance by William Young Kim on behalf of Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty in their individual and official capacit Johnson, Dayne Walling. (Kim, William) (Entered: 01/29/2016)
33 MOTION for Extension of Time to File Answer or Responsive Pleading by Michigan, State of. (Bettenhausen, Margaret) (Entered: 01/29/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 19 of 31

02/01/2016
02/02/2016 02/11/2016 02/18/2016 02/19/2016 02/23/2016 02/23/2016 02/23/2016 03/01/2016
03/02/2016
03/03/2016 03/03/2016 03/03/2016 03/29/2016 03/30/2016 03/30/2016
03/31/2016
03/31/2016
03/31/2016
03/31/2016 03/31/2016

TEXT−ONLY ORDER Granting 33 MOTION for Extension of Time to File Answer or Responsive Pleading; Responsive Pleading due by 3/2/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/01/2016)
34 MOTION for Withdrawal of Attorney Kuhl, Bettenhausen, Gambill by Michigan, State of. (Bettenhausen, Margaret) (Entered: 02/02/2016)
35 ORDER granting 34 Motion to Withdraw as Counsel.. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/11/2016)
36 NOTICE of Appearance by Mark L. McAlpine on behalf of McAlpine PC. (McAlpine, Mark) (Entered: 02/18/2016)
37 AMENDED 36 Notice of Appearance by McAlpine PC (McAlpine, Mark) (Entered: 02/19/2016)
38 NOTICE of Appearance by Paul F. Novak on behalf of All Plaintiffs. (Novak, Paul) (Entered: 02/23/2016)
39 NOTICE of Appearance by Diana Gjonaj on behalf of All Plaintiffs. (Gjonaj, Diana) (Entered: 02/23/2016)
40 NOTICE of Appearance by Gregory Stamatopoulos on behalf of All Plaintiffs. (Stamatopoulos, Gregory) (Entered: 02/23/2016)
41 STIPULATION re 1 Complaint,, for Entry of Order Regarding Extension of Deadline to File Response to Complaint by Michigan, State of, Governor Rick Snyder (Kuhl, Richard) (Entered: 03/01/2016)
42 ORDER Extending Deadline to Respond to 1 Complaint; Responsive Pleading due by 4/4/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 03/02/2016)
43 NOTICE of Appearance by Eugene Driker on behalf of Governor Rick Snyder. (Driker, Eugene) (Entered: 03/03/2016)
44 NOTICE of Appearance by Todd R. Mendel on behalf of Governor Rick Snyder. (Mendel, Todd) (Entered: 03/03/2016)
45 NOTICE of Appearance by Morley Witus on behalf of Governor Rick Snyder. (Witus, Morley) (Entered: 03/03/2016)
46 MOTION for Leave to File Excess Pages with Brief in Support by Michigan, State of, Governor Rick Snyder. (Bettenhausen, Margaret) (Entered: 03/29/2016)
47 NOTICE of Appearance by Krista A. Jackson on behalf of Stephen Busch. (Jackson, Krista) (Entered: 03/30/2016)
48 STIPULATION for Entry of Order Regarding Extension of Deadline for MDEQ Defendants to Respond to Complaint by Stephen Busch (Jackson, Krista) (Entered: 03/30/2016)
TEXT−ONLY ORDER Granting 46 MOTION for Leave to File Excess Pages filed by Michigan, State of, Governor Rick Snyder. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 03/31/2016)
49 STIPULATED ORDER Extending Time for City of Flint Defendants to Respond to 1 Complaint; Responsive Pleading due by 4/18/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 03/31/2016)
50 ORDER re 48 Stipulation, Extending Time for MDEQ Defendants to Respond to 1 Complaint; Responsive Pleading due by 5/6/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 03/31/2016)
51 ATTORNEY APPEARANCE: Dennis K. Egan appearing on behalf of Stephen Busch and Certificate of Service (Egan, Dennis) (Entered: 03/31/2016)
52 NOTICE of Appearance by Michael J. Pattwell on behalf of Bradley Wurfel, Daniel Wyant. (Pattwell, Michael) (Entered: 03/31/2016)

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04/01/2016 04/01/2016 04/01/2016 04/04/2016 04/04/2016
04/05/2016 04/06/2016 04/06/2016 04/06/2016
04/06/2016
04/08/2016 04/08/2016 04/12/2016 04/12/2016
04/13/2016
04/14/2016 04/14/2016
04/14/2016

53 NOTICE by Michigan, State of, Rick Snyder of Screening Device (Kuhl, Richard) (Entered: 04/01/2016)
54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel by All Plaintiffs. (Attachments: # 1 Exhibit Proposed Order to Consolidate) (Pitt, Michael) (Entered: 04/01/2016)
55 Joint MOTION to Consolidate Cases by All Plaintiffs. (Attachments: # 1 Exhibit) (Shea, David) (Entered: 04/01/2016)
56 NOTICE of Appearance by Jay M. Berger on behalf of Bradley Wurfel, Daniel Wyant. (Berger, Jay) (Entered: 04/04/2016)
57 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) by Michigan, State of, Rick Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1 − Letter from Adam Rosenthal, MDEQ, # 3 Exhibit Exhibit 2 − Pillar, et al. v. SOM, et al.) (Bettenhausen, Margaret) (Entered: 04/04/2016)
58 ATTORNEY APPEARANCE: Charles E. Barbieri appearing on behalf of Patrick Cook, Michael Prysby, Adam Rosenthal (Barbieri, Charles) (Entered: 04/05/2016)
59 MOTION to Consolidate Cases by All Plaintiffs. (Attachments: # 1 Exhibit Pending Actions) (Shkolnik, Hunter) (Entered: 04/06/2016)
60 NOTICE of Appearance by Corey M. Stern on behalf of Sasha Bell. (Attachments: # 1 Exhibit Counsel's Present Case List) (Stern, Corey) (Entered: 04/06/2016)
61 MOTION for Extension of Time to File Response/Reply as to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel by Sasha Bell. (Attachments: # 1 Exhibit Individual Cases (List), # 2 Exhibit Motion for Remand, # 3 Exhibit Reply Memorandum in Support of Motion for Remand) (Stern, Corey) (Entered: 04/06/2016)
62 ATTORNEY APPEARANCE: David C. Kent appearing on behalf of Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newman, P.C., Leo A. Daly Company for Limited Purpose of Information and Coordination (Kent, David) (Entered: 04/06/2016)
63 ATTORNEY APPEARANCE: Courtney B. Ciullo appearing on behalf of Stephen Busch w/Certificate of Service (Ciullo, Courtney) (Entered: 04/08/2016)
64 NOTICE of Appearance by Philip A. Grashoff, Jr on behalf of Stephen Busch. (Grashoff, Philip) (Entered: 04/08/2016)
65 NOTICE by Michigan, State of, Rick Snyder re 35 Order on Motion to Withdraw as Attorney (Receipt of Conflict Waivers) (Kuhl, Richard) (Entered: 04/12/2016)
66 MOTION for Leave to File Nonparty Response to Joint Motion to Consolidate Actions by Concerned Pastors for Social Action, Melissa Mays, American Civil Liberties Union of Michigan, Natural Resources Defense Council, Inc.. (Tallman, Sarah) (Entered: 04/12/2016)
67 MOTION for Leave to File Nonparty Response to Motion for Consolidation Pursuant to Rule 42 by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Tallman, Sarah) (Entered: 04/13/2016)
68 NOTICE of Appearance by Nicholas Adam Szokoly on behalf of All Plaintiffs. (Szokoly, Nicholas) (Entered: 04/14/2016)
69 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases filed by Non−Party Attorney for Plaintiffs Beatrice Boler, et al. filed by All Plaintiffs. (Szokoly, Nicholas) (Entered: 04/14/2016)
70 NOTICE of Appearance by Frederick A. Berg on behalf of Flint, City of. (Berg, Frederick) (Entered: 04/14/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 21 of 31

04/14/2016 04/15/2016 04/15/2016 04/15/2016 04/15/2016 04/15/2016 04/18/2016 04/18/2016 04/18/2016
04/18/2016
04/19/2016 04/20/2016

71 NOTICE of Appearance by Sheldon H. Klein on behalf of Flint, City of. (Klein, Sheldon) (Entered: 04/14/2016)
72 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases filed by Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 04/15/2016)
73 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases , Brief and Certificate of Service filed by Stephen Busch. (Egan, Dennis) (Entered: 04/15/2016)
74 Joint MOTION for Extension of Time to File Answer re 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases by Flint, City of. (Klein, Sheldon) (Entered: 04/15/2016)
75 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases Concurrence in Defendant Busch's Response filed by Patrick Cook, Michael Prysby, Adam Rosenthal. (Barbieri, Charles) (Entered: 04/15/2016)
76 RESPONSE to 59 MOTION to Consolidate Cases filed by All Plaintiffs. (Shea, David) (Entered: 04/15/2016)
77 NOTICE of Joinder/Concurrence in 72 Response to Motion, filed by Rick Snyder, Michigan, State of, 73 Response to Motion, filed by Stephen Busch by Bradley Wurfel, Daniel Wyant (Berger, Jay) (Entered: 04/18/2016)
78 MOTION to Dismiss by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty Johnson, Dayne Walling. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B(1), # 4 Exhibit B(2), # 5 Exhibit C) (Kim, William) (Entered: 04/18/2016)
79 NOTICE of Joinder/Concurrence in 55 Joint MOTION to Consolidate Cases filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Rhonda Kelso, Jacqueline Pemberton, 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Rhonda Kelso, Jacqueline Pemberton, 59 MOTION to Consolidate Cases filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Myia McMillian, Rhonda Kelso, Jacqueline Pemberton by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newman, P.C. (Kent, David) (Entered: 04/18/2016)
80 RESPONSE to 55 Joint MOTION to Consolidate Cases , 59 MOTION to Consolidate Cases filed by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Gilcreast Complaint, # 3 Exhibit B − McIntosh First Amended Complaint, # 4 Exhibit C − McMillian Complaint, # 5 Exhibit D − Boler Complaint, # 6 Exhibit E − Waid Complaint, # 7 Exhibit F − Opinion and Order Granting Plaintiff's Motion for Remand (Bell), # 8 Exhibit G − Concerned Pastors Complaint, # 9 Exhibit H − Exhibit A to Concerned Pastors Complaint, # 10 Exhibit I − Notice of Motion Hearing (Concerned Pastors), # 11 Exhibit J − Exhibit A to Notice of Removal to Federal Court (Mason)) (Tallman, Sarah) (Entered: 04/18/2016)
81 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases by Non−Party Mason Plaintiffs filed by McAlpine PC. (McAlpine, Mark) (Entered: 04/19/2016)
82 NOTICE by Michigan, State of, Rick Snyder re 57 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) Governor Snyder and State of Michigan's Notice of Supplemental Authority (Bettenhausen, Margaret) (Entered: 04/20/2016)

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04/21/2016 04/21/2016
04/21/2016
04/22/2016 04/22/2016 04/26/2016
04/26/2016 04/28/2016 05/02/2016 05/02/2016
05/02/2016
05/02/2016
05/03/2016 05/05/2016 05/05/2016 05/05/2016 05/05/2016

83 Joint MOTION to Stay Dispositive Motion by All Plaintiffs. (Shea, David) (Entered: 04/21/2016)
84 [STRICKEN PER 04/22/16 ORDER] REPLY to Response re 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel Plaintiffs' Omnibus Reply Memorandum in Support of Their Motion to Consolidate Class Action Cases filed by All Plaintiffs. (Novak, Paul) Modified on 4/22/2016 (DPer). (Entered: 04/21/2016)
85 REPLY to Response re 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel CORRECTED Plaintiff's Omnibus Reply Memorandum in Support of Their Motion to Consolidate Class Action Cases filed by All Plaintiffs. (Novak, Paul) (Entered: 04/21/2016)
86 MOTION to Seal 84 Reply to Response to Motion, Plaintiffs' Motion to Seal or in the Alternative Strike ECF No. 84 From the Record by All Plaintiffs. (Novak, Paul) (Entered: 04/22/2016)
87 ORDER striking 84 Reply to response to motion. Signed by District Judge John Corbett O'Meara. (DPer) (Entered: 04/22/2016)
88 REPLY to Response re 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel Plaintiffs' Reply Memorandum in Further Support of Their Motion to Consolidate Class Action Cases and in Reply to Mason Plaintiffs' Response filed by All Plaintiffs. (Novak, Paul) (Entered: 04/26/2016)
89 RESPONSE to 55 Joint MOTION to Consolidate Cases filed by All Plaintiffs. (Shea, David) (Entered: 04/26/2016)
90 NOTICE of Appearance by Thaddeus E. Morgan on behalf of Liane Shekter Smith. (Morgan, Thaddeus) (Entered: 04/28/2016)
91 ORDER Granting 74 Joint MOTION for Extension of Time to Respond to MOTION to Consolidate Cases. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 05/02/2016)
TEXT−ONLY ORDER Granting 67 MOTION for Leave to File Nonparty Response to Motion for Consolidation, 66 MOTION for Leave to File Nonparty Response to Joint Motion to Consolidate Actions. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 05/02/2016)
92 STIPULATION AND ORDER Extending Deadline to Amend 1 Complaint; Amended Complaint due on or before May 25, 2016; Defendants' Responsive Pleadings due on or before June 27, 2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 05/02/2016)
93 RESPONSE to 55 Joint MOTION to Consolidate Cases , 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel, 59 MOTION to Consolidate Cases In Opposition filed by Flint, City of. (Attachments: # 1 Exhibit A. Index of Unpublished Cases) (Klein, Sheldon) (Entered: 05/02/2016)
94 Notice of E−mail Delivery Failure as to attorney David J. Shea. Bounced NEF for Text−Only Order, 92 Stipulation and Order, 91 Order, Terminate Motions, 93 Response to Motion,. (SSch) (Entered: 05/03/2016)
95 NOTICE of Appearance by Christopher B. Clare on behalf of Bradley Wurfel, Daniel Wyant. (Clare, Christopher) (Entered: 05/05/2016)
96 NOTICE of Appearance by Allison M. Collins on behalf of Patrick Cook, Michael Prysby, Adam Rosenthal. (Collins, Allison) (Entered: 05/05/2016)
97 RESPONSE to 83 Joint MOTION to Stay Dispositive Motion filed by Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 05/05/2016)
98 NOTICE of Joinder/Concurrence in by All Plaintiffs Plaintiffs' Concurrence to Motion to Stay Dispositive Motion Practice In All Cases Pending Resolution of the

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 23 of 31

05/05/2016 05/06/2016
05/06/2016 05/09/2016 05/09/2016
05/09/2016
05/09/2016 05/09/2016
05/09/2016 05/11/2016 05/12/2016 05/18/2016 05/18/2016 05/25/2016 05/25/2016 05/26/2016

Consolidation Motions (Novak, Paul) (Entered: 05/05/2016)
99 NOTICE of Joinder/Concurrence in 97 Response to Motion filed by Rick Snyder, Michigan, State of by Flint, City of (Berg, Frederick) (Entered: 05/05/2016)
100 MOTION for Leave to File Nonparty Response to Joint Motion to Stay Dispositive Motion Practice in All Cases by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Concerned Pastors, Order Den. in Part Mot. to Adjourn Hr'g on Mots. to Dismiss, # 3 Exhibit B − Concerned Pastors, Pls.' Mot. for Prelim. Inj.) (Tallman, Sarah) (Entered: 05/06/2016)
101 RESPONSE to 83 Joint MOTION to Stay Dispositive Motion filed by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Tallman, Sarah) (Entered: 05/06/2016)
102 RESPONSE to 78 MOTION to Dismiss Eleventh Amendment Argument Only filed by Michigan, State of, Rick Snyder. (Gambill, Nathan) (Entered: 05/09/2016)
103 RESPONSE to 83 Joint MOTION to Stay Dispositive Motion w/Certificate of Service filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E) (Egan, Dennis) (Entered: 05/09/2016)
104 REPLY to Response re 54 MOTION to Consolidate Cases Class Action and for Designation of a Process for the Court's Selection of Interim Lead Counsel Plaintiffs' Reply Memorandum in Further Support of Their Motion to Consolidate Class Action Cases and in Reply to Defendant City of Flint's Response filed by All Plaintiffs. (Novak, Paul) (Entered: 05/09/2016)
105 RESPONSE to 83 Joint MOTION to Stay Dispositive Motion filed by McAlpine PC. (Attachments: # 1 Exhibit Ex. 1) (McAlpine, Mark) (Entered: 05/09/2016)
106 NOTICE of Joinder/Concurrence in 83 Joint MOTION to Stay Dispositive Motion filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Rhonda Kelso, Jacqueline Pemberton by Leo A. Daly Company, Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newman, P.C. (Kent, David) (Entered: 05/09/2016)
107 RESPONSE to 83 Joint MOTION to Stay Dispositive Motion Practice filed by Gerald Ambrose, Howard Croft, Darnell Earley, Michael Glasgow, Daugherty Johnson, Dayne Walling. (Kim, William) (Entered: 05/09/2016)
TEXT−ONLY ORDER Granting 100 MOTION for Leave to File Nonparty Response to Joint Motion to Stay Dispositive Motion Practice in All Cases. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 05/11/2016)
108 REPLY to Response re 83 Joint MOTION to Stay Dispositive Motion filed by All Plaintiffs. (Shea, David) (Entered: 05/12/2016)
109 NOTICE of Appearance by Theodore J. Leopold on behalf of Frances Gilcreast, Vivian Kelley, Estrella A. Simpkins, Beverly's Restaurant, Cakes & Catering. (Leopold, Theodore) (Entered: 05/18/2016)
110 REPLY to Response re 83 Joint MOTION to Stay Dispositive Motion filed by Frances Gilcreast. (Shea, David) (Entered: 05/18/2016)
111 AMENDED COMPLAINT with Jury Demand filed by All Plaintiffs against All Defendants. NEW PARTIES ADDED. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit A − Task Force Report, # 3 Exhibit B − Timeline) (Pitt, Michael) (Entered: 05/25/2016)
REQUEST for SUMMONS for Andy Dillon, Edward Kurtz, Nick Lyon, Jeff Wright. (Pitt, Michael) (Entered: 05/25/2016)
112 SUMMONS Issued for *Andy Dillon, Edward Kurtz, Nick Lyon, Jeff Wright* (LHos) (Entered: 05/26/2016)

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05/26/2016 05/31/2016 06/02/2016 06/03/2016 06/03/2016 06/08/2016 06/16/2016 06/16/2016 06/23/2016
06/24/2016
06/27/2016
06/28/2016 06/28/2016 06/28/2016 06/29/2016 07/01/2016 07/06/2016
07/26/2016

113 REPLY to Response re 78 MOTION to Dismiss filed by Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5) (Richotte, Joseph) (Entered: 05/26/2016)
114 STIPULATION for Waiver of the Service of Summons and Entry of Order Regarding Extension of Deadline to File Response to Complaint by Michigan, State of, Rick Snyder (Kuhl, Richard) (Entered: 05/31/2016)
115 WAIVER OF SERVICE Returned Executed. Jeff Wright waiver sent on 6/2/2016, answer due 8/1/2016. (Pitt, Michael) (Entered: 06/02/2016)
116 STIPULATION AND ORDER Extending Time for Certain Defendants to Answer 111 Amended Complaint; Responsive Pleading due by 6/29/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/03/2016)
117 ORDER re 114 Stipulation Extending Time to Answer 111 Amended Complaint; Responsive Pleading due by 6/27/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/03/2016)
118 ORDER denying 83 Motion to Stay. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/08/2016)
119 MOTION for Leave to File Excess Pages with Brief in Support by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 06/16/2016)
TEXT−ONLY ORDER Granting 119 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/16/2016)
120 STIPULATION AND ORDER Extending Time for Defendants Wyant, Smith, Rosenthal, Busch, Cook, Prysby, and Wurfel to Respond to 111 Amended Complaint; Responsive Pleading due by 7/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/23/2016)
121 STIPULATION AND ORDER Extending Time for Defendants City of Flint, Earley, Ambrose, Walling, Croft, Glasgow, and Johnson to Respond to 111 Amended Complaint; Responsive Pleading due by 7/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 06/24/2016)
122 MOTION to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Exhibit 1 − March 29, 2013 City of Flint Resolution, # 3 Exhibit Exhibit 2 − June 26, 2013 City of Flint Resolution, # 4 Exhibit Exhibit 3 − August 17, 2015 Letter from MDEQ to Wright, # 5 Exhibit Exhibit 4 − Order of Dismissal) (Bettenhausen, Margaret) (Entered: 06/27/2016)
123 NOTICE of Appearance by Thomas J. McGraw on behalf of Jeff Wright. (McGraw, Thomas) (Entered: 06/28/2016)
124 NOTICE of Appearance by Stacy J. Belisle on behalf of Jeff Wright. (Belisle, Stacy) (Entered: 06/28/2016)
125 NOTICE of Appearance by Kevin K. Kilby on behalf of Jeff Wright. (Kilby, Kevin) (Entered: 06/28/2016)
126 WAIVER OF SERVICE Returned Executed. Edward Kurtz waiver sent on 6/2/2016, answer due 8/1/2016. (Pitt, Michael) (Entered: 06/29/2016)
127 NOTICE of Appearance by Joseph F. Galvin on behalf of Jeff Wright. (Galvin, Joseph) (Entered: 07/01/2016)
128 STIPULATION AND ORDER Extending Time for Plaintiffs to Respond to 122 MOTION to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6); Response due by 8/8/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/06/2016)
129 Ex Parte MOTION for Leave to File Excess Pages by Flint, City of. (Berg, Frederick) (Entered: 07/26/2016)

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07/26/2016 07/26/2016 07/28/2016 07/28/2016 07/28/2016 07/28/2016 07/28/2016 07/29/2016 07/29/2016
07/29/2016 07/29/2016
08/01/2016 08/01/2016 08/01/2016 08/01/2016 08/03/2016

130 MOTION for Leave to File Excess Pages by Daniel Wyant. (Clare, Christopher) (Entered: 07/26/2016)
131 MOTION for Leave to File Excess Pages by Bradley Wurfel. (Clare, Christopher) (Entered: 07/26/2016)
132 Ex Parte MOTION for Leave to File Excess Pages by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith. (Barbieri, Charles) (Entered: 07/28/2016)
TEXT−ONLY ORDER Granting 129 Ex Parte MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/28/2016)
133 ORDER granting in part 130 Motion for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/28/2016)
134 ORDER granting in part 131 Motion for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/28/2016)
TEXT−ONLY ORDER Granting 132 Ex Parte MOTION for Leave to File Excess Pages filed by Stephen Busch, Michael Prysby, Adam Rosenthal, Patrick Cook, Liane Shekter Smith. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 07/28/2016)
135 MOTION to Dismiss by Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Brief)) (Clare, Christopher) (Entered: 07/29/2016)
136 Joint MOTION to Dismiss and Brief in Support of by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K) (Barbieri, Charles) (Entered: 07/29/2016)
137 MOTION to Dismiss by Bradley Wurfel. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Clare, Christopher) (Entered: 07/29/2016)
138 MOTION to Dismiss Defendants City of Flint, Edward Kurtz, Gerald Ambrose, Darnell Earley, Howard Croft, Michael Glasgow and Daugherty Johnsons Motion to Dismiss for Lack of Subject−Matter Jurisdiction and Failure to State a Claim by Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−January 13, 2013 City of Flint Water System Questions & Answers, # 3 Exhibit 2−−Bongiorno v. Fresh Market Inc., No. 15 C 5887, 2016 WL 25713 (N.D. Ill. Jan. 3, 2016), # 4 Exhibit 3−−Phillips v. Snyder, Civ. No. 13−11370, 2014 WL 6474344 (E.D. Mich. Nov. 19, 2014), # 5 Exhibit 4−−January 21, 2016 Emergency Administrative Order of EPA, # 6 Exhibit 5−−July 2011 Analysis of the Flint River as a Permanent Water Supply for the City of Flint, # 7 Exhibit 6−−February 2013 City of Flint Water Supply Assessment by Tucker, Young, Jackson, Tull Inc. (TYJT), # 8 Exhibit 7−−Qadeer v. Bank of America, N.A., No. 12−14310, 2013 WL 424776 (E.D. Mich. Feb. 4, 2013), # 9 Exhibit 8−−Wilson v. AZ Auto. Corp., No. 05−72722, 2007 WL 1017097 (E.D. Mich. Mar. 30, 2007)) (Berg, Frederick) (Entered: 07/29/2016)
139 NOTICE of Appearance by Michael J. Gildner on behalf of Edward Kurtz. (Gildner, Michael) (Entered: 08/01/2016)
140 ANSWER to Amended Complaint with Affirmative Defenses by Edward Kurtz. (Gildner, Michael) (Entered: 08/01/2016)
141 CERTIFICATE OF SERVICE re 140 Answer to Amended Complaint, 139 Notice of Appearance by Edward Kurtz (Gildner, Michael) (Entered: 08/01/2016)
142 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) by Jeff Wright. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − K.S. v. Detroit Pub. Schs, 2015 U.S. Dist. LEXIS 94312, *23−25, (E.D. Mich. July 21, 2015)) (McGraw, Thomas) (Entered: 08/01/2016)
143 MOTION for Leave to File Excess Pages Of Their Brief In Opposition To The State Defendants' Motion to Dismiss by All Plaintiffs. (Novak, Paul) (Entered: 08/03/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 26 of 31

08/04/2016 08/04/2016 08/04/2016 08/08/2016 08/18/2016 08/18/2016 08/18/2016 08/18/2016 08/19/2016 08/22/2016 09/14/2016 09/15/2016 09/16/2016 09/19/2016
09/21/2016 09/22/2016
09/23/2016 09/23/2016

144 ORDER granting in part 143 Motion for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/04/2016)
145 NOTICE of Appearance by Gregory M. Meihn on behalf of Jeff Wright. (Meihn, Gregory) (Entered: 08/04/2016)
146 ORDER of Attorney Withdrawal with stipulation as to Attorneys Anthony Chubb and David Roth. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/04/2016)
147 RESPONSE to 122 MOTION to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) filed by All Plaintiffs. (Attachments: # 1 Exhibit A) (Novak, Paul) (Entered: 08/08/2016)
148 STIPULATION AND ORDER Extending Deadlines re 136 Joint MOTION to Dismiss; Response due by 9/22/2016, Reply due by 10/13/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/18/2016)
149 STIPULATION AND ORDER Extending Deadline re 138 MOTION to Dismiss; Response due by 9/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/18/2016)
150 STIPULATION AND ORDER Extending Deadlines re 135 MOTION to Dismiss; Response due by 9/26/2016, Reply due by 10/17/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/18/2016)
151 STIPULATION AND ORDER Extending Deadlines re 137 MOTION to Dismiss; Response due by 9/28/2016, Reply due by 10/19/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/18/2016)
152 STIPULATION AND ORDER Extending Time to Respond to 142 MOTION to Dismiss; Response due by 9/23/2016, Reply due by 9/30/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 08/19/2016)
153 REPLY to Response re 122 MOTION to Dismiss Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(1) and (b)(6) filed by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 08/22/2016)
154 MOTION for Leave to File A Single Omnibus Brief In Opposition To The MDEQ Defendants' Motions To Dismiss (ECF Nos. 135, 136 and 137) by All Plaintiffs. (Novak, Paul) (Entered: 09/14/2016)
TEXT−ONLY ORDER Granting 154 MOTION for Leave to File A Single Omnibus Brief. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/15/2016)
155 Ex Parte MOTION for Leave to File Excess Pages For Plaintiffs' Brief In Response To The City Defendants' Motion To Dismiss by All Plaintiffs. (Novak, Paul) (Entered: 09/16/2016)
TEXT−ONLY ORDER Granting IN PART 155 Ex Parte MOTION for Leave to File Excess Pages For Plaintiffs' Brief In Response To The City Defendants' Motion To Dismiss. Plaintiffs' Response shall not exceed forty (40) pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/19/2016)
156 MOTION for Leave to File Excess Pages by All Plaintiffs. (Rivers, Beth) (Entered: 09/21/2016)
157 RESPONSE to 137 MOTION to Dismiss , 135 MOTION to Dismiss , 136 Joint MOTION to Dismiss and Brief in Support of Plaintiffs' Omnibus Response To The MDEQ Defendants' Motions To Dismiss Under FRCP 8(a)(2), 12(b)(1) And (6) filed by All Plaintiffs. (Attachments: # 1 Exhibit Felony and misdemeanor complaints against some Defendants) (Novak, Paul) (Entered: 09/22/2016)
TEXT−ONLY ORDER Granting 156 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/23/2016)
158 Emergency MOTION for Extension of Time to File Response/Reply as to 142 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) by All Plaintiffs. (Rivers, Beth) (Entered: 09/23/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 27 of 31

09/27/2016 09/28/2016 09/28/2016
09/30/2016
10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/12/2016 10/13/2016 10/13/2016 10/17/2016 10/18/2016 10/18/2016

159 ANSWER to 158 Emergency MOTION for Extension of Time to File Response/Reply as to 142 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) with Certificate of Service by Jeff Wright. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Meihn, Gregory) (Entered: 09/27/2016)
TEXT−ONLY ORDER Granting 158 MOTION for Extension of Time to File Response to 142 MOTION to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 09/28/2016)
160 RESPONSE to 142 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits List of Exhibits, # 2 Exhibit 1 − Genesee County Distribution System Survey, # 3 Exhibit 2 − Statement of Karegnondi Water Authority, # 4 Exhibit 3 − March 21, 2013 Press Release from Wright, # 5 Exhibit 4 − MLive April 12, 2013 Re; Detroit Final Water Proposal, # 6 Exhibit 5 − Press Releases from March 21, 2013 to May 1, 2013, # 7 Exhibit 6 − April 17, 2013 Email, # 8 Exhibit 7 − Peter Hammer − The Flint Water Crisis, # 9 Exhibit 8 − City of Flint Water System Questions and Answers, # 10 Exhibit 9 − Memo from Ambrose to Workman Dated March 3, 2015, # 11 Exhibit 10 − Warrant for Prysby dated April 20, 2016, # 12 Exhibit 11 − Emergency Back Up Water Supply Agreement, # 13 Exhibit 12 − Letter from O'Brien to Flint Legal Staff Dated January 7, 2016) (Rivers, Beth) (Entered: 09/28/2016)
161 RESPONSE to 138 MOTION to Dismiss Defendants City of Flint, Edward Kurtz, Gerald Ambrose, Darnell Earley, Howard Croft, Michael Glasgow and Daugherty Johnsons Motion to Dismiss for Lack of Subject−Matter Jurisdiction and Failure to State a Claim Response To The City Defendants' Motion To Dismiss Under FRCP 8(a), 9(b), 12(b)(1) and (6) filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits Exhibit Index, # 2 Exhibit Criminal indictments issued by the Michigan Attorney General, # 3 Exhibit Unpublished decision) (Novak, Paul) (Entered: 09/30/2016)
162 MOTION for Leave to File Excess Pages by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith. (Barbieri, Charles) (Entered: 10/12/2016)
TEXT−ONLY ORDER Granting 162 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/12/2016)
163 MOTION for Leave to File Excess Pages by Daniel Wyant. (Clare, Christopher) (Entered: 10/12/2016)
164 MOTION for Leave to File Excess Pages by Bradley Wurfel. (Clare, Christopher) (Entered: 10/12/2016)
165 REPLY to Response re 142 MOTION to Dismiss PURSUANT TO FED. R. CIV. PRO. 12(b)(6) with Certificate of Service filed by Jeff Wright. (Attachments: # 1 Exhibit 1 − Resolution) (Meihn, Gregory) (Entered: 10/12/2016)
166 REPLY to Response re 136 Joint MOTION to Dismiss and Brief in Support of filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith. (Attachments: # 1 Exhibit 1 − Armengau v Cline) (Barbieri, Charles) (Entered: 10/13/2016)
TEXT−ONLY ORDER Granting 163 MOTION for Leave to File Excess Pages filed by Daniel Wyant, and 164 MOTION for Leave to File Excess Pages filed by Bradley Wurfel. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/13/2016)
167 REPLY to Response re 135 MOTION to Dismiss filed by Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Reply)) (Clare, Christopher) (Entered: 10/17/2016)
168 Ex Parte MOTION for Leave to File Excess Pages by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Clare, Christopher) (Entered: 10/18/2016)
TEXT−ONLY ORDER DENYING 168 Ex Parte MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/18/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 28 of 31

10/18/2016 10/19/2016 10/20/2016 10/20/2016 10/21/2016
11/02/2016 11/03/2016 11/04/2016 11/04/2016
11/07/2016 11/07/2016 11/09/2016 11/11/2016 11/14/2016
11/17/2016

169 STIPULATION AND ORDER Extending Time to File Reply in Support of 138 MOTION to Dismiss; Reply due by 11/4/2016, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/18/2016)
170 REPLY to Response re 137 MOTION to Dismiss filed by Bradley Wurfel. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Reply)) (Clare, Christopher) (Entered: 10/19/2016)
171 Ex Parte MOTION re 161 Response to Motion,, To File Supplemental Authority in Response to City Defendants Motion to Dismiss by All Plaintiffs. (Attachments: # 1 Exhibit 1−Collins v. Flint: Transfer case to Genesee County Circuit Court, 8−29−16) (James, Kathryn) (Entered: 10/20/2016)
TEXT−ONLY ORDER Granting 171 Ex Parte MOTION to file Supplemental Authority. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 10/20/2016)
172 Joint MOTION to Change Venue by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G(1), # 9 Exhibit G(2), # 10 Exhibit G(3), # 11 Exhibit G(4), # 12 Exhibit G(5), # 13 Exhibit G(6), # 14 Exhibit H, # 15 Exhibit I, # 16 Exhibit J, # 17 Exhibit K, # 18 Exhibit L, # 19 Exhibit M, # 20 Exhibit N, # 21 Exhibit O, # 22 Exhibit P, # 23 Exhibit Q, # 24 Exhibit R) (Pattwell, Michael) (Entered: 10/21/2016)
173 RESPONSE to 172 Joint MOTION to Change Venue filed by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 11/02/2016)
174 MOTION for Leave to File Excess Pages by Flint, City of. (Klein, Sheldon) (Entered: 11/03/2016)
175 RESPONSE to 172 Joint MOTION to Change Venue filed by All Plaintiffs. (Rivers, Beth) (Entered: 11/04/2016)
176 REPLY to Response re 138 MOTION to Dismiss Defendants City of Flint, Edward Kurtz, Gerald Ambrose, Darnell Earley, Howard Croft, Michael Glasgow and Daugherty Johnsons Motion to Dismiss for Lack of Subject−Matter Jurisdiction and Failure to State a Claim filed by Gerald Ambrose, Howard Croft, Darnell Earley, Flint, City of, Michael Glasgow, Daugherty Johnson, Dayne Walling. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2) (Richotte, Joseph) (Entered: 11/04/2016)
TEXT−ONLY ORDER Granting 174 MOTION for Leave to File Excess Pages. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 11/07/2016)
177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Grashoff, Philip) (Entered: 11/07/2016)
178 NOTICE of Joinder/Concurrence in by Jeff Wright JOINDER IN 172 MDEQ DEFENDANTS MOTION FOR CHANGE OF VENUE (Attachments: # 1 Exhibit A) (Meihn, Gregory) Modified on 11/9/2016 (LHos). (Entered: 11/09/2016)
179 RESPONSE to 172 Joint MOTION to Change Venue filed by Flint, City of. (Berg, Frederick) (Entered: 11/11/2016)
180 REPLY to Response re 172 Joint MOTION to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F) (Clare, Christopher) (Entered: 11/14/2016)
181 MOTION to Reassign Case by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 11/17/2016)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 29 of 31

11/18/2016 11/18/2016 11/21/2016 11/21/2016
11/22/2016 11/22/2016 11/28/2016
11/28/2016
11/28/2016
12/01/2016
12/07/2016 01/31/2017 02/01/2017 02/01/2017 02/02/2017
02/02/2017 02/06/2017

182 RESPONSE to 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue filed by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Larsen, Zachary) (Entered: 11/18/2016)
183 RESPONSE to 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue filed by All Plaintiffs. (James, Kathryn) (Entered: 11/18/2016)
184 RESPONSE to 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue with Certificate of Service filed by Jeff Wright. (Meihn, Gregory) (Entered: 11/21/2016)
185 REPLY to Response re 172 Joint MOTION to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Clare, Christopher) (Entered: 11/21/2016)
186 RESPONSE to 172 Joint MOTION to Change Venue filed by Flint, City of. (Berg, Frederick) (Entered: 11/22/2016)
187 NOTICE by Flint, City of re 186 Response to Motion Duplicative Submission (Berg, Frederick) (Entered: 11/22/2016)
188 REPLY to Response re 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Reply)) (Clare, Christopher) (Entered: 11/28/2016)
189 REPLY to Response re 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Exhibit A (Unpublished Cases Cited in Reply)) (Clare, Christopher) (Entered: 11/28/2016)
190 REPLY to Response re 177 Joint MOTION to Stay Proceedings Pending Final Decision on Motion to Change Venue filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Clare, Christopher) (Entered: 11/28/2016)
191 RESPONSE to 181 MOTION to Reassign Case w/Certificate of Service filed by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Egan, Dennis) (Entered: 12/01/2016)
192 REPLY to Response re 181 MOTION to Reassign Case filed by Andy Dillon, Nick Lyon, Michigan, State of, Rick Snyder. (Bettenhausen, Margaret) (Entered: 12/07/2016)
193 NOTICE by All Plaintiffs of Change of Firm Affiliation for Gregory Stamatopoulos (Stamatopoulos, Gregory) (Entered: 01/31/2017)
194 NOTICE by All Plaintiffs of Change of Firm Affiliation for Paul Novak (Novak, Paul) (Entered: 02/01/2017)
195 NOTICE by All Plaintiffs of Change of FIrm Affiliation for Diana Gjonaj (Gjonaj, Diana) (Entered: 02/01/2017)
196 OPINION AND ORDER granting 122 Motion to Dismiss; granting 135 Motion to Dismiss; granting 136 Motion to Dismiss; granting 137 Motion to Dismiss; granting 138 Motion to Dismiss; granting 142 Motion to Dismiss. Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/02/2017)
197 JUDGMENT, Signed by District Judge John Corbett O'Meara. (WBar) (Entered: 02/02/2017)
198 NOTICE OF APPEAL by All Plaintiffs re 197 Judgment. Receipt No: 0645−6077042 − Fee: $ 505 − Fee Status: Fee Paid. (Rivers, Beth) (Entered: 02/06/2017)

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 30 of 31

02/06/2017 02/24/2017
07/28/2017
10/19/2017 10/19/2017
10/20/2017 10/25/2017 10/27/2017
11/07/2017 11/09/2017 11/15/2017 11/17/2017
12/07/2017 12/27/2017 12/28/2017 01/09/2018
01/10/2018
01/11/2018 01/12/2018

199 Certificate of Service re 198 Notice of Appeal. (Ahmed, N) (Entered: 02/06/2017)
200 ORDER from U.S. Court of Appeals − Sixth Circuit re 198 Notice of Appeal filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Rhonda Kelso, Jacqueline Pemberton [Appeal Case Number 17−1144] (Ahmed, N) (Entered: 02/24/2017)
201 OPINION and JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 198 Notice of Appeal filed by Elnora Carthan, Michael Mays, Keith John Pemberton, Melisa Mays, Rhonda Kelso, Jacqueline Pemberton [Appeal Case Number 17−1144] (Ahmed, N) (Entered: 08/02/2017)
202 ORDER REASSIGNING CASE from District Judge John Corbett O'Meara to District Judge Judith E. Levy. (SSch) (Entered: 10/19/2017)
203 ORDER Regarding Second Status Conference in All Flint Water Cases − (In−Person Status Conference set for 10/25/2017 at 2:00 PM before District Judge Judith E. Levy) in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 10/19/2017)
204 AGENDA for October 25, 2017 Status Conference. (SBur) (Entered: 10/20/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 10/25/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 10/25/2017)
205 ORDER Regarding Issues Discussed at the October 25, 2017 Status Conference − (In−Person Status Conference set for 11/15/2017 at 10:00 AM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 10/27/2017)
206 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on November 1, 2017. [Supreme Court Case Number: 17−666] [Court of Appeals Case Number: 17−1144] (Krause, S) (Entered: 11/07/2017)
207 AGENDA for November 15, 2017 Status Conference. Signed by District Judge Judith E. Levy. (SBur) (Entered: 11/09/2017)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 11/15/2017. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 11/15/2017)
208 ORDER Regarding Issues Discussed at the November 15, 2017 Status Conference − (In−Person Status Conference set for 1/4/2018 at 2:00 PM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 11/17/2017)
Set Deadlines/Hearings: In−Person Status Conference reset for 1/11/2018 at 11:00 AM before District Judge Judith E. Levy. (SBur) (Entered: 12/07/2017)
209 AGENDA for January 11, 2018 Status Conference. Signed by District Judge Judith E. Levy. (SBur) (Entered: 12/27/2017)
210 LETTER from the US Supreme Court that a petition for writ of certiorari was filed on 12/20/17. [Supreme Court Case Number: 17−901] [Court of Appeals Case Number: 17−1144] (DWor) (Entered: 12/28/2017)
211 NOTICE of Intent to Appoint Senator Carl Levin and Former Wayne County Chief Judge Pro Tem Pamela Harwood as Facilitative Mediators Pursuant to E.D. Mich Local R. 16.4 − Entered by District Judge Judith E. Levy. (SBur) Modified on 1/9/2018 (SBur). (Entered: 01/09/2018)
212 CORRECTED NOTICE of Intent to Appoint Senator Carl Levin and Former Wayne County Chief Judge Pro Tem Pamela Harwood as Facilitative Mediators Pursuant to E.D. Mich Local R. 16.4 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 01/10/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 1/11/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 01/11/2018)
213 ORDER Regarding Matters Discussed at the January 11, 2018 Status Conference − (In−Person Status Conference set for 2/20/2018 at 11:00 AM before District

Case: 5:15-cv-14002 As of: 06/01/2019 03:20 PM EDT 31 of 31

02/07/2018 02/07/2018 02/20/2018 02/22/2018
02/27/2018 03/19/2018 03/19/2018 04/06/2018 04/09/2018

Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) (Entered: 01/12/2018)
214 STIPULATION to Defer Further Briefing Pending Consolidation by Andy Dillon, Nick Lyon, Rick Snyder (Bettenhausen, Margaret) (Entered: 02/07/2018)
TEXT−ONLY ORDER Granting 214 Stipulation. Signed by District Judge Judith E. Levy. (SBur) (Entered: 02/07/2018)
Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 2/20/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 02/20/2018)
215 ORDER Regarding Matters Discussed at the February 20, 2018 Status Conference − (In−Person Status Conference set for 4/5/2018 at 11:00 AM before District Judge Judith E. Levy) − in Courtroom 1 − Signed by District Judge Judith E. Levy. (SBur) Modified on 2/22/2018 (SBur). (Entered: 02/22/2018)
Set Deadlines/Hearings: In−Person Status Conference reset for 4/16/2018 at 2:00 PM before District Judge Judith E. Levy. (SBur) (Entered: 02/27/2018)
216 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 17−901] [Court of Appeals Case Number: 17−1144] (DWor) (Entered: 03/19/2018)
217 LETTER from the US Supreme Court denying the petition for writ of certiorari [Supreme Court Case Number: 17−666] [Court of Appeals Case Number: 17−1144] (SKra) (Entered: 03/20/2018)
218 ORDER consolidating cases 16−10444 and 15−14002. Signed by District Judge Judith E. Levy. (DPer) (Entered: 04/09/2018)
219 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *04/06/18*. Designated lead case number is *16−10444*. (DPer) (Entered: 04/09/2018)

 
 2:15-cv-14002-JCO-MKM Doc # 1 Filed 11/13/15 Pg 1 of 30 Pg ID 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Melisa Mays, individually and as next friend of three minor children, Michael Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, and Rhonda Kelso, individually and as next friend of one minor child, all on behalf of themselves and a class of all others similarly situated,

CLASS ACTION

Plaintiffs,

Case No. 15-

vs.

Hon.

Governor Rick Snyder, in his official capacity, and the

State of Michigan for prospective relief only; Daniel

Wyant, Liane Shekter Smith, Adam Rosenthal, Stephen

Busch, Patrick Cook, Michael Prysby, Bradley Wurfel all

in their individual capacities; Darnell Earley, Gerald

Ambrose, Dayne Walling, Howard Croft, Michael

Glasgow and Daugherty Johnson in their individual and

official capacities, and the City of Flint, a municipal

corporation, jointly and severally,

Defendants.

________________________________________________________________/

William Goodman P14173

Trachelle C. Young P63330

Julie H. Hurwitz P34720

Trachelle C Young & Associates

Goodman & Hurwitz, PC

PLLC

1394 E. Jefferson Ave.

2501 N Saginaw St

Detroit, MI 48207

Flint, MI 48505-4443

313-567-6170

810-239-6302

bgoodman@goodmanhurwitz.com

trachelleyoung@gmail.com

jhurwitz@goodmanhurwitz.com

Michael L. Pitt P24429 Cary S. McGehee P42318 Beth M. Rivers P36614 Pitt McGehee Palmer & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800
1

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mpitt@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com _________________________________________________________________/
COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF MONEY DAMAGES AND JURY DEMAND
INTRODUCTORY STATEMENT 1. This class action is pursued on behalf of tens of thousands of residents (“Class”) of the City of Flint (“Flint”), who from April 25, 2014 to the present, have experienced and will continue to experience serious personal injury and property damage caused by Defendants’ deliberate decision to expose them to the extreme toxicity of water pumped from the Flint River into their homes, schools, hospitals, workplaces and public places. 2. Defendants, who are all state of Michigan (“State”) or Flint government employees, acting under the color of law, deliberately deprived Plaintiffs and the Plaintiff Class of the rights and guarantees secured by the 14th Amendment to the United States Constitution in that they deprived Plaintiffs of life, liberty and property without due process of law when they took from Plaintiffs safe drinking water and replaced it with what they knew to be a highly toxic alternative solely for fiscal purposes. 3. “For more than 18 months, state and local government officials ignored irrefutable evidence that the water pumped from the Flint River exposed the
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Plaintiffs and the Plaintiff Class to extreme toxicity, causing serious and dire injury and health hazards, and property damage to the Flint water users. These state and local officials, Defendants herein, regularly assured the Flint water users that the water supplied from the Flint River was being properly treated, monitored and tested and was safe to consume and use. Information obtained through the Freedom of Information Act establishes that many of these assurances were known to be false when uttered: state and local officials were not properly monitoring or sampling the Flint River water and delayed in notifying the public of serious safety and health risks in a knowing and deliberate effort to conceal the truth from those who were being poisoned. The deliberately false denials about the safety of the Flint River water was as deadly as it was arrogant.”
4. The massive personal and property injuries experienced by Plaintiffs and the Class, and the ensuing environmental disaster, reaches constitutional proportions because defendants, acting under the color of law, both created and increased the risk of prolonged serious and life threatening dangers to Plaintiffs and the Class where none existed before.
5. The state and local government officials, Defendants herein, who made the decision to replace safe water with an alternative that created toxic water, violated the constitutional rights of Plaintiffs and Plaintiff Class members by acting
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in a manner that shocks the conscience and was deliberately indifferent to the those constitutional rights, as well as to the health and well-being of the Plaintiffs.
JURISDICTION AND VENUE 6. This is a civil action brought pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief together with monetary damages against Defendants for violation of Fourteenth Amendment of the United States Constitution. 7. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. § 1343(a)(3) and (4), which authorizes federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act. This Court has personal jurisdiction over Defendants named herein as public officials of the State of Michigan sued in their individual capacities and public officials, employees of the City of Flint sued in their official and individual capacities and the City of Flint for violations of plaintiffs’ constitutional rights. Similarly, the Court has jurisdiction over the Governor of the State of Michigan, in his official capacity, for prospective relief, exclusively. 8. Venue is proper in this Court as Defendants conduct their business in the Eastern District of Michigan.
PARTIES A. PLAINTIFFS
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9. Plaintiff representatives are citizens of the United States and at all relevant times were residents of Flint – individuals, home owners, parents and minors – who, since April 25, 2014, were and continue to be exposed to highly dangerous conditions created, caused and prolonged by Defendants’ deliberate decision to replace safe drinking water supplied by the City of Detroit’s water system with the extreme toxicity resulting from water pumped from the Flint River; and these Defendants continued failure to remediate these dangers notwithstanding their knowledge thereof. Plaintiffs bring this action on behalf of themselves and a Class of individuals who were injured in their persons or their property after April 25, 2014 because of their exposure to the toxic water pumped from the Flint Rivers.
B. DEFENDANTS 10. All individual Defendants are sued in their individual and/or official capacities as indicated below. 11. Defendant Rick Snyder is the Governor of the State of Michigan and is invested with executive power pursuant to Art. V, Section 1 of the Michigan Constitution. The Governor, is responsible for the management of state government for the health and welfare of its citizens and residents and is sued by plaintiffs and the Class in his official capacity exclusively for prospective equitable relief to correct the harm caused and prolonged by state government and to prevent future injury.
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12. Defendant State of Michigan operates its Department of Environmental Quality (“MDEQ”), which is responsible for overall management of the state department responsible for the environmental safety and health of Michigan citizens and residents. The State is sued because, acting through MDEQ, it made the final decision that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
13. Defendant Daniel Wyant (“Wyant”) currently is and at all relevant times was Director of MDEQ and is sued by Plaintiffs and the Plaintiff Class in his individual capacity because he was aware of and participated in the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
14. Liane Shekter Smith (“Smith”) was at all relevant times Chief of the Office of Drinking Water and Municipal Assistance for MDEQ, holding that position until October 19, 2015 when she was removed because of “mistakes” in the manner in which the Flint water crisis was handled. Smith is individually liable because during her term, as Chief of Drinking Water for MDEQ, she approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
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15. Adam Rosenthal (“Rosenthal”) was at all relevant times a Water Quality Analyst assigned to the Lansing District Office of the MDEQ. Rosenthal is individually liable because, as Water Quality Analyst for MDEQ, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
16. Stephen Busch (“Busch”) was at all relevant times District Supervisor assigned to the Lansing District Office of the MDEQ. Busch is individually liable because as District Office Supervisor of MDEQ he deliberately created, increased and prolonged the hazards by falsely reporting that anti-corrosive agents had been used to treat the highly corrosive Flint River water thereby enhancing the threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
17. Patrick Cook (“Cook”) was at all relevant times Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ. Cook is individually liable because, as Water Treatment Specialist District of MDEQ, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
18. Michael Prysby (“Prysby”) was at all relevant times Engineer assigned to District 11 (Genesee County) of the MDEQ. Prysby is individually liable because
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as Engineer assigned to District 11 because he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
19. Bradley Wurfel (“Wurfel) was at all relevant times was the Director of Communications for MDEQ. Wurfel is individually liable because as Director of Communications he was responsible for the deliberate misleading and inaccurate communications that increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
20. Darnell Earley (“Earley”) was the Emergency Manager appointed by the Governor on November 1, 2013 and served in this capacity until January 12, 2015. Earley is individually liable because during his term as Emergency Manager of Flint he deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
21. Gerald Ambrose (“Ambrose”) was the Emergency Manager appointed by the Governor on January 13, 2015 and served in this capacity until April 28, 2015. Ambrose is individually liable because during his term as Emergency Manager of Flint he deliberately increased and prolonged the hazards, threats and dangers that
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arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
22. Dayne Walling (“Walling”) was at all relevant times Mayor of Flint from August 4, 2009 until November 9, 2015 when he was unseated by Karen Weaver. Walling is individually liable because, as Mayor, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
23. Howard Croft (“Croft”) was at all relevant times Director of Public Works for the City of Flint. Croft is individually liable because as Director of Public Works, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
24. Michael Glasgow (“Glasgow”) was at all relevant times Utilities Administrator for the City of Flint. Glasgow is individually liable because as Utilities Administrator, he deliberately created, increased and prolonged the hazards of using Flint River water because he provided the MDEQ with misleading and inaccurate reports about the threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
25. Daugherty Johnson was at all relevant times the Utilities Administrator for the City of Flint. Johnson is individually liable because, as Utilities
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Administrator, he approved of, and thereby participated inthe decisions that deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
26. The City of Flint is a municipal corporation, so authorized by the laws of the State of Michigan that operates Department of Public Works and provides water to its residents and property owners as part of its responsibilities and services. The City of Flint is liable because, despite the protests of a number of elected and appointed officials within the organization, the municipal corporation itself, through its policy makers, deliberately created, increased and prolonged the hazards, threats and dangers that arose by replacing of safe drinking washing and bathing water with a highly toxic alternative.
STATEMENT OF FACTS REGARDING THE MAYS FAMILY 27. Plaintiff Melissa Mays, age 37, is married to plaintiff Michael Mays, age 40 and is mother and next friend of three minor children, ages 17, 12, and 11. 28. The Mays family at all relevant times lived in a single family home built around 1910 on Beecher Street in Flint. 29. Melissa and Michael Mays were the equitable owners of the home located on Beecher Street. 30. From April 18, 2014 until approximately September, 2014, members of the Mays family, unaware of the toxic nature of the tap water supplied by Flint,
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regularly used the water for drinking, cooking, washing, bathing and clothes washing.
31. In September, 2014 the Mays family, in response to an advisory to boil all drinking water coming from their taps, discontinued drinking or cooking with the water supplied by Flint. The family was led to believe that the water would still be safe for washing, bathing and clothes washing. The family continued to wash, bathe and wash clothing with the water until the summer of 2015 when the family became aware ofthe highly toxic and deleterious nature of the supplied water.
32. As a proximate result of Defendants actions, as set forth herein, members of the Mays family have experienced serious physical and emotional injury due to their exposure to the toxic water, including but not limited to:
a. High levels of lead and copper in their bloodstreams, brains, bones and other organs;
b. Skin lesions and hair loss; c. Chemical induced hypertension; d. Autoimmune disorder; e. Neurological disorders such as “brain fog”, seizure like
convulsions, vision loss, memory loss; f. Psychological disorders such as depression, chronic anxiety, post-
traumatic stress disorder and an inability to cope with normal stress. 33. Melissa and Michael Mays have experienced property damage in the nature of irreparably damaged service line pipes resulting from Flint’s use of Flint
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water without use of an anti-corrosive agent; as well, they have sustained substantial loss in the value of their property.
STATEMENT OF FACTS REGARDING THE PEMBERTON FAMILY 34. Keith John Pemberton and Jacqueline Pemberton are 67 and 66 years
old and live on Custer Street in Flint. 35. The Pembertons own the home on Custer Street. 36. As a proximate result of Defendants actions, as set forth herein, the
Pembertons have experienced property damage in the nature of irreparably damaged service line pipes resulting from Flint’s use of Flint water without use of an anticorrosive agent, as well as the substantial loss in the value of their property. They have experienced serious physical and emotional injury due to their exposure to the toxic water, including but not limited to:
a. High levels of lead and copper in their bloodstreams, brains, bones and other organs;
b. Skin lesions and hair loss; c. Neurological disorders such as “brain fog”, seizure like
convulsions, vision loss, memory loss; d. Chronic and acute abdominal and stomach discomfort; e. Psychological disorders such as depression, chronic anxiety and an
inability to cope with normal stress. STATEMENT OF FACTS REGARDING ELNORA CARTHAN
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37. Elnora Carthan is a 70 year old widow who lives alone at, a home she owns in Flint and where she has lived since 1976.
38. In April, 2014, after the actions of these Defendants caused her water to become highly toxic, when it had once been safe and nourishing, Ms. Carthan began to boil her water but also continued to cook with it and to wash and bathe with it.
39. Finally, in August, 2015, the opportunity arose for her to have her water tested for the presence of lead and other metals. This opportunity arose due to the efforts of Virginia Polytechnic Institute and State University (“Virginia Tech”), notwithstanding the continuous denials and roadblocks to such testing posed by these Defendants. As a result, she determined that the lead levels in her water vastly exceeded anything close to acceptable and were, in fact, extremely dangerous.
40. As a proximate result of Defendants actions, as set forth herein, Ms. Carthan has suffered property damage as well as a loss in the value of her property.
41. As a proximate result of Defendants actions, as set forth herein, Ms. Carthan has experienced serious physical and emotional injury due to her exposure to the toxic water, including but not limited to:
a. Skin lesions and dermatologic pathology; b. Neurological disorders, including but not limited to constant
exhaustion and memory loss; c. Chronic and acute respiratory disorders including, but not limited
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d. Psychological disorders such as depression, chronic anxiety, posttraumatic stress disorder and an inability to cope with normal stress.
STATEMENT OF FACTS REGARDING THE KELSO FAMILY 42. Rhonda Kelso is a 52 year old woman who suffers from several disabilities, including the results of a stroke, spastic paraparesis and bi-polar disorder. She owns her home located in Flint. She and her family have lived in that home since 1993. 43. As a result of the toxicity in the water, these Defendants have caused massive damage to the water pipes in the Keslo home, causing extreme disruption, inconvenience, discomfort and emotional distress. 44. Ms. Kelso lives at the aforementioned home with her minor daughter “K.E.K.” who is 12 years old. K.E.K. is a special needs student in school and suffers from a number of disabilities including, but not limited to hearing impairment, cardiac problems, and developmental delays involving speech and language. 45. Both Rhonda Kelso and K.E.K. drank the toxic water from April, 2014 until the Autumn of 2014. They bathed, washed and cooked with the water until at least January, 2015. 46. As a proximate result of Defendants actions, as set forth herein, Ms. Kelso has suffered a loss in the value of her property.
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47. As a proximate result of Defendants actions, as set forth herein, Ms. Kelso has experienced serious physical and emotional injury due to her exposure to the toxic water, including but not limited to:
a. Skin lesions and dermatologic pathology, including hair loss; b. Chronic throat and respiratory disorders, including aggravation of
asthma;
c. Aggravation of the pre-existing conditions and disabilities, referenced above;
d. Psychological disorders such as depression, chronic anxiety, posttraumatic stress disorder and an inability to cope with normal stress, all due in part to the injuries and damage caused to her daughter K.E.K., as set forth below.
48. As a proximate result of Defendants actions, as set forth herein. K.E.K. has experienced serious physical and emotional injury due to her exposure to the toxic water, including but not limited to:
a. Heightened levels of lead in her blood; b. Inability to overcome her developmental disorders, particularly
speech and language development and, to some extent, a worsening of those disorders; c. Aggravation of the pre-existing conditions and disabilities, referenced above;
d. Psychological and emotional problems. STATEMENT OF FACTS REGARDING DEFENDANTS’ DECISION TO REPLACE SAFE DRINKING WATER WITH A TOXIC ALTERNATIVE
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49. From 1964 to 2014, Flint water users received their water from Lake Huron via the Detroit water system.
50. During this 50 year span, the Flint water users enjoyed safe, clean, fresh water in their homes, businesses, hospitals other places of public services.
51. In 2011, Flint government officials commissioned a study to determine if the Flint River could be safely used by the city as the primary source of drinking water for its more than 31,000 users.
52. According to recent media reports, the report stated that the water from the Flint River was highly corrosive and could not be used safely without an anticorrosive agent to prevent lead, copper and other heavy metals from leaching from lead, copper and iron based water lines.
53. According to recent media reports, in 2013, Flint government officials delivered to MDEQ the report that stated and warned that the Flint River water was highly corrosive and could not be used as a primary source of drinking water unless treated with anti-corrosive agents.
54. In March, 2013, the Flint City Council approved a resolution to secure future water service from a regional water authority known as the Karegnondi Water Authority (“KWA”) scheduled to become operational in 2016.
55. In April 2014, although safe water from Detroit remained available on a temporary basis until the KWA became operational two years later, Flint Emergency Manager at the time Defendant Earley ordered Flint to draw water from
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the Flint River, even though he knew that the water was highly corrosive and dangerous to people and property when distributed without proper anti-corrosive treatment.
56. According to recent media reports, defendants had been informed by the 2011 report that use of the Flint River water, without a proper anti-corrosive treatment, would create a condition dangerous to health and property.
57. Beginning in April 2014, Defendants were fully aware that the required and necessary anti-corrosive was not being used in during the distribution of Flint River water to Flint residents, families and home owners.
58. It has been estimated that the daily cost of the anti-corrosive agent would have been $60.
59. Flint water users, having enjoyed decades of safe, clean and fresh water via the Detroit water system, knew almost immediately after the switch to Flint River water that something was not right about this new water supply.
60. Within days after the switch, Defendants began receiving complaints from water users that the water was cloudy and foul in appearance, taste and odor.
61. During the next 8 months, Flint water users expressed their concerns about water quality in a multiple of ways including letters, emails and telephone calls to Flint and MDEQ officials, the media and through well publicized demonstrations on the streets of Flint.
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62. After 8 months of undertaking this failed “experiment,” the only reasonable response to the mounting complaints would have been to reconnect the Flint water system to the Detroit water system. Instead, Defendants ignored the protests, went into deliberate denial mode, offered ineffective solutions and continued to falsely reassure and insist that the water was safe even though they knew that the foul taste, odor and appearance probably was the result of using highly corrosive Flint River water, untreated with the proper anti-corrosive agents, which caused particulate lead to contaminate the water.
63. Beginning almost immediately after the Flint River became the primary source of water for the Flint users, the MDEQ and Flint officials were aware of elevated levels of Trihalomethanes (“TTHM”) in the water and that these levels were above the legal limit.
64. After about 7 months of elevated TTHM levels, Flint water users received a notice in January, 2015 from Flint stating that the water was not in compliance with the federal Safe Drinking Water Act because unlawful levels of TTHMs.
65. Within a few weeks of the issuance of the TTHM notice, Flint City Council members approached Emergency Manager Defendant Earley demanding that a reasonable response to the health risks would be that Flint should reconnect with Detroit water. Earley refused to act as requested by members of the City Council.
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66. At this same time, representatives of the Detroit water system expressed interest in re-establishing a relationship with Flint and offered to waive the $4 million re-connect fee in order re-establish the relationship. Defendant Earley rejected this initiative, and deliberately continued to mislead Flint residents to believe that their water was safe.
67. On January 20, 2015, citizen protests mounted, fueled in part by encouragement from environmental activist Erin Brockovich and her associate, water expert Bob Bowcock. These advocates offered advice and assistance to the protesting Flint water users who were now very concerned about the health risks they faced by this toxic water.
68. On January 13, 2015, Earley left his position as Emergency Manager and was replaced by Emergency Manager Ambrose. On January 29, 2015, Detroit Director of Water offered to Emergency Manager Ambrose another opportunity to protect Plaintiffs and the Plaintiff Class from known dangers and to use Detroit water. Notwithstanding Detroit’s overture, Emergency Manager Ambrose rejected this offer, and deliberately continued to mislead Flint residents to believe that their water was safe.
69. On February 17, 2015, Flint water users staged public demonstrations demanding that Flint re-connect with Detroit. Once again Ambrose refused to restore Detroit water for Flint water users and deliberately continued to endanger Plaintiffs and Plaintiff Class.
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70. In the meantime, and according to emails received via the Freedom of Information Act, the MDEQ (including named Defendants from that agency) knew that Flint residents were being exposed to particulate lead on a daily basis. Moreover, MDEQ representatives, including named Defendants, knew that inaccurate test results were providing false assurance to residents about the true lead levels in the water.
71. On March 25, 2015, Flint City Council voted to re-connect to Detroit’s water system. Ambrose rejected this vote and continued to refuse to re-connect the Flint system back to the Detroit water system.
72. In June of 2015, EPA representative Miquel Del Toral wrote a detailed memo outlining numerous dangerous problems with the water being pumped from the Flint River including unacceptable levels of lead. This report was shared with MDEQ defendants Shekter-Smith, Cook, Busch and Prysby.
73. During the spring and summer of 2015, Professor Marc Edwards (“Professor Edwards”) and other experts from Virginia Tech tested 277 drinking water samples and found that 10% of the samples had lead levels of 25 parts per billion (ppb), substantially in excess of the federal action level of 15 ppb.
74. Professor Edwards also determined that the Flint River water was 19 times more corrosive than the water pumped from Lake Huron by the Detroit water system.
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75. When Professor Edwards published the results of his studies, demands for the re-connecting to the Detroit water system started to be made to the Defendants. These demands came from national and regional public interest groups such as the ACLU of Michigan, the Natural Resources Defense Council and local public interest groups such as the Michigan Chapter of the National Conference Black Lawyers, NAACP-Michigan State Conference, Michigan Nurses Association, Democracy Defense League Water Task Force, Water You Fighting For, Concerned Pastors for Social Action, Coalition for Clean Water and other similar public interest groups.
76. At this time, public interest groups investigating the growing crisis noted that Flint did not have records of which user had or did not have lead service pipes or plumbing. Flint was required by Federal law to maintain these records so that Flint and the MDEQ could alter those users who were most at risk and that proper testing could be carried out. The absence of these required records was increasing the risk of harm to many Flint water users.
77. In addition, Dr. Mona Hanna-Attisha MD of Hurley Hospital demonstrated a dramatic and dangerous spike in elevated blood lead levels in a large cohort of Flint children corresponding with the time of exposure to the highly corrosive Flint River water. Her disturbing results were published in August of 2015.
78. Faced with overwhelming evidence that the water was unsafe to drink and a source of lead poisoning for the children of Flint and other vulnerable persons,
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Genesee County Health Officials, on October 1, 2015, issued a public health emergency advising Flint residents not to drink the tap water.
79. Although reconnecting to the Detroit water system was the only reasonable option to protect the health and safety of the Flint water users, and this option should have been exercised within weeks of the appearance of the foul water, Defendants deliberately chose not to do so. Instead, on October 2, 2015, state officials announced that the State would provide water filters to Flint water users in a useless effort to ameliorate the problem.
80. On October 8, 2015, Defendant Snyder recognized that he could no longer pretend that the water from the Flint River was safe. He finally ordered Flint to re-connect with the Detroit water system.
81. However, based on information and belief, due to the prolonged exposure of contaminated water without adequate anti-corrosive agents, Plaintiffs and Plaintiff Class members continue to be exposed to toxic water until such time that pipes and services lines that were damaged by corrosive water from the Flint River can be replaced.
CLASS ALLEGATIONS 82. This action is brought by the named Plaintiffs on behalf of individuals who from April 25, 2014 to present were exposed to toxic Flint water and experienced an injury to their person or property or who in the future will be so injured.
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83. The number of injured individuals who have been injured by exposure to toxic Flint water is in the tens of thousands. The number of class members is sufficiently numerous to make class action status the most practical method for Plaintiffs to secure redress for injuries sustained and class wide equitable relief.
84. There are questions of law and fact raised by the named Plaintiffs’ claims common to, and typical of, those raised by the Class they seek to represent.
85. The violations of law and resulting harms alleged by the named Plaintiffs are typical of the legal violations and harms suffered by all Class members.
86. Plaintiff Class representatives will fairly and adequately protect the interests of the Plaintiff class members. Plaintiffs’ counsel are unaware of any conflicts of interest between the class representatives and absent class members with respect to the matters at issue in this litigation; the class representatives will vigorously prosecute the suit on behalf of the Class; and the class representatives are represented by experienced counsel. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving personal and property damage.
87. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
88. The maintenance of the action as a class action will be superior to other available methods of adjudication and will promote the convenient administration of justice. Moreover, the prosecution of separate actions by individual members of the
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Class could result in inconsistent or varying adjudications with respect to individual members of the Class and/or one or more of the Defendants.
89. Defendants have acted or failed to act on grounds generally applicable to all Plaintiffs, necessitating declaratory and injunctive relief for the Class.
COUNT I-CAUSE OF ACTION: VIOLATION OF 42 U.S.C. § 1983 SUBSTANTIVE DUE PROCESS – STATE CREATED DANGER PLAINTIFFS V ALL DEFENDANTS 90. The due process clause of the 14th Amendment provides that the state
may not deprive a person of life, liberty or property without due process of law. 91. These Defendants deliberately withdrew water that was safe for
drinking, cooking, washing and bathing from Plaintiffs and the Plaintiff Class. They deliberately exposed Plaintiffs and the Plaintiff Class to dangerous, unsafe and untreated (or inadequately treated) Flint River water knowing that it could and would result in widespread permanent serious damage caused by the toxic water including the irreversible lead poisoning of children and other vulnerable persons. This conduct was culpable in the extreme.
92. Plaintiffs and Class Members were foreseeable victims of the decision to replace safe water with a toxic alternative.
93. The decisions and actions to deprive Plaintiffs and the Plaintiff Class of clean and healthy water and to replace that water with toxic, unhealthy and unsafe water constituted affirmative acts that caused and/or increased the risk of harm, both
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property damage, as well as physical and emotional injury, to Plaintiffs and Plaintiff Class.
94. At all times herein Defendants acted under color of law. 95. The unconstitutional acts of Earley and Ambrose as Emergency Managers executes a policy statement or decision officially adopted by the City of Flint. 96. As a direct and proximate result of the unconstitutional acts of Defendants as alleged in this complaint, Plaintiffs and Plaintiff Class members have experienced serious and in some cases life threatening and irreversible bodily injury; Plaintiffs and Plaintiff Class members have and will incur substantial economic losses in the nature of medical expenses, lost wages; Plaintiffs and Plaintiff Class members are entitled to an award of non-economic damages in the nature of pain and suffering, embarrassment, outrage, mental anguish, fear and mortification, and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort, neuropathy and similar symptoms. 97. Plaintiffs and Plaintiff Class members have experienced property damage to the homes and places of business in the nature of lost property value and seek damages to remediate the permanent damage caused by the use of corrosive water without proper anti-corrosive treatment. 98. The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages.
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COUNT II -CAUSE OF ACTION: VIOLATION OF 42 U.S.C. § 1983 SUBSTANTIVE DUE PROCESS – BODILY INTEGRITY PLAINTIFFS v ALL DEFENDANTS
99. The due process clause of the 14th Amendment includes an implied right to bodily integrity.
100. Defendants violated Plaintiffs’ and Plaintiff Class members’ right to bodily integrity, insofar as:
a. Defendants a duty to protect Plaintiffs and Plaintiff Class members from a foreseeable risk of harm from contaminated water;
b. Defendants knew of the serious medical risks associated with exposure to contaminated water;
c. Defendants failed to protect Plaintiffs and Plaintiff Class members from the known risks associated with exposure to contaminated water; and
d. Plaintiffs and Plaintiff Class members suffered bodily harm as a result of their exposure to contaminated water.
101. Defendants’ conduct in exposing Flint residents to toxic water was so egregious and so outrageous that it shocks the conscience. Defendants had time for deliberation in their decisions to expose Flint residents to toxic water, and their decision to do so was made with deliberate indifference to the serious medical risks.
102. As a direct and proximate result of the unconstitutional acts of Defendants as alleged in this complaint, Plaintiffs and Plaintiff Class members have
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experienced serious and in some cases life threatening and irreversible bodily injury; Plaintiffs and Plaintiff Class members have and will incur substantial economic losses in the nature of medical expenses, lost wages; Plaintiffs and Plaintiff Class members are entitled to an award of non-economic damages in the nature of pain and suffering, embarrassment, outrage, mental anguish, fear and mortification, and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort, neuropathy and similar symptoms.
103. The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages.
RELIEF REQUESTED Accordingly, plaintiffs request the following relief from the court:
a. An order certifying this case as a Class Action; b. An order declaring the conduct of defendants
unconstitutional; c. An order of equitable relief to remediate the harm caused by
defendants unconstitutional conduct including repairs or property, establishment of as medical monitoring fund and appointing a monitor to oversee the water operations of Flint for a period of time deemed appropriate by the court; d. An order for an award of compensatory damages; e. An order for an award of punitive damages;
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f. An order for an award of actual reasonable attorney fees and litigation expenses;
g. An order for all such other relief the court deems equitable.

Dated: November 13, 2015

Respectfully submitted,
By:/s/ Michael L. Pitt P24429 Michael L. Pitt P24429 Cary S. McGehee P42318 Beth M. Rivers P36614 Pitt McGehee Palmer & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN

Melisa Mays, individually and as next friend of three minor children, Michael Mays, Jacqueline Pemberton, Keith John Pemberton, Elnora Carthan, and Rhonda Kelso, individually and as next friend of one minor child, all on behalf of themselves and a class of all others similarly situated,

CLASS ACTION

Plaintiffs,

Case No. 15-

vs.

Hon.

Governor Rick Snyder, in his official capacity, and the

State of Michigan for prospective relief only; Daniel

Wyant, Liane Shekter Smith, Adam Rosenthal, Stephen

Busch, Patrick Cook, Michael Prysby, Bradley Wurfel all

in their individual capacities; Darnell Earley, Gerald

Ambrose, Dayne Walling, Howard Croft, Michael

Glasgow and Daugherty Johnson in their individual and

official capacities, and the City of Flint, a municipal

corporation, jointly and severally,

Defendants.

_________________________________________________________________/

William Goodman P14173

Trachelle C. Young P63330

Julie H. Hurwitz P34720 Goodman & Hurwitz, PC 1394 E. Jefferson Ave. Detroit, MI 48207 313-567-6170 bgoodman@goodmanhurwitz.com jhurwitz@goodmanhurwitz.com

Trachelle C Young & Associates PLLC 2501 N Saginaw St Flint, MI 48505-4443 810-239-6302 trachelleyoung@gmail.com

Michael L. Pitt P24429 Cary S. McGehee P42318 Beth M. Rivers P36614 Pitt McGehee Palmer & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com
29

2:15-cv-14002-JCO-MKM Doc # 1 Filed 11/13/15 Pg 30 of 30 Pg ID 30
brivers@pittlawpc.com
__________________________________________________________________/ DEMAND FOR TRIAL BY JURY
Plaintiffs demand a trial by jury as to all those issues triable as of right.

Dated: November 13, 2015

Respectfully submitted,
By:/s/ Michael L. Pitt P24429 Michael L. Pitt P24429 Cary S. McGehee P42318 Beth M. Rivers P36614 Pitt McGehee Palmer & Rivers, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com

30

 
 5:15-cv-14002-JCO-MKM Doc # 111 Filed 05/25/16 Pg 1 of 64 Pg ID 1639

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA MAYS, individually and as next

friend of three minor children, Michael Mays,

Jacqueline Pemberton, Keith

John

Pemberton, Elnora Carthan, and Rhonda

Kelso, individually and as next friend of one

minor child, all on behalf of themselves and a

class of all others similarly situated,

Plaintiffs,

Case No.: 15-14002
Hon. John Corbett O’Meara Mag. Judge Mona K. Majzoub

vs.

GOVERNOR RICK SNYDER, in his individual and official capacities, and the State of Michigan for prospective relief only; Daniel Wyant, Nick Lyon, Andy Dillon, Liane Shekter Smith, Adam Rosenthal, Stephen Busch, Patrick Cook, Michael Prysby, Bradley Wurfel all in their individual capacities; Jeff Wright, Edward Kurtz, Darnell Earley, Gerald Ambrose, Dayne Walling, Howard Croft, Michael Glasgow and Daugherty Johnson in their individual and official capacities, and the City of Flint, a municipal corporation, jointly and severally,

Defendants.

William Goodman P14173 Julie H. Hurwitz P34720 Goodman & Hurwitz, PC Attorneys for Plaintiffs 1394 E. Jefferson Ave. Detroit, MI 48207 313-567-6170

Trachelle C. Young P63330 Trachelle C Young & Associates PLLC Attorneys for Plaintiffs 2501 N Saginaw St Flint, MI 48505-4443 810-239-6302 trachelleyoung@gmail.com

5:15-cv-14002-JCO-MKM Doc # 111 Filed 05/25/16 Pg 2 of 64 Pg ID 1640

bgoodman@goodmanhurwitz.com jhurwitz@goodmanhurwitz.com
Michael L. Pitt (P24429) Cary S. McGehee (P42318) Beth M. Rivers (P33614) Peggy G. Pitt (P31407) Pitt McGehee Palmer & Rivers, PC Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 248-398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com ppitt@pittlawpc.com
Robin L. Greenwald William Walsh WEITZ & LUXENBERG P.C. Attorneys for Plaintiffs 700 Broadway New York, New York 10003 Telephone: (212) 558-5500 rgreenwald@weitzlux.com wwalsh@weitzlux.com
John M. Broaddus WEITZ & LUXENBERG P.C. Attorneys for Plaintiffs 200 Lake Drive east, Suite 205 Cherry Hill, New Jersey 08002 Telephone: (856) 755-1115 jbroaddus@weitzlux.com
Anthony Chubb (P72608) Interim Chief Legal Officer William Y. Kim (P76411) David B. Roth (P77971) Angela Wheeler (P64079)

Deborah A. LaBelle (P31595) Law Offices of Deborah A. LaBelle Attorneys for Plaintiffs 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 (734) 996-5620 deblabeIle@aol.com
Paul F. Novak P39524 Gregory Stamatopolous P74199 John Hughes P76455 MILBERG LLP Attorneys for Plaintiffs Chrysler House 719 Griswold Street, Suite 620 Detroit, Michigan 48826 Telephone: (313) 309-1760 pnovak@milberg.com gstamatopolous@milberg.com jhughes@milberg.com
Brian McKeen P34123 Salvatore Amodeo P80290 McKEEN & ASSOCIATES, PC Attorneys for Plaintiffs 645 Griswold Street, Suite 4200 Detroit, Michigan 48226 Telephone: (313) 961-4400 BjMcKeen@mckeenassociates.com Samodeo@mckeenassociates.com
Richard S. Kuhl (P42042) Margaret A. Bettenhausen (P75046) Nate Gambill (P75506) Attorneys for Governor Rick Snyder Michigan Department of Attorney General Environment, Natural Resources, and Agriculture Division 525 West Ottawa Street

5:15-cv-14002-JCO-MKM Doc # 111 Filed 05/25/16 Pg 3 of 64 Pg ID 1641

Assistant City Attorneys

P.O. Box 30755

City of Flint Department of Law

Lansing, MI 48933

Attorneys for Darnell Earley, Gerald

(517) 373-7540

Ambrose, Dayne Walling, Howard Croft, Fax: (517) 373-1610

Michael Glasgow and Daugherty Johnson kuhlr@michigan.gov

1101 S. Saginaw, 3rd Floor

bettenhausenm@michigan.gov

Flint, MI 48502

gambilln@michigan.gov

(810)766-7146

achubb@cityofflint.com

Charles E. Barbieri (P31793)

wkim@cityofflint.com

Bruce A. Vande Vusse (P28547)

droth@cityofflint.com

Ray H. Littleton II (P69733)

awheeler@cityofflint.com

Allison M. Collins (P78849)

Foster Swift Collins & Smith, P.C.

Philip A. Grashoff, Jr. (P14279)

Attorneys for Patrick Cook, Michael

Dennis K. Egan (P29116)

Prysby and Adam Rosenthal

Krista A. Jackson (P66303)

313 S. Washington Square

Kotz Sangster Wysocki, P.C.

Lansing, MI 48933

Attorneys for Stephen Busch

(517) 371-8155

36700 Woodward Ave., Suite 202

cbarbieri@fosterswift.com

Bloomfield Hills, Michigan 48304

(248) 646-1050

Jay M. Berger (P57663)

degan@kotzsangster.com

Clark Hill PLC

kjackson@kotzsangster.com

212 E Grand River Ave

Lansing, MI 48906-4328

Frederick A. Berg, Jr. (P38002)

(517) 318-3043

Sheldon H. Klein (P41062)

jberger@clarkhill.com

Butzel Long

Michael J. Pattwell (P72419)

Attorney for City of Flint

Clark Hill PLC

150 W. Jefferson Avenue, Suite 100

Attorney for Defendants Daniel Wyant

Detroit MI 48226

and BradleyWurfel

(313) 225-7000

212 E. Grand River Ave.

bergf@butzel.com

Lansing, MI 48906

klein@butzel.com

(517) 318-3043

mpattwell@clarkhill.com

____________________________________________________________________/

FIRST AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF MONEY DAMAGES AND JURY DEMAND

5:15-cv-14002-JCO-MKM Doc # 111 Filed 05/25/16 Pg 4 of 64 Pg ID 1642

TABLE OF CONTENTS

Page

INTRODUCTORY STATEMENT ...........................................................................1
SUMMARY OF THE CONSTITUTIONAL AND CIVIL RIGHTS VIOLATIONS AND INJURIES ALLEGED IN THIS FIRST AMENDED COMPLAINT……………………………………………………..….1
JURISDICTION ......................................................................................................... 3
PARTIES....................................................................................................................4
A. Plaintiffs ........................................................................................................4
THE MAYS FAMILY ...............................................................................................5
THE PEMBERTON FAMILY ..................................................................................6
THE CARTHAN FAMILY .......................................................................................6
THE KELSO FAMILY..............................................................................................7
B. Defendants .....................................................................................................7
STATEMENT OF FACTS ......................................................................................16
CLASS ALLEGATIONS ........................................................................................36
COUNT I – CAUSE OF ACTION 42 U.S.C. § 1983 – 14th Amendment Substantive Due Process – State Created Danger – All Defendants .........................................................................................38 COUNT II-CAUSE OF ACTION 42 U.S.C. § 1983 – 14th Amendment Substantive Due Process – Bodily Integrity – All Defendants ........................................................................................................41
COUNT III-CAUSE OF ACTION 42 U.S.C. § 1983 – 5th and 14th Amendments Equal Protection of the Law: Racebased – Plaintiffs v. Snyder, Dillon, Wright, Ambrose, Kurtz and Earley ….……42
COUNT IV-CAUSE OF ACTION 42 U.S.C. § 1983 – 5th and 14th Amendments Equal Protection of the Law: Wealth-based – Plaintiffs v. Snyder, Dillon, Wright, Walling, Ambrose, Kurtz and

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Earley……………………………………………………………………………...46 COUNT V-CAUSE OF ACTION 42 U.S.C. § 1985(3) Invidious Racial Animus – Plaintiffs v. Snyder, Dillion, Wright, Walling, Ambrose, Kurtz, and Earley .......................................................50 COUNT VI-CAUSE OF ACTION MCL 37. 2302 – Violation of Public Service Provisions of ELCRA – Plaintiffs v. Snyder, Dillion, Wright, Walling, Ambrose, Kurtz and Earley, Flint ....................53 PRAYER FOR RELIEF ..........................................................................................57 JURY DEMAND .....................................................................................................57
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INTRODUCTORY STATEMENT 1. This class action is pursued on behalf of tens of thousands of residents

and other Flint water users – adults, children, business owners, homeowners,

workers, students, and all other victims of Defendants’ unconstitutional and unlaw-

ful conduct – who from April 25, 2014 to the present (the “Class Period”), have

experienced and will continue to experience serious personal injury and property

damage caused by Defendants’ deliberate misconduct. Defendants caused a pub-

lic health crisis by exposing Plaintiffs to contaminated water. Defendants also

exacerbated the crisis by concealing and misrepresenting its scope, failing to

take effective remedial action to eliminate it, and then lying about it to cover up

their misconduct.

Summary of the Constitutional and Civil Rights Violations and Injuries Alleged in this First Amended Complaint:

i. Due process based on state created danger doctrine: Plaintiffs have

sustained violations of their substantive due process rights, including their funda-

mental right to not have the state create, inflict and/or exacerbate dangers through

the culpable actions of public officials;

ii.

Due process based on bodily integrity doctrine: Plaintiffs have sus-

tained violations of their substantive due process rights, including their fundamen-

tal right to not have their bodily integrity violated;

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iii. Equal protection, race: Plaintiffs have sustained serious injuries as a result of some of the Defendants’ decision to deliver a superior water product to the water users in the remainder of Genesee County because that community was predominately white, while at the same time delivering a grossly inferior water product to water users in Flint because that community was predominately African American;
iv. Equal protection, wealth: Plaintiffs have sustained serious injuries as a result of some of the Defendants’ decision to protect the health of the water users in the remainder of Genesee County because that community was predominately more affluent and at the same time disregard the health of water users in Flint because that community was predominately poor;
v. Violation of 42 U.S.C. § 1985(3): Plaintiffs have sustained serious injuries as a result of the conspiracy of two or more of the Defendants to directly or indirectly conspire to violate Plaintiffs’ constitutional rights, said conspiracy being based on invidious racial animus;
vi. Violation of Elliot Larsen Civil Rights Act (“ELCRA”): Plaintiffs have sustained serious injuries as a result of their denial of the full and equal enjoyment of services provided by some of the Defendants because they were residents of a predominately African American community; and
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vii. United States Environmental Protection Agency (“EPA”) Negligence: Plaintiffs have sustained serious injuries as a result of the actions of the EPA. An administrative claim against the EPA was filed on April 25, 2016 pursuant to the Federal Tort Claims Act. It is anticipated that on October 25, 2016, or thereafter, the EPA will be joined as an additional party defendant to this action.
2. Plaintiffs sustained personal injury, property damage, economic and emotional injury as a result of the constitutional and civil rights violations of the Defendants.
JURISDICTION 3. This is a civil action brought pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief together with monetary damages against Defendants for violations of the Thirteenth and Fourteenth Amendments of the United States Constitution, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, et seq. 4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, which authorizes federal courts to decide cases concerning federal questions; 28 U.S.C. §1343(a)(3) and (4), which authorizes federal courts to hear civil rights cases; and 28 U.S.C. § 2201, the Declaratory Judgment Act and supplemental jurisdiction over the Elliot Larsen Civil Rights Act claim (MCL 37.2202) pursuant to 28 U.S.C. § 1367.
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5. This Court has personal jurisdiction over Defendants named herein as public officials of the State of Michigan, including the Emergency Managers, sued in their individual capacities; and public officials and employees of the City of Flint, sued in their official and individual capacities; the Genesee County Drain Commissioner, sued in his official and individual capacity; and the City of Flint for its customs, policies or practices which affirmatively caused and/or contributed to the violations of Plaintiffs’ Constitutional rights.
6. Similarly, this Court has personal jurisdiction over the Governor of the State of Michigan, in his individual and official capacity, and the State of Michigan, both for prospective relief, exclusively.
7. Venue is proper in this Court as Defendants conduct their business in the Eastern District of Michigan.
PARTIES A. PLAINTIFFS
8. Plaintiff representatives are citizens of the United States, and at all relevant times were residents of Flint and/or regular users of water from the City of Flint – individuals, home owners, business owners, property owners, parents and minors – who, since April 25, 2014, were exposed and continue to be exposed to highly dangerous conditions created, caused and prolonged by Defendants’ deliberate decision to (1) use the toxic Flint River as a primary drinking source; (2)
4

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conceal the resulting public health crisis; and (3) exacerbate and prolong the harm by failing to effectively remediate the public health crisis they created and attempted to conceal.
9. Plaintiffs bring this action on behalf of themselves and a Class of individuals and entities who were injured in their persons or their property after April 25, 2014.
10. Unless otherwise noted, the term ”Plaintiffs,” as used in this First Amended Complaint, shall mean Plaintiffs and all members of the Class they purport to represent.
THE MAYS FAMILY 11. Plaintiff Melissa Mays, age 37, is married to Plaintiff Michael Mays, age 40, and is mother and next friend of three minor children, ages 17, 12, and 11. 12. At all relevant times, the Mays family lived in a single family home built around 1910 located on Beecher Street in Flint, Michigan. Melissa and Michael Mays were the equitable owners of the home located on Beecher Street. 13. Members of the Mays family regularly used the water for drinking, cooking, washing, bathing and clothes washing at various times during the Class Period.
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14. As a proximate result of Defendants’ actions, as set forth herein, members of the Mays family have experienced and will continue to experience injuries and damages due to the actions of the Defendants.
THE PEMBERTON FAMILY 15. Plaintiff Keith John Pemberton, age 67, is married to Plaintiff Jacqueline Pemberton age 66. 16. At all relevant times, the Pembertons owned and lived in a single family home located on Custer Street in Flint, Michigan. The Pembertons regularly used the water for drinking, cooking, washing, bathing and clothes washing at various times during the Class Period. 17. As a proximate result of Defendants’ actions, as set forth herein, the Pembertons have experienced and will continue to experience injuries and damages due to the actions of the Defendants.
THE CARTHAN FAMILY 18. Plaintiff Elnora Carthan is a 70 year old widow of African American descent. 19. Since 1976, and at all relevant times, Ms. Carthan owned and lived in a single family house located on McClellan Street in Flint, Michigan. Ms. Carthan regularly used the water for drinking, cooking, washing, bathing and clothes washing at various times during the Class Period.
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20. As a proximate result of Defendants’ actions, as set forth herein, Ms. Carthan has experienced and will continue to experience injuries and damages due to the actions of the Defendants.
THE KELSO FAMILY 21. Plaintiff Rhonda Kelso is a 52 year old woman of African American descent. 22. Since 1993, and at all relevant times, Ms. Kelso owned and lived in her single family home located on Grace Street in Flint, Michigan with her family. 23. Ms. Kelso lives at the aforementioned home with her minor daughter “K.E.K.” who is 12 years old. K.E.K. is a special needs student in school and suffers from a number of disabilities including, but not limited to, hearing impairment, cardiac problems, and developmental delays involving speech and language. Ms. Kelso and K.E.K. regularly used the water for drinking, cooking, washing, bathing and clothes washing at various times during the Class Period. 24. As a proximate result of Defendants’ actions, as set forth herein, Ms. Kelso and K.E.K. have experienced and will continue to experience injuries and damages due to the actions of the Defendants. B. DEFENDANTS 25. All individual Defendants are sued in their individual and/or official capacities as indicated below.
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26. Defendant Rick Snyder is the Governor of the State of Michigan (“Governor”) and is vested with executive power pursuant to Art. V, Section 1 of the Michigan Constitution. The Governor is responsible for the management of state government for the health and welfare of its citizens and residents and is sued by Plaintiffs and the Class in both his individual capacity for compensation for the Plaintiffs, insofar as his deliberate conduct constituted an abuse and/or misuse of his authority, and, in his official capacity, for prospective equitable relief to correct the harm caused and prolonged by state government and to prevent future injury. The Governor is sued in his individual capacity for the injuries he caused to Plaintiffs resulting from his deliberately indifferent deprivation of Plaintiffs’ constitutional and civil rights.
27. Defendant State of Michigan (“the State”) operates its Department of Environmental Quality (“MDEQ”), which is the state department primarily responsible for the environmental safety and health of Michigan citizens and residents. The State is sued for injunctive and/or prospective relief, because, acting through MDEQ and its employees, it caused the public health crisis at issue in this case, concealed the harm that it caused and has exacerbated and prolonged the injuries to Plaintiffs by failing to effectively remediate the harm it caused and concealed.
28. Daniel Wyant (“Wyant”) was Director of MDEQ and is sued by Plaintiffs in his individual capacity because he participated in the decisions that deliber-
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ately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm.
29. Andy Dillon (“Dillon) was Treasurer for the State of Michigan and is sued by Plaintiffs in his individual capacity because along with the Governor, Jeff Wright, Dayne Walling and Edward Kurtz, caused harm to Plaintiffs when they developed an interim water delivery plan in June 2013 which favored the predominately white Genesee County water users and discriminated against the water users in Flint, a predominantly African American community.
30. Nick Lyon (“Lyon”) was Director of the Michigan Department of Health and Human Services (“MDHSS”) and is sued by Plaintiffs in his individual capacity because he participated in the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
31. Liane Shekter Smith (“Smith”) was Chief of the Office of Drinking Water and Municipal Assistance for MDEQ, holding that position until October 19, 2015 when she was removed from her position. Smith is sued in her individual capacity because during her term as Chief of Drinking Water for MDEQ, she approved and participated in the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm her department caused Plaintiffs.
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32. Adam Rosenthal (“Rosenthal”) was a Water Quality Analyst assigned to the Lansing District Office of the MDEQ. Rosenthal is sued in his individual capacity because, as Water Quality Analyst for MDEQ, he approved and participated in, the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
33. Stephen Busch (“Busch”) was District Supervisor assigned to the Lansing District Office of the MDEQ. Busch is sued in his individual capacity because, as District Office Supervisor of MDEQ, he deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
34. Patrick Cook (“Cook”) was at all relevant times a Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the MDEQ. Cook is sued in his individual capacity because, as Water Treatment Specialist District of MDEQ, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
35. Michael Prysby (“Prysby”) was an Engineer assigned to District 11 (Genesee County) of the MDEQ. Prysby is sued in his individual capacity be-
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cause, as Engineer assigned to District 11, he approved of, and thereby participated in the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of harm his department caused Plaintiffs.
36. Bradley Wurfel (“Wurfel) was the Director of Communications for MDEQ. Wurfel is sued in his individual capacity because, as Director of Communications for MDEQ, he was responsible for the deliberately misleading and inaccurate communications that increased and prolonged the public health crisis at issue in this case and for making false statements and providing false assurances which caused harm to Plaintiffs.
37. Jeff Wright (“Wright”) has been the Genesee County Drain Commissioner since 2001. Wright is sued in his individual capacity because, as the Genesee Country Drain Commissioner, he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in and/or aided and abetted others to violate Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed under the ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Amendment of the United States Constitution.
38. Edward Kurtz (“Kurtz”) was the Emergency Manager of Flint appointed by the Governor in August 2012 and served in this capacity until July 2013. Kurtz is sued in his individual capacity because, during his term as Emer-
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gency Manager of Flint, he deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs. Kurtz is also sued because he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in or aided and/or abetted others to violate Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed under the ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Amendment of the United States Constitution.
39. Darnell Earley (“Earley”) was the Emergency Manager of the City of Flint appointed by the Governor on November 1, 2013 and served in this capacity until January 12, 2015. Earley is sued in his individual capacity because, during his term as Emergency Manager of Flint, he deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs. Earley is also sued because he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in and/or aided and abetted others to violate Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed under the ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Amendment of the United States Constitution.
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40. Gerald Ambrose (“Ambrose”) was the Emergency Manager of the City of Flint appointed by the Governor on January 13, 2015 and served in this capacity until April 28, 2015. Ambrose is sued in his individual capacity because, during his term as Emergency Manager of Flint, he deliberately increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs. Ambrose is also sued because he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in and/or aided and abetted others to violate Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed under the ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Amendment of the United States Constitution.
41. Dayne Walling (“Walling”) was Mayor of Flint from August 4, 2009 until November 9, 2015 when he was unseated by Karen Weaver. Walling is sued in both his individual and official capacities. He is individually liable insofar as he personally approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs. Walling is also sued because he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in and/or aided and abetted others to violate Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed
13

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under the ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Amendment of the United States Constitution. Additionally, as Mayor, he was a policymaker for Defendant City of Flint within the meaning of Monell, and as such his actions constituted customs, policies and/or practices of Defendant City of Flint.
42. Howard Croft (“Croft”) was Director of Public Works for the City of Flint. Croft is sued in his individual capacity because, as Director of Public Works, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs.
43. Michael Glasgow (“Glasgow”) was Utilities Administrator for the City of Flint. Glasgow is sued in his individual capacity because as Utilities Administrator, he deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs.
44. Daugherty Johnson (“Johnson”) was the Utilities Administrator for the City of Flint. Johnson is sued in his individual capacity because, as Utilities Administrator, he approved of, and thereby participated in the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm he caused Plaintiffs.
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45. The City of Flint (“Flint”) is a municipal corporation, so authorized by the laws of the State of Michigan that operates Department of Public Works and provides water to its residents and property owners as part of its responsibilities and services. Flint is a Defendant because, despite the protests of a number of elected and appointed officials within the organization, the municipal corporation itself, through its policies, customs and practices deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm it caused Plaintiffs. Flint is also sued because it deprived Plaintiffs of their civil and constitutional rights by violating Plaintiffs’ rights to full and equal enjoyment of public services as guaranteed under the ELCRA.
46. Defendants Kurtz, Earley and Ambrose as Emergency Managers, acted in both their individual capacities and as agents of the State of Michigan, and their official capacities as policy makers for Defendant City of Flint within the meaning of Monell, and as such their actions constituted customs, policies and/or practices of Defendant City of Flint.
47. At all relevant times hereto, the conduct of Defendants Walling, Croft, Glasgow and Johnson was pursuant to the customs, policies and/or practices of Defendant City of Flint.
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STATEMENT OF FACTS 48. From 1964 to 2014, Flint water users received their water from Lake Huron via the Detroit Water and Sewerage Department (“DWSD”). During this 50 year span, the Flint water users enjoyed safe, clean, fresh water in their homes, businesses, schools, hospitals and other places of public services. 49. Motivated principally by the actions, political pressure and efforts of Genesee County Drain Commissioner Jeffrey Wright, in 2009, the communities of Flint, Genesee County, Sanilac County, Lapeer County and City of Lapeer, formed the Karegnondi Water Authority (“KWA”) to explore the development of a water delivery system which would draw water from Lake Huron and serve as an alternative to water delivered by the DWSD. 50. In 2011, Flint officials commissioned a study to determine if the Flint River could be safely used by the city as the primary source of drinking water. The “Analysis of the Flint River as a Permanent Supply for the City of Flint, July 2011” (“2011 Report”), prepared by Rowe Engineering and Lockwood, Andrews and Newnam (“LAN”) cautioned against the use of the Flint River water and the dormant Flint Water Treatment Plant (“WTP”) which would cost millions of dollars to upgrade. 51. Use of the Flint River as a primary drinking source was rejected in 2011.
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52. In August 2012, the Governor appointed Edward Kurtz as Flint’s Emergency Manager.
53. Throughout 2012, DWSD presented to Kurtz, Wright, Dillon, Walling and the Governor compelling arguments, based on numerous studies, demonstrating that from a cost and water reliability standpoint, Flint needed to reject Wright’s pressure to join KWA and continue to receive water from DWSD.
54. Most, if not all, discourse about Flint joining KWA or continuing with DWSD, included Wright who consistently raised arguments designed to persuade Kurtz, Dillon and the Governor that the DWSD cost studies were wrong.
55. In late 2012, Dillon, reacting to Wright’s contention that the DWSD cost studies were wrong, requested the independent engineering firm of Tucker, Young, Jackson and Tull (“TYJT”) to assess whether it would be cost-effective for Flint to switch from water supplied by DWSD and join the KWA water delivery system.
56. In February 2013, TYJT concluded that it would be more costeffective for Flint on both a short term and long term basis to continue to be supplied with water from DWSD.
57. On March 27, 2013, MDEQ officials, sensing that Kurtz, Wright, Walling and Dillon were pushing the Governor to approve Flint joining the
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KWA, acknowledged that the decision to switch the water source for Flint was not based on a scientific assessment of the suitability of the Flint River water.1
58. On March 28, 2013, in an email from Dillon to Governor Rick
Snyder, with copies to numerous other Treasury officials and Wyant, Dillon
recommended that he authorize KWA going forward, even though the independ-
ent firm he hired to perform a cost evaluation said staying with DWSD made the most economic sense.2 Dennis Muchmore, Governor Snyder’s Chief of Staff,
confirmed in a subsequent email that it was Dillon who made “the ultimate deci-
sion” to switch Flint water from the DWSD to the KWA.
59. On April 16, 2013, Governor Snyder, in what is now understood to be
a non-fiscal decision, authorized Kurtz to enter into a contractual relationship with
KWA for the purpose of supplying water to Flint beginning in mid-year 2016.
1 The March 2016 Flint Water Advisory Task Force Final Report (“Task Force Report”) is attached as Exhibit A and the Task Force Timeline is attached as Exhibit B. Sygo/MDEQ e-mails with Busch re: Flint River water source switch. “As you might guess we are in a situation with Emergency Financial Managers so it’s entirely possible that they will be making decisions relative to cost.” Exhibit B, Task Force Timeline at 4. 2 Dillion stated in his March 28, 2013 email: “Governor, based upon today’s presentations to the DEQ by the City of Flint, KWA and the engineering firm (Tucker Young) Treasury hired to vet the options as to whether Flint should stay with DWSD or join KWA, I am recommending we support the City of Flint's decision to join KWA. The City's Emergency Manager, Mayor, and City Council all support this decision. Dan Wyant likewise concurs and will confirm via email.”
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60. Governor Snyder participated in discussions between his appointed Emergency Manager of Flint, Mr. Kurtz, and his appointed Emergency Manager of Detroit, Kevin Orr. At the time the Governor authorized his Emergency Manager to contractually bind Flint to the KWA project, the Governor and State officials knew that the Flint River would be used as an interim source.
61. In June 2013, Dillon, Kurtz, Wright, and Walling developed an interim plan (“Interim Plan”) to use the Flint River water before KWA became operational. The Interim Plan would cover 2.5 years (April 25, 2014 until approximately October, 2016).
62. Dillon, Kurtz, Wright and Walling knew that in 2011 the Flint River was professionally evaluated and rejected as a drinking source and that upgrades for the Flint WTP would cost millions.
63. When the Governor authorized the use of the Flint River as an interim source of water for Flint, he knew that in 2011 the use of the Flint River water as a primary drinking source had been professionally evaluated and rejected as dangerous and unsafe.
64. The Governor, in a timeline prepared by his office, confirmed that in June 2013, he knew that Flint River water would be used as an interim source of water.3
3 “City of Flint decides to use the Flint River as a water source, per Gov. 19

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65. In May 2013, Emergency Manager Kurtz announced his resignation
effective July 2013. The Governor reappointed Michael Brown as Flint’s Emer-
gency Manager.
66. In September 2013, after Emergency Manager Brown resigned, Dar-
nell Earley was appointed by the Governor as Flint’s Emergency Manager.
67. Michael Glasgow, the City of Flint’s water treatment plant’s la-
boratory and water quality supervisor informed the MDEQ on April 16, 2014,
that the WTP was not fit to begin operations and that “management” was not listening to him because “they seem to have their own agenda.”4
68. On April 25, 2014, under the direction of Emergency Manager Earley
and State officials from MDEQ, Flint water users began receiving Flint River wa-
ter from their taps even though Glasgow warned that the WTP was not ready.
Snyder timeline.” Exhibit A, Task Force Report at 5. 4 Glasgow said on April 16, 2014 that “ . . . . it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible . . . . I would like to make sure we are monitoring, reporting and meeting requirements before I give the OK to start distributing water.” The next day, Glasgow wrote Prysby and Busch of the MDEQ, that “….. I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the OK to begin sending water out anytime soon. If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.”
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69. Beginning in June 2013 and continuing through April 25, 2014, the State created a dangerous public health crisis for the users of Flint tap water when it and Kurtz and Earley ordered and set in motion the use of highly corrosive and toxic Flint River water knowing that the WTP was not ready.
70. For at least a year prior thereto, the State knew that using the Flint River water was dangerous and could cause serious public health issues.5
71. As early as May 2014, the State knew that it had indeed created a dangerous public health crisis yet failed to take any remedial steps.6
72. In June 2014, citizen complaints about contaminated water continued without the State doing anything to address these complaints. Many Flint water users reported that the water was making them ill.
73. On October 14, 2014, Flint’s public health emergency was a topic of significant discussion in the Governor’s office.7
5 “January 23, 2013: Mike Prysby/MDEQ e-mails colleague Liane Shekter Smith and others about feasibility of Flint switching to the Flint River, highlighting water quality concerns.” Exhibit A, Task Force Report at 16. 6 The Governor’s office received citizen complaints and was well aware of numerous press stories about water quality problems as early as May 2014 and continuing throughout 2015.” Id. at 36. 7 “Valerie Brader, State Deputy Legal Counsel and Senior Policy Advisor, e-mails [on October 14th the] Governor’s Chief of Staff Dennis Muchmore and other top aides arguing for a return to DWSD because of water quality problems. Michael Gadola, then the Governor’s Legal Counsel, responds by agreeing with Brader. Brader and Rich Baird, another senior aide to the Governor, then discuss the idea
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74. By October 2014, the Governor and his staff knew full well of the
on-going public health threat to the people of Flint yet he did absolutely noth-
ing to assist the desperate people of Flint.8
75. By October 2014, the threat of deadly Legionnaires disease was
adding to the public health safety crisis.9 (“[October 2014] Genesee County
Health Department initially expresses concern to Flint Water re: increased in-
cidence of Legionellosis and possible connection to water supply.” Exhibit B,
Task Force Timeline at 7.
76. On October 13, 2014, the General Motors Corporation announced
that it would no longer use Flint River water in its Flint plant. Despite this
with Emergency Manager Darnell Earley, who maintains the water quality problems can be solved and it would be cost-prohibitive to return to DWSD.” Id. at 17-18.
8 The Task Force Report was critical of the Governor’s failure to answer the Flint citizen calls for help in October of 2014. “The suggestion made by members of the Governor’s executive staff in October 2014 to switch back to DWSD should have resulted, at a minimum, in a full and comprehensive review of the water situation in Flint, similar to that which accompanied the earlier decision to switch to KWA. It was disregarded, however, because of cost considerations and repeated assurances that the water was safe. The need to switch back to DWSD became even more apparent as water quality and safety issued continued and lead issues began to surface in 2015, notwithstanding reassurances by MDEQ.” Id. at 38.
9 “[October 2014] Genesee County Health Department initially expresses concern to Flint Water re: increased incidence of Legionellosis and possible connection to water supply.” Exhibit B, Task Force Timeline at 7.
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clear evidence of serious and significant danger, none of the Defendants took
any action to alter the course of the health crisis.10
77. On October 17, 2014, Flint officials became aware of the threat of
Legionnaires disease resulting from the use of Flint River water. No action
was taken by Flint or Genesee County Health officials.11
78. On October 21, 2014, the MDHHS was notified of the health cri-
sis caused by the Flint River water. Again no action was taken.12
79. In January 2015, State officials met to discuss the ongoing threat to
public health posed by the Legionella bacteria in the Flint River water.13 The pub-
lic health crisis was not addressed in any serious and/or non-frivolous way.
10 “GM announces it is switching from City of Flint water system to Flint Township (Lake Huron) water for its Flint Engine Operations facility until KWA connection is complete, citing corrosion concerns. Prysby/MDEQ notes Flint water chloride levels are “easily within” public health guidelines. Annual revenue loss of $400,000. Id. at 7.
11 “Genesee Co. Health Department (GCHD) representatives hold conference call with Glasgow and Wright/Flint DPW re: county’s concerns about Legionellosis outbreak and possible connection to city's water system. DPW “acknowledges that the distribution system has areas of concern.” Id. at 7.
12 “Susan Bohm/MDHHS e-mails GCHD officials re: Shekter Smith's concern that Flint water would be publicly linked to Legionellosis outbreak in Flint.’ I told her the Flint water was at this point just a hypothesis.’” Id. at 7.
13“January 2015 (date unclear): Staff from Genesee County hospitals, MDHHS, MDEQ and GCHD meet, and MDHHS Director Nick Lyon directs GCHD to conduct and complete its evaluation of the causes of the increased Legionellosis cases that had begun to occur in 2014.” Id. at 18.
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80. On January 13, 2015, Earley resigned his position as Emergency Manager and the Governor replaced him with Gerald Ambrose.
81. On January 21, 2105, State officials ordered water coolers to be installed in State buildings operating in Flint. State officials were concerned that this action, if it became widely known by the public, would reveal their dishonesty because they had been advising the residents of Flint that it was safe to drink the tap water and at the same time arranging for alternative water sources for the State employees who were working in Flint.14
82. On January 27, 2015, Flint was placed on notice that the Genesee County Health Department (“GCHD”) believed there was an association between the spike in Legionella disease reports and the onset of the use of Flint River water. Again, Defendants did nothing about the impending health catastrophe.15
83. On January 29, 2015, State officials recognized that the public health crisis was caused by the corrosion of the entire infrastructure of the
14 “MDEQ staff (Prysby, Shekter Smith, Benzie, numerous others) communicate via e-mail re: decision to provide water coolers at Flint’s State Office building. Some discussion re: how this decision will affect Flint residents’ perceptions of drinking water safety, and how the decision will "make it more difficult . . . for ODWMA staff.” Id. at 8. 15 “FOIA request sent by GCHD environmental hygienist James Henry to Flint DPW and Flint Mayor for information on water treatment to support the county’s investigation of Legionellosis cases.” Exhibit A, Task Force Report at 18.
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Flint water system. No action was taken to warn the public of the health crisis or to correct the harm caused by the State’s decision to switch from DWSD water to Flint River water.16
84. On January 29, 2015, Sue McCormick, the Director of DWSD, offered Ambrose an opportunity to purchase DWSD water at attractive rates. DSWD’s proposal included waiving the re-connection fee. This offer was rejected by Ambrose.
85. In January 2015, Flint home owner, LeeAnn Walters, called the EPA regarding water issues that she was experiencing at her Flint home. She informed the EPA that she and her family members were becoming physically ill from exposure to the Flint River water coming from her tap.
86. By the end of January 2015, the Governor’s office was fully aware of the public health emergency caused by the rise in Legionella bacteria found in the Flint River and launched a cover-up of the public health crisis.17
16 “Sygo and Shekter Smith/MDEQ e‐mail re: Flint water quality problems. Shekter Smith identifies the problem as corrosion across the distribution system rather than a ‘premise plumbing’ issue.” Exhibit B, Task Force Timeline at 8. 17 “January 30, 2015: Brad Wurfel/MDEQ e-mails Dave Murray, Governor Snyder’s deputy press secretary, re: Legionella, saying said he didn’t want MDEQ Director Wyant “to say publicly that the water in Flint is safe until we get the results of some county health department trace back work on 42 cases of Legionellosis in Genesee County since last May.” Exhibit A, Task Force Report at 18.
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87. On February 1, 2015, the Governor was fully informed of the health crisis in Flint. Given the months of complaints from Flint water users that the water was discolored, foul smelling/tasting and making them visibly sick, the Governor knew that there was an imminent threat to the people of Flint.18
88. Yet, neither the Governor, nor State and local public officials, took corrective action.
89. On February 17, 2015, Flint water users staged public demonstrations demanding that Flint re-connect with DWSD. Once again Ambrose refused to restore Detroit water for Flint water users. State and local public officials falsely insisted that the water was acceptable for use and took no action.
90. On February 26, 2015, Jennifer Crooks of the EPA wrote an email to MDEQ and EPA representatives. Crooks noted that Walters complained of “black sediment in her water.” She noted that the iron contamination was so high that the testing instrumentation could not measure it.19
18 “Briefing memo is prepared for Gov. Snyder on Flint water situation, including info on residents' complaints about water quality, Mayor Walling’s call for assistance, and MDEQ ‘backgrounder’ downplaying health risks.” Wurfel: “It's not like an imminent threat to public health.” Exhibit B, Task Force Timeline at 9. 19 Crooks said in her email: “But, because the iron levels were so high [Michael Glasgow, Flint Utilities Administrator], suggested testing for lead and copper.
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91. In a second email on February 26, 2015, Crooks stated that Miguel
Del Toral (“Del Toral”) of the EPA is of the opinion that the “black sediment” in
the Walters water was actually lead.20
92. On February 27, 2015, Stephen Busch advised Del Toral that the City
was using corrosion control. This statement was false and Busch knew it was false
when he made this statement to the EPA.21
93. On March 5, 2015, the Governor and officials in the Governor’s
office realized that they had a massive public health emergency which proba-
bly included widespread lead poisoning on their hands and began discussing
distributing water filters to Flint water users. These public officials took no
action to warn or otherwise protect Plaintiffs and the Class, and continued to
WOW!!!! Did he find the LEAD! 104 ppb. She has 2 children under the age of 3….Big worries here….I think Lead is a good indication that other contaminants are also present in the tap water that obviously were not present in the compliance samples taken at the plant…We also talked about Dr. Joan Rose from Michigan State being on the Flint Tech Advisory committee--would want to dive further into this…she and her family are also exhibiting the rashes when exposed to the water, and her daughter’s hair is falling out in clumps.”
20 Crooks stated that “Miguel is wondering if Flint is feeding Phosphates. Flint must have Optimal Corrosion Control Treatment-is it phosphates? From a public health perspective, can we assume that the high lead levels in Mrs. Walters’ neighborhood are isolated to just her area? Or are they more widespread?”
21 “Busch/MDEQ responds to Del Toral/EPA saying that the City of Flint ‘Has an Optimized Corrosion Control Program,’ LeeAnn Walters's house is ‘not part of the City's established sample site pool’ and the residence has PVC plumbing.” Exhibit B, Task Force Timeline at 10.
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conceal from them and the public the true nature, extent and severity of the
public health crisis.22
94. By March 10, 2015, James Henry of the GCHD raised concerns
that he was being stonewalled by the State and City in accessing public health
information about the Legionella outbreak in Genesee County. The conceal-
ment of the public health emergency by City and State officials – Defendants
herein – was shocking and unconscionable.
95. As of March 10, 2015, the Defendants knew that the extreme pub-
lic health emergency involved lead poisoning, deadly Legionella bacteria and
a host of other ailments.23
22 “Officials in Governor's Office and MDEQ begin discussing providing water filters to Flint citizens.” Id.
23 “James Henry/GCHD e-mails Howard Croft/Flint DPW, Prysby/MDEQ, Mayor Walling and others citing the city’s and state's lack of cooperation and failure to respond to his requests for information -‐-‐ and a Jan. 2015 FOIA -‐-‐ to support county's investigation of potential causes of Legionellosis outbreak in Flint. ‘This is rather glaring information and it needs to be looked into now, prior to the warmer summer months when Legionella is at its peak and we are potentially faced with a crisis.’” Exhibit B, Task Force Timeline at 9. The Task Force Report highlights the government misconduct which prolonged the danger created by the State when it decided to use the highly corrosive Flint River water. The Task Force stated in its report that “[a]s the Flint water crisis unfolded, certain state agencies’ perceived need to defend the original decision to switch to the Flint River and resist a return to DWSD resulted in public relations and communications efforts that have, at times, been inappropriate. In the spring and summer of 2015, for example, this perceived need to defend a flawed decision manifested itself in attempts by MDEQ and MDHHS to discredit accurate information on lead in drinking water and elevated blood lead levels provided by
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96. On March 25, 2015, Flint City Council voted to re-connect to De-
troit’s water system. Governor Snyder’s appointed Emergency Manager, Gerald
Ambrose, exacerbated the State-created danger by rejecting this vote of the Flint
public officials.24
97. On June 24, 2015, Del Toral of the EPA prepared a memorandum en-
titled, “High Lead Levels in Flint Michigan-Interim Report” (“Del Toral Re-
port”). On the following day, Del Toral wrote an internal email with respect to
the elevated lead in Flint water at EPA stating:
“I understand that this is not a comfortable situation, but the State is complicit in this and the public has a right to know what they are doing because it is their children that are being harmed.”
outside experts. Citizen concerns were at times derided and dismissed, in spite of the fact that various members of the Governor’s staff had expressed—and were expressing—concerns about the water situation in Flint at the same time.”……In any event, the facts in this case point to the reality that state government, as the entity in charge of Flint decision-making, failed to protect the health of the city’s residents. Emphasis added. Exhibit A, Task Force Report at 37, 40.
24 The Task Force further notes that in March, 2015, Emergency Manager Ambrose completely ignored numerous alarms and warnings that the Flint River water was dangerous to the health of the Flint water users. “Flint City Council votes 7-‐1 to end Flint River service and return to Detroit water service; the vote is non-‐binding since Flint is under EM control. Flint EM Ambrose: ‘It is incomprehensible to me that... Flint City Council would want to send more than $12 million a year to the system serving Southeast Michigan, even if Flint rate payers could afford it. (Lake Huron) water from Detroit is no safer than water from Flint.’” Exhibit B, Task Force Timeline at 10.
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Del Toral further warned that the failure to inform Flint water users of the elevated lead levels was “bordering on criminal neglect.”
98. The Del Toral Report was shared with, among others, MDEQ’s Chief of Office of Drinking Water and Municipal Assistance, Liane Shekter-Smith, MDEQ’s Water Treatment Specialist, Patrick Cook, MDEQ’s District Supervisor, Stephen Busch, and MDEQ’s Engineer assigned to District 11 (Genesee County), and Michael Prysby.
99. Nonetheless, State and local public officials failed to undertake any measures to effectively address any of the dangers, including lead poisoning, identified by EPA Agent Del Toral.
100. On June 30, 2015, Mayor Walling notified EPA Region 5 Director, Dr. Susan Hedman (“Hedman”) that Del Toral was speaking publicly about the Flint environmental crisis.
101. On July 2, 2015, Hedman advised Walling that he was given a preliminary draft and that it would be premature to draw any conclusions based on that draft.”
102. On July 10, 2015, MDEQ official Brad Wurfel, in an effort to conceal the public health crisis, appeared on public radio and advised listeners that Flint water was safe and that it was not causing “any broad problem” with lead leaching into residential water. Parents, worried about the lead poisoning of their
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children demanded answers from Wurfel. He told the concerned parents, “[l]et me start here-anyone who is concerned about lead in the drinking water can relax.” Wurfel, at the time he made this statement, knew his statements were false and he deliberately misled the public about the seriousness of the crisis.
103. By July 2015, multiple agencies within the State of Michigan, including the Governor, the Governor’s Office and MDEQ, had actual notice of high lead exposure and other dangers, including Legionnaires’ disease, associated with Flint water.
104. On July 22, 2015, Governor Snyder’s Chief of Staff, Dennis Muchmore, wrote to MDHHS Director Lyon and stated that the Plaintiffs’ concerns (and those of the Class and the people of Flint) regarding lead poisoning and other dangers were being “blown off” by the Defendants.
105. On July 24, 2015, Wurfel continued to promote the cover-up of the health crisis. In response to the recognition that the Defendants were blatantly ignoring the concerns of Flint residents, he stated, “In terms of near-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, and DEQ’s recent sampling does not indicate an imminent health threat from lead or copper.”
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106. In August 2015, Professor Marc Edwards of Virginia Tech determined that there was serious lead contamination of the Flint water system and stated that the people of Flint face a major public health emergency.
107. Wurfel, speaking for the State, immediately dismissed and discredited Edwards by stating that Edwards’s team “only just arrived in town and (have) quickly proven the theory they set out to prove, and while the state appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames irresponsibly.”
108. By late 2014 or early 2015, Lyon was aware from MDHHS data that there was a dramatic increase in the percentage of Flint children with elevated blood lead level readings from blood drawn during the second and third quarters of 2014, and that Legionnaires’ disease was on the rise during the same period of time. Lyon was aware of this dangerous condition but did nothing to report the findings to the Plaintiffs, their Class or the public.
109. Lyon knew that these elevated blood lead levels, and an increase of Legionnaires’ disease found in its own database, correlated with the introduction of the corrosive Flint River water into the Flint water distribution system. Lyon did not order that any action be taken to warn the public.
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110. The increase in elevated blood lead levels in Flint’s children, and
Lyon’s failure to do anything to prevent further injury to the people of Flint, iden-
tifies yet another aspect of this unconscionable government-created health and
public safety emergency. Lyon, aware of the elevated blood lead levels in Flint’s
children, failed to report the evidence to the MDEQ, Governor’s Office, EPA or
the Flint community. His concealment of this critical information increased the
risk and exacerbated the danger.25
111. Dr. Mona Hanna-Attisha, in the summer of 2015, using data available
to her from Hurley Hospital, observed a similar spike in the percentage of Flint
children with elevated blood lead levels from blood drawn in the second and third
quarter of 2014. She published her study in an effort to alert the community about
the health risks associated with drinking Flint River water.
25 The Task Force Report states that in July, 2015, the MDHHS knew that there was a spike in elevated blood lead levels of Flint children which correlated with the onset of the Flint River water as a drinking water source for Flint water users. The MDEQ knew its public statement in September about no elevated blood lead levels was false. (“July 28, 2015: MDHHS epidemiologist Cristin Larder finds that children’s blood lead tests conducted in summer 2014 “lie outside the control limit” compared with prior years and that this finding “does warrant further investigation.” On the same day, CLPPP data manager Robert Scott analyzes the data over a 5-year period and concludes that “water was not a major factor.” Later that day, CLPPP manager Nancy Peeler concludes that the lack of persistently elevated blood lead levels in children in Flint beyond the summer months indicates no connection to the change in water in Flint in 2014. Larder then receives email communication from Peeler: Peeler has concluded from CLPPP data and communicated with MDHHS leadership that there is no problem with children's lead levels in Flint.” Exhibit A, Task Force Report at 20.
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112. The Defendants and the MDHHS immediately accused Dr. Hanna-
Attisha of providing false information to the public.
113. In September 2015, the MDEQ continued to falsely assure the pub-
lic that use of Flint Water was safe and continued to deny the public health crisis at hand.26
114. On September 25, 2015, Wurfel falsely advised media and the public
that MDHHS officials have re-examined its blood lead level data and the MDHHS
statistics do not show the same upward trend documented by Dr. Hanna-Attisha.
115. On September 28, 2015, Wurfel stated publically that the Flint water
crisis was becoming “near-hysteria” because of Dr. Hanna-Attisha’s report. He
said that he wouldn’t call her reports “…irresponsible. I would call them unfortu-
nate.” Wurfel finished his remarks that day by falsely stating that “Flint’s drink-
ing water is safe in that it’s meeting state and federal standards.”
26 An example of this type of misleading public statement is found in a MDEQ document entitled, “DEQ Frequently Asked Questions, Water Lead Levels in the City of Flint, September, 2015” which stated: “Are there other ways the city monitors for lead exposure? The County Health Departments, overseen statewide by the Michigan Department of Health and Human Services, regularly monitors blood levels in children throughout Michigan communities. The leading cause of lead poisoning is exposure to lead paint. Blood lead level testing results for the 12-month period just after the City of Flint changed its water source (May 2014 – April 2015) showed no significant change in the pattern of blood lead levels in Flint, compared to the previous three years. This data suggests the recent change in water source by the City of Flint has not contributed to an increase in lead exposure throughout the community.” (Emphasis added)
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116. On September 29, 2015, Wurfel referred to EPA Del Toral as a “rogue employee.”
117. By late September 2015, reconnecting to the Detroit water system was the only reasonable option to protect the health and safety of the Flint water users. Yet the State deliberately chose not to proceed in this fashion. Instead, on or about October 2, 2015, State officials announced that the State would appoint a Flint Water Advisory Task Force and would provide water filters designed to eliminate the lead in the water to Flint water users.
118. On October 8, 2015, the Governor recognized that he could no longer pretend that the water from the Flint River was safe. He finally ordered Flint to reconnect with the Detroit water system which contained corrosion control chemicals.
119. The re-connect to DWSD took place on or about October 16, 2015. 120. Flint is currently in a State of Emergency: Mayor Karen Weaver declared a State of Emergency on December 14, 2015. On January 4, 2016, the Genesee County Commissioners declared a State of Emergency. On January 5, 2016, Governor Snyder declared a State of Emergency. On January 13, 2016, the Governor activated the Michigan National Guard to assist the people of Flint. On January 14, 2016, the Governor asked President Barak Obama and the Department of Homeland Security, Federal Emergency Management Agency (“FEMA”) to de-
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clare Flint a Major Disaster. On January 16, 2016, FEMA issued an emergency declaration to assist the people of Flint.
121. The relief efforts of State public officials have been ineffective, indeed often frivolous, in mitigating the devastation caused by its creation of the public health crisis. The ineffective relief efforts have prolonged the dangerous conditions and, in many cases, the failed mitigation efforts have further exacerbated the effects of the public health calamity created by the State.
CLASS ALLEGATIONS 122. Plaintiffs request certification pursuant to Fed. R. Civ. P 23(b)(3) on behalf of a proposed damages class defined as follows: all individuals and entities who from April 25, 2014 to present were exposed to toxic Flint water or who owned property within the City of Flint and experienced injuries and damages to their person or property. 123. Plaintiffs request certification pursuant to Fed. R. Civ. P 23(b)(2) on behalf of a proposed injunctive relief class defined as follows: all individuals and entities who from April 25, 2014 to present were exposed to toxic Flint water or who owned property within the City of Flint and experienced injuries and damages to their person or property.
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124. The number of class members is sufficiently numerous to make class action status the most practical method for Plaintiffs to secure redress for injuries sustained and to obtain class wide equitable injunctive relief.
125. There are questions of law and fact raised by the named Plaintiffs' claims common to those raised by the Class(es) they seek to represent. Such common questions predominate over question affecting only individual members of the Class(es).
126. The violations of law and resulting harms alleged by the named Plaintiffs are typical of the legal violations and harms suffered by all Class members.
127. Plaintiff Class representatives will fairly and adequately protect the interests of the Plaintiff Class members. Plaintiffs’ counsel are unaware of any conflicts of interest between the Class representatives and absent Class members with respect to the matters at issue in this litigation; the Class representatives will vigorously prosecute the suit on behalf of the Class; and the Class representatives are represented by experienced counsel. Plaintiffs are represented by attorneys with substantial experience and expertise in complex and class action litigation involving personal and property damage.
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128. Plaintiffs’ attorneys have identified and thoroughly investigated all claims in this action, and have committed sufficient resources to represent the Class.
129. The maintenance of the action as a class action will be superior to other available methods of adjudication and will promote the convenient administration of justice. Moreover, the prosecution of separate actions by individual members of the Class could result in inconsistent or varying adjudications with respect to individual members of the Class and/or one or more of the Defendants.
130. Defendants have acted or failed to act on grounds generally applicable to all Plaintiffs, necessitating declaratory and injunctive relief for the Class.
COUNT I-CAUSE OF ACTION 42 U.S.C. § 1983 – 14th AMENDMENT SUBSTANTIVE DUE PROCESS – STATE CREATED
DANGER ALL DEFENDANTS 131. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 130, as if fully set forth herein. 132. Plaintiffs have a clearly established right under the substantive due process clause of the Fourteenth Amendment to the United States Constitution to be protected from risks, dangers, dangerous situations, or being made more vulnerable to increased risk of harms, affirmatively created and/or caused by persons acting under color of state law.
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133. Defendants, while acting under color of state law, affirmatively created or exacerbated the dangers and dangerous situations to which Plaintiffs were exposed, making them more vulnerable to said dangers, and these Defendants did so with an extreme degree of culpability.
134. Defendants, while acting under color of state law, affirmatively continued, increased and perpetuated the dangers, risks of harm and dangerous situations creating the public health crisis, when they deliberately and affirmatively denied, lied about, covered up, deceived, discredited and ignored said known dangers and risks of harm to which they exposed Plaintiffs making them more vulnerable to said dangers.
135. Defendants were aware that their conduct could result in the deprivation of Plaintiffs’ due process rights to be protected from the dangers, dangerous situations, or being made more vulnerable to the dangers affirmatively created and perpetuated by them.
136. This conduct was reckless, deliberately indifferent and/or so outrageous as to shock the conscience, such that it was culpable in the extreme, insofar as these Defendants knew of and disregarded the substantial risk of serious harm to Plaintiffs.
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137. The dangers and risks of harm were discreet and special to Plaintiffs, as Flint water users and property owners in particular, and not risks affecting the public at large.
138. The dangers and risks of harm to Plaintiffs from the ongoing exposure to the water toxins which were created and perpetuated by Defendants, were so extreme as to be equivalent to private acts of violence visited upon them.
139. These actions of Defendants constituted affirmative acts that caused and/or substantially increased the risks of physical, emotional and economic harm to the Plaintiffs.
140. As a direct and proximate result of the unconstitutional acts of Defendants as alleged in this First Amended Complaint, Plaintiffs suffered violations of their fundamental rights to bodily integrity, property and liberty interests, including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms. 141. Plaintiffs have further suffered property damage to their homes and/or places of business in the form of lost property values and lost business profits.
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The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages, as well as costs and reasonable attorney fees, pursuant to 42 U.S.C. §1988.
COUNT II-CAUSE OF ACTION 42 U.S.C. § 1983 – 14th AMENDMENT SUBSTANTIVE DUE PROCESS – BODILY INTEGRITY
ALL DEFENDANTS 142. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 141, as if fully set forth herein. 143. Plaintiffs have a clearly established fundamental right under the substantive due process clause of the Fourteenth Amendment to the United States Constitution to bodily integrity. 144. The conduct of Defendants, all while acting under color of law, endangered and/or threatened Plaintiffs’ fundamental liberty interest to bodily integrity as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. 145. Defendants were aware that their conduct could result in the deprivation of Plaintiffs’ fundamental due process rights to bodily integrity 146. Defendants deliberately and knowingly breached the constitutionally protected bodily integrity of Plaintiffs by creating and perpetuating the ongoing exposure to contaminated water, with deliberate indifference to the known risks of harm which said exposure would, and did, cause to Plaintiffs.
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147. Defendants had the opportunity to reflect and deliberate before they
acted and/or failed to act.
148. As a direct and proximate result of the unconstitutional acts of De-
fendants as alleged in this First Amended Complaint, Plaintiffs have suffered vio-
lations of their fundamental rights to bodily integrity, property and liberty inter-
ests, including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms. 149. The conduct of Defendants was both reckless and outrageous, enti-
tling Plaintiffs to an award of punitive damages, as well as costs and reasonable
attorney fees, pursuant to 42 U.S.C. §1988, as well as costs and reasonable attor-
ney fees, pursuant to 42 U.S.C. §1988.
COUNT III-CAUSE OF ACTION 42 U.S.C. § 1983 – 5th AND 14th AMENDMENTS EQUAL PROTECTION OF THE LAW: RACE-BASED PLAINTIFFS V SNYDER, DILLON, WRIGHT, WALLING,
AMBROSE, KURTZ AND EARLEY
150. Plaintiffs and Plaintiff Class incorporate by reference the allegations
set forth in Paragraphs 1 through 149, as if fully set forth herein. 42

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151. Defendants Snyder, Dillon, Wright, Walling, Ambrose, Kurtz and Earley, acting under color of law, and in their respective individual and/or official capacities, engaged in conduct and/or adopted laws and policies that violated Plaintiffs’ rights under the Fifth and Fourteenth Amendments to the United States Constitution
152. Amendment Fourteen, § 1 states in pertinent part, “No state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”
153. The Equal Protection Clause protects laws and the application of laws that invidiously discriminate between similarly situated individuals or between groups of persons in the exercise of fundamental rights.
154. Defendants’ conduct deliberately exposed Plaintiffs to contaminated Flint River water, knowing that it could and would result in widespread serious damage.
155. In 2013, Defendants were required to develop an Interim Plan to deliver water to Genesee County and Flint while the KWA water system was being built. This Interim Plan would be in effect for more than 2.5 years (April 25, 2014 until approximately October 2016 when the KWA water system would become operational.)
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156. These Defendants knew that the water from the Flint River was grossly inferior to the Lake Huron water Flint and Genesee County citizens had been receiving from DWSD.
157. These Defendants knew that the raw water from the Flint River would have to be processed at the Flint WTP which would have required millions of dollars of upgrades.
158. These Defendants knew that using the raw water from the Flint River had been rejected as recently as 2011.
159. Recognizing these facts, Defendants devised an Interim Plan that caused the predominately white water users of those areas of Genesee County outside of Flint to receive the safe and superior water from DWSD, whereas the water users of predominantly African American Flint received water that was known to be grossly inferior and unsafe, i.e. Flint River water.
160. As evidence of the fact that race discrimination was the reason for treating the two groups of water users differently, the cost of continuing with the finished water product from the DWSD for all water users (both Genesee County and Flint) would have been substantially less than the cost of upgrading the Flint WTP in order to safely process the raw Flint River water.
161. Given the clear difference in the treatment between these two groups of similarly situated water users, the deliberate and intentional decisions and ac-
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tions of these Defendants in devising the Interim Plan was the product of racial discrimination in violation of the Equal Protection Clause.
162. If Plaintiffs’ community had been predominately white, Plaintiffs would have been treated in the same manner as their predominantly white neighbors in Genesee County and they too would have received DWSD water as part of the Interim Plan.
163. Because Plaintiffs and their Class were water users in a predominately African American community, their complaints were dismissed and disrespected as exaggerated, without merit or inconsequential. If Plaintiffs’ community had been predominately white, citizen complaints would have been taken seriously, treated as valid and the MDEQ and Flint public officials would have taken timely action to address the concerns.27
164. As a direct and proximate result of the unconstitutional acts of Defendants as alleged in this First Amended Complaint, Plaintiffs have suffered violations of their fundamental constitutional rights including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
27 “Citizen concerns were at times derided and dismissed, in spite of the fact that various members of the Governor’s staff had expressed-and were expressingconcerns about the water situation in Flint at the same time.” Exhibit A, Task Force Report at 37.
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b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms. 165. The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages, as well as costs and reasonable attorney fees, pursuant to 42 U.S.C. §1988.
COUNT IV-CAUSE OF ACTION 42 U.S.C. § 1983 – 5th AND 14th AMENDMENTS EQUAL PROTECTION OF THE LAW: WEALTH-BASED PLAINTIFFS V SNYDER, DILLON, WRIGHT, WALLING,
AMBROSE, KURTZ AND EARLEY
166. Plaintiffs and Plaintiff Class incorporate by reference the allegations set forth in Paragraphs 1 through 165, as if fully set forth herein.
167. Defendants Snyder, Dillon, Wright, Walling, Ambrose, Kurtz and Earley, acting under color of law, and in their respective individual and/or official capacities, engaged in conduct and/or adopted laws and policies that violated Plaintiffs’ rights under the Fifth and Fourteenth Amendments to the United States Constitution.
168. Amendment Fourteen, § 1 states in pertinent part, “No state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”
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169. The Equal Protection Clause protects laws and the application of laws that invidiously discriminate between similarly situated individuals or between groups of persons in the exercise of fundamental rights.
170. Defendants’ conduct deliberately exposed Plaintiffs to contaminated Flint River water, knowing that it could and would result in widespread serious damage.
171. In 2013, Defendants were required to develop an Interim Plan to deliver water to Genesee County and Flint while the KWA water system was being built. This Interim Plan would be in effect for more than 2.5 years (April 25, 2014 until approximately October 2016 when the KWA water system would become operational.)
172. These Defendants knew that the water from the Flint River was grossly inferior to the water Flint and Genesee County citizens had been receiving from DWSD.
173. These Defendants knew that the raw water from the Flint River would have to be processed at the Flint WTP which required millions of dollars of upgrades.
174. These Defendants knew that using the raw water from the Flint River had been rejected as recently as 2011.
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175. Recognizing these facts, Defendants’ devised an Interim Plan that allowed the predominately more affluent water users of Genesee County to receive the safe superior water from DWSD and the predominately impoverished water users of Flint would have to accept during the interim period grossly inferior, previously rejected and dangerous Flint River water.
176. There was no rational economic or fiscal justification for treating the predominately more affluent water users of Genesee County differently than the predominately impoverished water users of Flint because the cost of continuing with the finished water product from the DWSD for all water users (both Genesee County and Flint) would have been substantially less the cost of upgrading the Flint WTP in order to safely process the raw Flint River water.
177. Given the unexplained difference in treatment between these two groups of similarly situated water users, considering the absence of any rational economic justification, and taking into account the economic and class makeup of the group which received the grossly inferior and dangerous water product, the deliberate decisions and actions of these Defendants in devising the Interim Plan can fairly be said to be the product of income and class discrimination, in violation of the Equal Protection Clause of the 14th Amendment.
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178. If Plaintiffs’ community had been predominately more affluent, Plaintiffs would have been treated just like their more affluent neighbors in Genesee County, and they too would have received DWSD water as part of the Interim Plan.
179. Because Plaintiffs were in a predominately impoverished community, their complaints were dismissed as exaggerated, without merit or inconsequential. If Plaintiffs’ community had been predominately more affluent, citizen complaints would have been treated as valid and the MDEQ and Flint public officials would have taken timely action to address the concerns.
180. As a direct and proximate result of the unconstitutional acts of Defendants as alleged in this First Amended Complaint, Plaintiffs have suffered violations of their fundamental constitutional rights including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms. 181. The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages, as well as costs and reasonable attorney fees, pursuant to 42 U.S.C. §1988.
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COUNT V-CAUSE OF ACTION 42 U.S.C. § 1985(3) INVIDIOUS RACIAL ANIMUS PLAINTIFFS V SNYDER, DILLON, WRIGHT, WALLING, AMBROSE,
KURTZ AND EARLEY 182. Plaintiffs and Plaintiff Class incorporate by reference the allegations set forth in Paragraphs 1 through 181, as if fully set forth herein. 183. Defendants Snyder, Dillon, Wright, Walling, Ambrose, Kurtz and Earley, acting under color of law, and in their respective individual and/or official capacities, engaged in conduct and/or adopted laws and policies that violated Plaintiffs’ rights under the Thirteenth Amendments to the United States Constitution. 184. 42 U.S.C § 1985 (3) secures the rights of the Plaintiffs and their Class to be free from conspiracies, founded on invidious racial animus, to violate the constitutional rights of Plaintiffs to equal protection and due process. 185. The Equal Protection Clause protects laws and the application of laws that invidiously discriminate between similarly situated individuals or between groups of persons in the exercise of fundamental rights. 186. Defendants’ conduct deliberately exposed Plaintiffs to contaminated Flint River water, knowing that it could and would result in widespread serious damage. 187. In 2013, Defendants were required to develop an Interim Plan to deliver water to Genesee County and Flint while the KWA water system was being
50

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built. This Interim Plan would be in effect for more than 2.5 years (April 25, 2014 until approximately October 2016 when the KWA water system would become operational.)
188. These Defendants knew that the water from the Flint River was grossly inferior to the water Flint and Genesee County citizens had been receiving from DWSD.
189. These Defendants knew that the raw water from the Flint River would have to be processed at the Flint WTP which required millions of dollars of upgrades.
190. These Defendants knew that using the raw water from the Flint River had been rejected as recently as 2011.
191. Recognizing these facts, Defendants’ conspired to devise an Interim Plan that allowed the predominately white water users of Genesee County to receive the safe superior water from DWSD and the predominately black water users of Flint would have to accept during the interim period grossly inferior, previously rejected and potentially unsafe Flint River water.
192. There was no rational economic or fiscal justification for treating the predominately white water users of those parts of Genesee County outside if Flint differently than the water users in the predominately African American community of Flint because the cost of continuing with the finished water product from the
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DWSD for all water users (both Genesee County and Flint) would have been substantially less the cost of upgrading the Flint WTP in order to safely process the raw Flint River water.
193. Given the unexplained difference in treatment between these two groups of similarly situated water users, considering the absence of any rational economic or fiscal justification and taking into account the racial makeup of the community that received the grossly inferior and dangerous water product, the deliberate decisions and actions of these conspiring Defendants in devising the Interim Plan can fairly be said to be the product of invidious racial animus in violation of the Thirteenth Amendment. The provision of unhealthy and dangerous food and water is a badge, vestige and symbol of slavery abolished and prohibited by the Thirteenth Amendment.
194. If Plaintiffs’ community had been predominately white, Plaintiffs would have been treated the same as their white neighbors in Genesee County, and they too would have received DWSD water as part of the Interim Plan.
195. Because Plaintiffs were water users in a predominately African American community, their complaints were disrespected and dismissed as exaggerated, without merit or inconsequential. If Plaintiffs’ community had been predominately white, citizen complaints would have been treated as valid and the MDEQ and Flint public officials would have taken timely action to address the concerns. This disre-
52

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spect and dismissive response arose directly from the conspiracy between these Defendants founded on invidious racial animus.
196. As a direct and proximate result of the conspiracy and the unconstitutional acts of Defendants as alleged in this First Amended Complaint, have suffered violations of their fundamental constitutional rights including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms. 197. The conduct of Defendants was reckless and outrageous, entitling Plaintiffs and Plaintiff Class members to an award of punitive damages, as well as costs and reasonable attorney fees, pursuant to 42 U.S.C. §1988.
COUNT VI-CAUSE OF ACTION MCL 37. 2302-VIOLATION OF PUBLIC SERVICE PROVISONS
OF ELCRA PLAINTIFFS V SNYDER, DILLON, WRIGHT, WALLING, AMBROSE, KURTZ AND EARLEY, FLINT
198. Plaintiffs incorporate by reference the allegations set forth in Paragraphs 1 through 197 as if fully set forth herein.
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199. Flint and Emergency Managers Kurtz, Walling, Ambrose and Earley represent a public facility, agency, board owned and operated by a political subdivision of the state established to provide public service to the public. MCL 37.2301(b).
200. If not “provider[s]” of a public service, Wright, Walling, Ambrose, Kurtz, Earley are liable under MCL 37.2701 because they aided or abetted the “provider” to violate MCL 37.2302(a).
201. Snyder and Dillon are liable under MCL 37.2701 because they aided the “provider” of water services to Plaintiffs in the acts which denied Plaintiffs of the full and equal enjoyment of water services because of race.
202. These Defendants were under a statutory duty to either provide water services to Plaintiffs so that they would not be denied the full and equal enjoyment of public water service on account of race, or they aided and abetted the public service provider to deny Plaintiffs full and equal enjoyment of public water service.
203. In 2013, Defendants were required to develop an Interim Plan to deliver water to Genesee County and Flint while the KWA water system was being built. This Interim Plan would be in effect for more than 2.5 years (April 25, 2014 until approximately October 2016 when the KWA water system would become operational).
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204. These Defendants knew that the water from the Flint River was grossly inferior to the water Flint and Genesee County citizens had been receiving from DWSD.
205. These Defendants knew that the water from the Flint River would have to be processed at the Flint WTP which required millions of dollars of upgrades.
206. These Defendants knew that using the raw water from the Flint River had been rejected as recently as 2011.
207. Recognizing these facts, Defendants devised an Interim Plan that allowed the predominately white water users of Genesee County to receive the safe superior water from DWSD and the predominately black water users of Flint would have to accept during the interim period grossly inferior, previously rejected and potentially unsafe Flint River water.
208. There was no rational economic justification for treating the predominately white water users from those areas of Genesee County outside of Flint differently than the users of water from Flint, a predominately African American community. This is so because the cost of continuing with the finished water product from the DWSD for all water users (both Genesee County and Flint) would have been substantially less than the cost of upgrading the Flint WTP in order to safely process the raw Flint River water.
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209. Given the unexplained difference in treatment between these two groups of similarly situated water users, considering the absence of any rational economic or fiscal justification, and taking into account the racial makeup of the community that received the grossly inferior and dangerous water product, the deliberate decisions and actions of these conspiring Defendants in devising the Interim Plan can fairly be said to be the product of racial discrimination in violation of MCL 37.2302(a).
210. If Plaintiffs’ community had been predominately white, Plaintiffs would have been treated just like their neighbors from the predominantly white neighbors in Genesee County, and they too would have received DWSD water as part of the Interim Plan.
211. As a direct and proximate result of the violation of the ELCRA as alleged in this First Amended Complaint, Plaintiffs have experienced damages including, but not limited to:
a. Serious and in some cases life threatening and irreversible bodily injury;
b. Substantial economic losses from medical expenses, lost wages, lost income, lost business profits, reduced property values, among others;
c. Pain and suffering; d. Embarrassment, outrage, mental anguish, fear and mortifica-
tion, and stress related physical symptoms.
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PRAYER FOR RELIEF Plaintiffs request the following relief from the court:
a. An order certifying a damages class pursuant to Fed. R. Civ. P 23(b)(3) and an injunctive relief class pursuant to Fed. R. Civ. P. 23(b)(2);
b. An order declaring the conduct of Defendants unconstitutional;
c. An injunctive order to remediate the harm caused by Defendants’ unconstitutional conduct including, but not limited to: repairs of private property and establishment of medical monitoring to provide health care and other appropriate services to Class members for a period of time deemed appropriate by the Court;
d. Appointment of a monitor who will assist in the development of remedial plans including, but not limited to: early education, education intervention programs, criminal and juvenile justice evaluations;
e. An order for an award of compensatory damages; f. An order for an award of punitive damages; g. An order for an award of actual reasonable attorney fees and liti-
gation expenses; and h. An order for all such other relief the court deems equitable.
DEMAND FOR TRIAL BY JURY Plaintiffs demand a trial by jury as to all those issues triable as of right.
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William Goodman P14173 Julie H. Hurwitz P34720 GOODMAN & HURWITZ, PC 1394 E. Jefferson Ave. Detroit, MI 48207 Telephone: (313) 567-6170 bgoodman@goodmanhurwitz.com jhurwitz@goodmanhurwitz.com
Trachelle C. Young P63330 TRACHELLE C. YOUNG & ASSOCIATES PLLC 2501 N. Saginaw St. Flint, MI 48505 Telephone: (810) 239-6302 trachelleyoung@gmail.com
Robin L. Greenwald William Walsh WEITZ & LUXENBERG P.C. 700 Broadway New York, New York 10003 Telephone: (212) 558-5500 rgreenwald@weitzlux.com wwalsh@weitzlux.com
John M. Broaddus WEITZ & LUXENBERG P.C. 200 Lake Drive east, Suite 205 Cherry Hill, New Jersey 08002 Telephone: (856) 755-1115 jbroaddus@weitzlux.com

Respectfully submitted,
/s/ Michael L. Pitt Michael L. Pitt P24429 Cary S. McGehee P42318 Beth M. Rivers P36614 PITT MCGEHEE PALMER & RIVERS, PC 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 Telephone: (248) 398-9800 mpitt@pittlawpc.com cmcghee@pittlawpc.com brivers@pittlawpc.com
Paul F. Novak P39524 Gregory Stamatopolous P74199 John Hughes P76455 MILBERG LLP Chrysler House 719 Griswold Street, Suite 620 Detroit, Michigan 48826 Telephone: (313) 309-1760 pnovak@milberg.com gstamatopolous@milberg.com jhughes@milberg.com
Deborah Labelle P31595 LAW OFFICES OF DEBORAH LABELLE 221 N. Main Street, Suite 300 Ann Arbor, Michigan 48104 Telephone: (734) 996-5620 deblabelle@aol.com

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5:15-cv-14002-JCO-MKM Doc # 111 Filed 05/25/16 Pg 64 of 64 Pg ID 1702

Dated: May 25, 2016

Brian McKeen P34123 Salvatore Amodeo P80290 McKEEN & ASSOCIATES, PC 645 Griswold Street, Suite 4200 Detroit, Michigan 48226 Telephone: (313) 961-4400 BjMcKeen@mckeenassociates.com Samodeo@mckeenassociates.com

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument was filed with the U.S. District Court through the ECF filing system and that all parties to the above cause was served via the ECF filing system on May 25, 2016.
Signature: _/s/ Regina Bell_____ 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 rbell@pittlawpc.com

59

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA MAYS, et al.,

Plaintiffs, v. GOVERNOR RICK SNYDER, et al.,

Case No. 15-14002 Hon. John Corbett O’Meara

Defendants. _________________________________/

OPINION AND ORDER Before the court are six motions to dismiss Plaintiffs’ amended complaint filed by Defendants, which have been fully briefed. For the reasons explained below, Defendants’ motions to dismiss are granted.
BACKGROUND FACTS This case arises out of the contamination of drinking water in Flint, Michigan. Plaintiffs intend to represent a class of Flint residents and others who used Flint water from April 25, 2014, to the present. Defendants are Michigan Governor Rick Snyder, the State of Michigan, Daniel Wyant, Nick Lyon, Andy Dillon, Liane Shekter Smith, Adam Rosenthal, Stephen Busch, Patrick Cook, Michael Prysby, Bradley Wurfel, Jeff Wright, Edward Kurtz, Darnell Earley,

Gerald Ambrose, Dayne Walling, Howard Croft, Michael Glasgow, Daugherty Johnson, and the City of Flint.
Plaintiffs’ amended complaint alleges the following causes of action: Count I, substantive due process/state created danger, 42 U.S.C. § 1983; Count II, substantive due process/bodily integrity, § 1983; Count III, equal protection based upon race, § 1983; Count IV, equal protection based upon wealth, § 1983; Count V, conspiracy, § 1985; and Count VI, violation of the public service provisions of the Elliott-Larsen Civil Rights Act. Plaintiffs allege that “Defendants caused a public health crisis by exposing Plaintiffs to contaminated water.” Amended Compl. at ¶ 1. Defendants have moved to dismiss Plaintiffs’ complaint on various grounds, pursuant to Fed. R. Civ. P. 12(b)(1) and (6).
LAW AND ANALYSIS I. Preclusion of § 1983 Claims
In Boler v. Earley, No. 16-10323, Docket No. 56 (E.D. Mich., O’Meara, J.), another case involving Flint water contamination, the court concluded that the plaintiffs’ constitutional claims brought pursuant to § 1983 were precluded by the Safe Drinking Water Act (“SDWA”). Defendants urge the same result here, contending that if Plaintiffs’ § 1983 claims are not viable, Plaintiffs lack a federal cause of action and this court should dismiss Plaintiffs’ complaint.
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In determining whether a statute precludes suit under § 1983, “[t]he crucial consideration is what Congress intended.” Smith v. Robinson, 468 U.S. 992, 1012 (1984). “When the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex Cty. Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 20 (1981). In Sea Clammers, the Court found that the Federal Water Pollution Control Act (FWPCA) and the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA), contained comprehensive enforcement mechanisms. The Court held that these enforcement schemes demonstrated Congress’s intent “to supplant any remedy that otherwise would be available under § 1983.” Id. at 21.
Relying on Sea Clammers, the First Circuit in Matoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992), found that the Safe Drinking Water Act precluded other federal remedies for unsafe public drinking water. In Matoon, the plaintiffs were residents who allegedly contracted giardiasis from drinking contaminated water supplied by the City of Pittsfield, Massachusetts. They alleged a breach of warranty claim, a “public nuisance” claim under federal common law, a claim under 42 U.S.C. § 1983, and a SDWA claim.
The Matoon court found the federal common law nuisance claim to be
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preempted by the SDWA, because “Congress occupied the field of public drinking water regulation with its enactment of the SDWA.” Matoon, 980 F.2d at 4. Quoting the legislative history, the court noted that the purpose of the SDWA “is to assure that water supply systems serving the public meet minimum national standards for protection of public health.” Id. (citations omitted). With minor exceptions, the SDWA applies “to each public water system in each State.” Id. at 4 (quoting 42 U.S.C. §300g). The SDWA enables the Administrator of the Environmental Protection Agency to “publish maximum contaminant level goals and promulgate national primary drinking water regulations.” Id. (quoting 42 U.S.C. §300g-1(b)(1). After reviewing, the regulatory scheme, the First Circuit concluded that “the SDWA evinces a clear congressional intent to entrust the regulation of the public drinking water systems to an expert regulatory agency rather than the courts.” Matoon, 980 F.2d at 4-5. The court determined that, as a result, the federal common law nuisance claim was preempted by the SDWA.
The Matoon court further determined that the plaintiffs’ § 1983 claims were precluded by the SDWA as well. The court noted the “elaborate enforcement scheme” set forth in the SDWA, including that the EPA Administrator may bring a civil action to compel SDWA compliance and may issue compliance orders against violators of SDWA regulations. Id. at 5-6 (citing 42 U.S.C. § 300g-3(b) and §
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300g-3(b)(1)). In addition, citizens may initiate enforcement proceedings against SDWA violators and against the EPA Administrator for failure to perform any non-discretionary duty under the SDWA. See id.; 42 U.S.C. § 300j-8.
As the court explained, because “the SDWA enforcement scheme is closely analogous to other enforcement schemes found sufficiently comprehensive to evince a clear congressional intent to preempt relief under section 1983, we hold that appellants’ section 1983 claims are preempted by the SDWA.” Matoon, 980 F.2d at 6. “Comprehensive federal statutory schemes, such as the SDWA, preclude rights of action under section 1983 for alleged deprivations of constitutional rights in the field occupied by the federal statutory scheme.” Id. See also Sea Clammers, 453 U.S. at 21 (FWPCA and MPRSA supplant remedies under § 1983); City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005) (remedial scheme in Telecommunications Act precludes § 1983 action); Smith v. Robinson, 468 U.S. 992 (1984) (Education of Handicapped Act provides exclusive remedy even when plaintiffs assert constitutional claims); Zombro v. Baltimore City Police Dept., 868 F.2d 1364 (4th Cir.), cert. denied, 493 U.S. 850 (1989) (ADEA, not § 1983, is exclusive remedy for age discrimination claims under federal law).
The essence of Plaintiffs’ constitutional claims is that Plaintiffs were injured as a result of exposure to contaminated water. See Amended Compl. at ¶¶ 122,
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138, 146, 154, 170, 186. Plaintiffs’ allegations are addressed by regulations that have been promulgated by the EPA under the SDWA. See, e.g., 40 C.F.R. § 141.11 (regulating maximum contaminant levels); 40 C.F.R. § 141.31 et seq. (reporting and record keeping); 40 C.F.R. § 141.60 et seq. (maximum contaminant and residual disinfectant levels); 40 C.F.R. § 141.80 et seq. (control of lead and copper/corrosion control/lead service line replacement requirements); 40 C.F.R. § 141.110 (regulating treatment techniques). Indeed, the safety of public water systems is a field occupied by the SDWA. Matoon, 980 F.2d at 4. Accordingly, consistent with its decision in Boler, the court concludes that Plaintiffs’ federal remedy is under the SDWA, regardless of how their legal theories are characterized in the complaint.
Plaintiffs argue that their § 1983 claims are not precluded, relying on Charvat v. Eastern Ohio Regional Wastewater Authority, 246 F.3d 607 (6th Cir. 2001) and Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009). Charvat and Fitzgerald are distinguishable, however. In Fitzgerald, the Supreme Court determined that Title IX did not preclude an equal protection claim alleging unconstitutional gender discrimination in schools. The Court found that, unlike the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes, Title IX did not provide a carefully tailored private enforcement mechanism. The Court noted
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that Title IX’s remedies (withdrawal of federal funds and an implied cause of action) “stand in stark contract to the ‘unusually elaborate,’ ‘carefully tailored,’ and ‘restrictive’ enforcement schemes of the statutes at issue in Sea Clammers, Smith, and Rancho Palos Verdes.” Fitzgerald, 555 U.S. at 255. Like those statutes, and unlike Title IX, the SDWA “establishes an elaborate enforcement scheme” with respect to safe drinking water. Allowing parallel § 1983 claims to proceed would “circumvent” the SDWA’s procedures and would be “inconsistent with Congress’ carefully tailored scheme.” Id. at 254-55 (citation omitted).
In Charvat, the Sixth Circuit concluded that the SDWA’s whistleblower provisions did not preclude the plaintiff from bringing suit under § 1983 for a First Amendment violation. The whistleblower provisions of the SDWA, however, do not contain the same “elaborate enforcement scheme” as the substantive provisions of the statute. Rather, the whistleblower provisions provide for an administrative remedy, which “is not necessarily sufficient to demonstrate Congress intended to foreclose a § 1983 remedy.” Charvat, 246 F.3d at 614-15 (citation omitted).
The court is mindful that it is not to “lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim.” Smith, 468 U.S. at 1012. The elaborate enforcement scheme of the SDWA, however, leads it to conclude that § 1983 claims seeking to remedy unsafe
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drinking water would be “inconsistent with Congress’ carefully tailored scheme.” Id. See also Hildebrand v. Allegheny Cty., 757 F.3d 99, (3d Cir. 2014) (“The Supreme Court has consistently indicated that the comprehensiveness of a statute’s remedial scheme is the primary factor in determining congressional intent.”).
Without viable constitutional claims, Plaintiffs’ conspiracy claim under § 1985(3) based upon the same conduct also fails. See Beztak Land Co. v. City of Detroit, 298 F.3d 559, 568-69 (6th Cir. 2002). The court will dismiss Plaintiffs’ claims under §§ 1983 and 1985. II. ELCRA Claim
The court will decline to exercise supplemental jurisdiction over Plaintiffs’ remaining claim, which arises under Michigan’s Elliott-Larsen Civil Rights Act. Generally, “if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.” Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
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ORDER Accordingly, IT IS HEREBY ORDERED that Defendants’ motions to dismiss are GRANTED and Plaintiffs’ complaint is DISMISSED.

Date: February 2, 2017

s/John Corbett O’Meara United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of record on this date, February 2, 2017, using the ECF system.

s/William Barkholz Case Manager

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 Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f1iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a2g9e: 1Page 1 of 39(1 of 39)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: July 28, 2017
Mr. Samuel R. Bagenstos 625 S. State Street Ann Arbor, MI 48109-0000
Mr. Charles Edward Barbieri Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Mr. Frederick A. Berg Jr. Butzel Long, 150 W. Jefferson Avenue, Suite 100 Detroit, MI 48226
Mr. Jay M. Berger Clark Hill 500 Woodward Avenue, Suite 3500 Detroit, MI 48226
Ms. Margaret Bettenhausen Office of the Attorney General of Michigan 525 W. Ottawa Street Lansing, MI 48909
Ms. Nikkiya Branch 615 Griswold Street, Suite 400 Detroit, MI 48226
Ms. Dimple Chaudhary Natural Resources Defense Council 1350 New York Avenue, N.W., Suite 300 Washington, DC 20005
Mr. Christopher Bradley Clare Clark Hill 1001 Pennsylvania Avenue, N.W., Suite 1300, S. Washington, DC 27713

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Ms. Allison Marie Collins Foster, Swift, Collins & Smith 313 S. Washington Square Lansing, MI 48933
Mr. Jason Gregory Downs Murphy & Falcon, 1 South Street, Suite 2300 Baltimore, MD 21202
Mr. Eugene Driker Barris, Sott, Denn & Driker 333 W. Fort Street, Suite 1200 Detroit, MI 48226
Mr. Dennis K. Egan Kotz Sangster Wysocki 400 Renaissance Center, Suite 3400 Detroit, MI 48243
Mr. Joseph F. Galvin Genesee County Drain Commission G-4610 Beecher Road Flint, MI 48532
Mr. Nathan A. Gambill Mr. Richard S. Kuhl Office of the Attorney General of Michigan P.O. Box 30755 Lansing, MI 48909
Mr. Michael J. Gildner Simen, Figura & Parker 5206 Gateway Center, Suite 200 Flint, MI 48507-0000
Ms. Diana Gjonaj Weitz & Luxenberg 719 Griswold, Suite 620 Detroit, MI 48226
Mr. William H. Goodman Goodman & Hurwitz 1394 E. Jefferson Avenue Detroit, MI 48207

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Mr. Philip A. Grashoff Jr. Kotz Sangster 36700 Woodward Avenue, Suite 300 Bloomfield Hills, MI 48304
Ms. Julie H. Hurwitz Goodman & Hurwitz 1394 E. Jefferson Ave. Detroit, MI 48207
Ms. Krista Aimee Jackson Kotz Sangster Wysocki 40 Pearl Street, N.W., Ste 400 Grand Rapids, MI 49503
Mr. William Young Kim City of Flint, 1101 S. Saginaw Street Third Floor, Room 307 Flint, MI 48502
Ms. Bonsitu Asia Kitaba American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West Building Bloomfield Hills, MI 48304
Ms. Deborah A. LaBelle 221 N. Main Street, Suite 300 Ann Arbor, MI 48104-0000
Ms. Cary S. McGehee Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067
Ms. Jessica Hamman Meeder Murphy & Falcon , 1 South Street, Suite 2300 Baltimore, MD 21202

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Mr. Gregory M. Meihn Foley & Mansfield 130 E. Nine Mile Road Ferndale, MI 48220
Mr. Todd Rhys Mendel Barris, Sott, Denn & Driker 333 W. Fort Street, Suite 1200 Detroit, MI 48226
Mr. Brett T. Meyer O'Neill, Wallace & Doyle P.O. Box 1966 Saginaw, MI 48605
Mr. Thaddeus E. Morgan Fraser Trebilcock 124 W. Allegan Street Suite 1000 Lansing, MI 48933
Mr. William H. Murphy Jr. Murphy & Falcon 1 South Street, Suite 2300 Baltimore, MD 21202
Mr. Paul Francis Novak Weitz & Luxenberg 719 Griswold, Suite 620 Detroit, MI 48226
Mr. Michael John Pattwell Clark Hill 212 E. Grand River Avenue Lansing, MI 48906
Mr. Todd Russell Perkins 615 Griswold Street, Suite 400 Detroit, MI 48226
Mr. Michael L Pitt Ms. Beth M. Rivers Pitt, McGehee, Palmer & Rivers 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067

Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f1iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a3g3e: 5Page 5 of 39(5 of 39)
Mr. Joseph E. Richotte Butzel Long, 41000 Woodward Avenue Stoneridge West Building Bloomfield Hills, MI 48304
Mr. Alexander Stephen Rusek White Law 2549 Jolly Road, Suite 340 Okemos, MI 48864
Mr. Gregory Stamatopoulos Weitz & Luxenberg 719 Griswold, Suite 620 Detroit, MI 48226
Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Mr. Nicholas Adam Szokoly Murphy & Falcon 1 South Street. Suite 2300 Baltimore, MD 21202
Ms. Sarah C. Tallman Natural Resources Defense Council 20 N. Wacker Drive, Suite 1600 Chicago, IL 60606
Mr. Morley Witus Barris, Sott, Denn & Driker 333 W. Fort Street, Suite 1200 Detroit, MI 48226-3281
Mr. Barry A. Wolf 503 S. Saginaw Street, Suite 1410 Flint, MI 48502
Mr. Edwar Ayoub Zeineh 2800 E. Grand River Avenue, Suite B Lansing, MI 48912
Re: Case Nos. 16-1684/17-1144, Boler, et al v. Earley, et al Originating Case No. : 5:16-cv-10323

Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f1iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a3g4e: 6Page 6 of 39(6 of 39)

Dear Counsel, The court today announced its decision in the above-styled case. Enclosed is a copy of the court's opinion together with the judgment which has been entered
in conformity with Rule 36, Federal Rules of Appellate Procedure. Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f2iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a3g5e: 1Page 7 of 39(7 of 39)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

16-1684

┐

BEATRICE BOLER; EDWIN ANDERSON; ALLINA │

ANDERSON; EPCO SALES, LLC,

│

Plaintiffs-Appellants, │

│

v.

│ >

DARNELL EARLEY; GERALD AMBROSE; DAYNE │

WALLING; CITY OF FLINT; STATE OF MICHIGAN; │

MICHIGAN DEPARTMENT OF ENVIRONMENTAL │

QUALITY; MICHIGAN DEPARTMENT OF HEALTH AND │

HUMAN SERVICES; RICHARD DALE SNYDER,

│

Defendants-Appellees. │

│

17-1144

│

MELISSA MAYS; MICHAEL MAYS; JACQUELINE │

PEMBERTON; KEITH JOHN PEMBERTON; ELNORA │

CARTHAN; RHONDA KELSO,

│

Plaintiffs-Appellants, │

v.

│ │

RICK SNYDER; STATE OF MICHIGAN; DANIEL WYANT; │

LIANE SHEKTER SMITH; ADAM ROSENTHAL; STEPHEN │

BUSCH; PATRICK COOK; MICHAEL PRYSBY; BRADLEY │

WURFEL; DARNELL EARLEY; GERALD AMBROSE; │

DAYNE WALLING; HOWARD CROFT; MICHAEL │

GLASGOW; DAUGHERTY JOHNSON; CITY OF FLINT; │

NICK LYON; ANDY DILLON; EDWARD KURTZ; JEFF │

WRIGHT,

│

Defendants-Appellees. │

┘

Nos. 16-1684/17-1144

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor. Nos. 5:16-cv-10323; 5:15-cv-14002—John Corbett O’Meara, District Judge.
Argued: June 15, 2017
Decided and Filed: July 28, 2017

Before: COLE, Chief Judge; STRANCH and DONALD, Circuit Judges.

Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f2iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a3g6e: 2Page 8 of 39(8 of 39)

Nos. 16-1684/17-1144

Boler, et al. v. Earley, et al.

Page 2

_________________
COUNSEL
ARGUED: 16-1684: Nicholas A. Szokoly, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. Margaret Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for State Appellees. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, for Flint Appellees. ON BRIEF: 16-1684: Nicholas A. Szokoly, Jason G. Downs, Jessica H. Meeder, MURPHY, FALCON & MURPHY, Baltimore, Maryland, for Appellants. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, for Flint Appellees. Margaret Bettenhausen, Richard S. Kuhl, Nathan A Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Eugene Driker, Morley Witus, Todd R. Mendel, BARRIS, SOTT, DENN & DRIKER, PLLC, Detroit, Michigan, for State Appellees. Samuel R. Bagenstos, Ann Arbor, Michigan, for Amicus Curiae. 17-1144: Samuel R. Bagenstos, Ann Arbor, Michigan, Michael L. Pitt, Cary S. McGehee, Beth M. Rivers, PITT MCGEHEE PALMER & RIVERS, PC, Royal Oak, Michigan, Paul F. Novak, Gregory Stamatopolous, Diana Gjonaj, WEITZ & LUXENBERG, PC, Detroit, Michigan, William H. Goodman, Julie H. Hurwitz, GOODMAN & HURWITZ, PC, Detroit, Michigan, Deborah A. LaBelle, LAW OFFICE OF DEBORAH A. LABELLE, Ann Arbor, Michigan, for Appellants. Margaret A. Bettenhausen, Richard S. Kuhl, Nathan A. Gambill, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees State of Michigan, Snyder, Lyon, and Dillon. William Y. Kim, CITY OF FLINT, Flint, Michigan, Frederick A. Berg, Jr., Sheldon H. Klein, BUTZEL LONG, P.C., Detroit, Michigan, Todd R. Perkins, Nikkiya Branch, THE PERKINS LAW GROUP PLLC, Detroit, Michigan, Alexander S. Rusek, WHITE LAW PLLC, Okemos, Michigan, EDWARD A. ZEINEH, DAVID W. MEYERS, LAW OFFICE OF EDWARD A. ZEINEH, Lansing, Michigan, Barry A. Wolf, LAW OFFICE OF BARRY A. WOLF PLLC, Flint, Michigan, BRETT T. MEYER, O’NEILL, WALLACE & DOYLE, P.C., Saginaw, Michigan, for Flint Appellees. Michael J. Pattwell, Jay M. Berger, Christopher B. Clare, CLARK HILL PLC, Detroit, Michigan, Thaddeus E. Morgan, FRASER TREBILCOCK, Lansing, Michigan, Charles E. Barbieri, Allison M. Collins, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, Phillip A. Grashoff, Jr., Dennis K. Egan, Krista A. Jackson, KOTZ SANGSTER WYSOCKI, Bloomfield Hills, Michigan, for Appellees Busch, Cook, Prysby, Rosenthal, Smith, Wurfel, and Wyant. Gregory M. Meihn, FOLEY & MANSFIELD, P.L.L.P., Ferndale, Michigan, Joseph F. Galvin, GENESEE COUNTY DRAIN COMMISSION, Flint, Michigan, for Appellee Wright. Sarah C. Tallman, NATURAL RESOURCES DEFENSE COUNCIL, Chicago, Illinois, Dimple Chaudhary, NATURAL RESOURCES DEFENSE COUNCIL, Washington, D.C., Michael J. Steinberg, Bonsitu A. Kitaba, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, for Amicus Curiae.

Case 5:15-cv-1C40a0s2e-:J1E6L--1M68K4M EDCoFcuNmoe.n2t0: 166-f2iled F0i7le/2d8: /0177/28P/2a0g1e7ID.6P9a3g7e: 3Page 9 of 39(9 of 39)

Nos. 16-1684/17-1144

Boler, et al. v. Earley, et al.

Page 3

_________________
OPINION _________________
JANE B. STRANCH, Circuit Judge. These two cases arise from the water contamination crisis in Flint, Michigan. Plaintiffs, residents of Flint affected by the contaminated city water, bring suit against various state and local officials and entities, alleging violation of their constitutional rights, pursuant to 42 U.S.C. § 1983, along with other claims. In Boler, the district court determined that the § 1983 claims were preempted by the Safe Drinking Water Act (SDWA) and dismissed the case for lack of subject matter jurisdiction. Relying on its preemption analysis in Boler, the court dismissed the Mays case. The cases have been consolidated on appeal. For the reasons explained below, we REVERSE the judgment of the district court and REMAND for further proceedings.
I. BACKGROUND
A. Factual Background
In March 2011, the Michigan state Legislature passed the Local Government and School District Fiscal Accountability Act (“Act 4”), which authorized the governor to appoint an emergency manager for certain local governments. Act 4 replaced an earlier Michigan law, the Local Government Fiscal Responsibility Act (“Act 72”), which had been in effect since 1990. Act 72 gave the State power to appoint an emergency financial manager to municipalities facing financial crises. Act 4 expanded the scope of the powers granted to these emergency financial managers and changed their title to simply “emergency managers.” New emergency managers were subsequently appointed in several areas; in August 2012, Governor Rick Snyder appointed Edward Kurtz in Flint.
On November 5, 2012, Michigan voters rejected Act 4 by referendum. This revived Act 72. See Mich. Op. Att’y Gen. No. 7267, 2012 WL 3544658, at *6 (Aug. 6, 2012). In December, the Michigan Legislature responded by enacting the Local Financial Stability and Choice Act (“Act 436”), effective March 28, 2013. Under Michigan law, a public act with an appropriations provision is not subject to referendum. See In re City of Detroit, 504 B.R. 191, 252 (Bankr. E.D.

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Mich. 2013) (citing Mich. United Conservation Clubs v. Sec’y of State, 464 Mich. 359, 367 (2001)). Unlike Act 4, Act 436 added appropriations provisions that prevented voters from subjecting it to a referendum. Id. at 251. Act 436, like Act 4, authorized the State to appoint emergency managers with authority to exercise the power of local governments. See Phillips v. Snyder, 836 F.3d 707, 711 (6th Cir. 2016).
Following the passage of Act 436, Kurtz resumed his status as named Emergency Manager for the City of Flint, and remained in that post until July 2013. In November 2013, Governor Snyder appointed Darnell Earley as Emergency Manager for the City of Flint. In January 2015, Earley was replaced by Gerald Ambrose.
Between 1967 and 2014, the City of Flint sourced its water from Lake Huron via the Detroit Water and Sewerage Department (DWSD). On March 29, 2013, one day after Act 436 went into effect, the City of Flint decided to join a water supplier, the Karegnondi Water Authority (KWA), that was to be established. Sourcing water for Flint had been under review. In 2011, Flint had commissioned a study (“2011 Report” or “Report”) to evaluate the cost of treating water from the Flint River for municipal use as an alternative to either purchasing from the future KWA or continuing its existing contract with DWSD. The Report determined that water from the Flint River would need to be treated to meet current water safety regulations. It also concluded that the cost of treating water from the Flint River to provide safe municipal use would be greater than the proposed KWA contract, but less than continuing the contract with DWSD. The officials thus decided to go with the cheapest long-term option—the KWA.
Shortly after the decision to switch to the KWA was made, DWSD notified Flint that its current contract would terminate in approximately one year, in April 2014. Because the KWA would take several years to construct, officials were tasked with choosing an interim water source: the Flint River or DWSD. Officials chose the Flint River. Genesee County, which includes Flint but is, according to the Defendants, “[j]urisdictionally separate and distinct from the City of Flint,” had also decided to switch its future water supply to the KWA. Unlike the City of Flint, Genesee County officials opted to continue to purchase DWSD water during the KWA’s construction. The Defendants state that this was because Genesee County, unlike Flint, does not have its own water treatment plant.

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In April 2014, Flint’s emergency manager changed the source of the city’s water from DWSD to the Flint River. The plaintiffs assert that at this time, the City knew “that the Flint River could not be a source of safe municipal water unless it underwent significant treatment, including the addition of anti-corrosive agents and treatment for microbial contaminants,” as explained by the 2011 Report. The Report itself states that its comparison to other alternatives “assumed that the Flint [water treatment plant] w[ould] treat water from the river to provide a finished water of similar quality to other alternatives being considered.” There is no evidence that the City upgraded the treatment plants or provided for additional safety measures prior to switching water supply sources on April 25, 2014. The Defendants contend that they operated in accordance with the SDWA’s Lead and Copper Rule, which requires a two-step process that begins with “initial monitoring” over two separate six-month periods to determine if treatment is required. The first six-month period did not begin until June 2014.
Following the switch to the Flint River, residents immediately began to complain that the drinking water “smelled rotten, looked foul, and tasted terrible.” Larger problems with the water supply soon became apparent. Testing conducted in August and September 2014 detected coliform and E. coli bacteria in the water supply. In October 2014, the water was linked to Legionnaire’s disease. General Motors discontinued its water service because the Flint River water was corroding its parts.
In January 2015, the City issued a notice that the drinking water violated standards, but that it was safe to drink. In February 2015, further water testing indicated high levels of contaminants such as lead and total trihalomethane. The Defendants state that the City conducted its two required rounds of sampling to determine lead levels, from July to December 2014 and January to June 2015, but the results did not exceed the SDWA Lead and Copper Rule’s “action level.” The results did indicate that corrosion control treatment measures were needed to counteract lead levels, which “had risen since switching to the Flint River.” In March 2015, the Flint City Council voted to reconnect with DWSD rather than continuing to use the Flint River water supply, but the City government’s vote was overruled by the Emergency Manager.

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Over the next few months, the City issued instructions to residents on their use of water, including advising them to “pre-flush” taps prior to use or to stop drinking the water altogether. In June 2015, the EPA warned of high lead levels in the water. In response, officials provided consumers with water filters, which the Plaintiffs state did not substantially improve the water quality and were incapable of filtering out known contaminants.
In October 2015, Genesee County declared a public health emergency in Flint, advising residents not to drink the water. That same month, the Emergency Manager ordered that Flint reconnect to DWSD. By that point, however, the protective coating in the water supply pipes had been damaged by water from the Flint River, and until the coating could “buil[d] up to appropriate levels,” the water would continue to have elevated lead levels. The EPA issued an advisory to Flint residents in February 2016, warning them that unfiltered water was not safe and advising the use of bottled water, especially for young children and pregnant women. Many of these advisories are currently still in place, and Flint remains in a state of emergency.
Flint residents have been billed continuously for their water services since April 2014. The City of Flint has engaged in collection efforts when payments have not been made, including disconnecting water service altogether and issuing liens against real property. The Defendants state that Michigan is providing funds for the reimbursement of water bills, as well as making other efforts to ameliorate the effects of the water crisis.
On January 25, 2016, the Michigan Civil Rights Commission passed a resolution to hold a series of hearings to determine the impact of the Flint water contamination crisis on the civil rights of Michigan’s citizens. The Commission, appointed by the Governor, held three hearings that included “expert testimony focusing on the history of Flint’s economy and housing, environmental justice, and the application of the . . . emergency manager law.” Michigan Civil Rights Commission, The Flint Water Crisis: Systemic Racism Through the Lens of Flint iii (Feb. 17, 2017). The Commission’s 130-page report determined that the response to the Flint water crisis was “the result of systemic racism,” Id. at 2., and that its finding was “based on a plethora of events and policies that so racialized the structure of public policy that it systemically produced racially disparate outcomes adversely affecting a community that is primarily made up of people of color.” Id. at 6.

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B. Procedural History of Boler v. Earley
Plaintiffs Beatrice Boler, Pastor Edwin Anderson and Mrs. Alline Anderson, and EPC Sales, LLC, a Flint business, brought a class action on behalf of purchasers of Flint water. They brought suit against Darnell Earley and Gerald Ambrose, both former emergency managers of Flint; Dayne Walling, the former mayor of Flint; the City of Flint; Governor Rick Snyder; the State of Michigan; the Michigan Department of Environmental Quality (MDEQ); and the Michigan Department of Health and Human Services (MDHHS).
The Plaintiffs filed suit in the Eastern District of Michigan on January 31, 2016, alleging twelve causes of action, five of them pursuant to 42 U.S.C. § 1983: (1) impairment of the constitutional right to contract; (2) deprivation of substantive and procedural due process; (3) breach of the duty to protect against state-created danger; (4) breach of the Equal Protection Clause; and (5) deprivation of property interest without due process or just compensation. The Plaintiffs also alleged claims for (6) conspiracy to deprive them of a constitutional right in violation of 42 U.S.C. § 1985; (7) breach of contract; (8) unjust enrichment; (9) breach of implied warranty of merchantability; (10) violation of the Michigan Consumer Protection Act, M.C.L. § 445.903; (11) conversion; and (12) gross negligence.
The Plaintiffs filed a motion for a preliminary injunction, seeking to enjoin the defendants from billing and collecting money from Flint residents for water. At a status conference following briefing on the preliminary injunction, the district court asked the parties to provide supplemental briefing on whether the court had jurisdiction over the case. The court subsequently dismissed the case for lack of subject matter jurisdiction, finding that the Plaintiffs’ § 1983 claims were precluded by the SDWA, leaving only state law claims over which the court did not have jurisdiction. The district court did not address the Plaintiffs’ claim under 42 U.S.C. § 1985, but presumably found it similarly preempted by the SDWA. This appeal followed.
C. Procedural History of Mays v. Snyder
On November 13, 2015, Plaintiffs Melisa Mays, individually and as next friend of three minor children, Michael Mays, Jacqueline and Keith John Pemberton, Elnora Carthan, and Rhonda Kelso, individually and as next friend of one minor child, filed suit on behalf of a

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proposed class of Flint residents or regular users of Flint water since April 25, 2014. They sued
several defendants: Governor Snyder; former Michigan Treasurer Andy Dillon; Director of
MDHHS Nick Lyon; former director of MDEQ Daniel Wyant and six former MDEQ officials1;
Genesee County Drain Commissioner Jeff Wright; former Flint Emergency Managers Edward
Kurtz, Darnell Earley, and Gerald Ambrose; former Flint Mayor Dayne Walling and three
former Flint city officials2; the State of Michigan; and the City of Flint.
The Plaintiffs filed an Amended Complaint on May 25, 2016. It alleged six causes of
action, four of them under 42 U.S.C. § 1983: (1) violation of substantive due process through
state-created danger; (2) violation of substantive due process through an invasion of the
fundamental right to bodily integrity; (3) intentional race discrimination in violation of the Equal
Protect Clause; and (4) impermissible wealth-based discrimination in violation of the Equal
Protection Clause. The Plaintiffs also asserted that the Defendants (5) engaged in a racially-
motivated conspiracy to deny equal protection under 42 U.S.C. § 1985, and (6) engaged in
discrimination in violation of Michigan’s Elliot-Larsen Civil Rights Act, M.C.L. § 37.2302.
Relying on its finding of preclusion by the SDWA in Boler, the district court dismissed
the Mays Plaintiffs’ § 1983 claims for lack of subject matter jurisdiction under Rule 12(b)(1).3
The court also determined that without the § 1983 claims, Plaintiffs’ § 1985 claim “based upon
1These officials, who are sued in their individual capacity, are: Liane Shekter Smith, Chief of the Office of Drinking Water and Municipal Assistance for MDEQ; Adam Rosenthal, a Water Quality Analyst assigned to MDEQ’s Lansing District Office; Stephen Busch, District Supervisor for MDEQ’s Lansing District Office; Patrick Cook, a Water Treatment Specialist assigned to MDEQ’s Lansing Community Drinking Water Unit; Michael Prysby, an engineer assigned to District 11 (Genesee County) of MDEQ; and Bradley Wurfel, Director of Communications for MDEQ.
2These former City of Flint officials are: Howard Croft, Director of Public Works; and Michael Glasgow and Daugherty Johnson, both Utilities Administrators.
3In Mays, the district court dismissed the claims pursuant to motions under both 12(b)(1) and (6) but specifically referred to its disposition of Boler. The Mays Defendants continue to treat this issue as one of jurisdiction. The Plaintiffs note that whether their § 1983 claims are preempted by the SDWA is probably a merits, not jurisdictional, issue because it goes to the availability of a cause of action rather than the court’s power to adjudicate a case. Similar cases examining like questions of preemption have arisen as motions to dismiss under Rule 12(b)(6) or for summary judgment. See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 249 (2009) (district court dismissed § 1983 claims based on Rule 12(b)(6)); Mattoon v. City of Pittsfield, 980 F.2d 1, 2 (1st Cir. 1992) (district court granted summary judgment to defendants on § 1983 claims). We have not found other comparable cases using a Rule 12(b)(1) motion to address statutory preemption of § 1983 claims; it appears that the district court incorrectly addressed this issue as jurisdictional. We nonetheless examine the underlying question of preemption.

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the same conduct” also failed. Having dismissed the federal claims, the court declined to exercise supplemental jurisdiction over the state law discrimination claim. Plaintiffs appealed, and their case was consolidated with Boler.
II. ANALYSIS
We “appl[y] a de novo standard when reviewing the district court’s determination of jurisdiction.” Dealer Computer Servs. Inc. v. Dub Herring Ford, 547 F.3d 558, 560 (6th Cir. 2008). Likewise, we review questions of constitutional and statutory interpretations de novo. Communities for Equity v. Mich. High Sch. Athletic Ass’n, 459 F.3d 676, 680 (6th Cir. 2006).
A. Preclusion of § 1983 Claims by the Safe Drinking Water Act
The district court’s SDWA preemption analysis drew from Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 21 (1981), in which the Supreme Court found that the § 1983 claims presented were preempted by the statutes alleged. The court primarily relied on the First Circuit’s determination that the SDWA foreclosed other federal remedies for an alleged right to “safe and potable water.” Mattoon v. Pittsfield, 980 F.2d 1, 4–6 (1st Cir. 1992). The Plaintiffs argue that this is not the proper focus of their claims, and more importantly, that the district court misapplied the standard enunciated by the Supreme Court in its line of cases that began with Sea Clammers and concluded with Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 252 (2009).
The provisions of 42 U.S.C. § 1983 may serve as a vehicle for a plaintiff to obtain damages for violations of the Constitution or a federal statute. Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
In Sea Clammers, the Court examined claims—brought under the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251, and the Marine Protection, Research, and Sanctuaries Act (MPRSA), 33 U.S.C. § 1401, as well as under § 1983—alleging violations of

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those statutes as a result of damage to fishing grounds from pollution. 453 U.S. at 4–5. Focusing on Congress’s intent in enacting FWPCA and MPRSA and finding that they provide “unusually elaborate enforcement mechanisms,” the Court held that the plaintiffs could not use § 1983 to enforce their rights under those pollution statutes. Id. at 13. The Court compared § 1983 to FWPCA and MPRSA, primarily examining the extensiveness of the remedial scheme and its relationship to congressional intent: “[w]hen the remedial devices provided in the particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Id. at 20. Based on these statutory provisions, the Court found it “hard to believe that Congress intended to preserve the § 1983 right of action” for violations of the statute. Id.
The Court reaffirmed this intent-based analysis in subsequent cases. In Smith v. Robinson, 468 U.S. 992 (1984), the plaintiffs brought suit against their child’s school district for relief under both the Education of the Handicapped Act (EHA) and, pursuant to § 1983, the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Court first looked to the text of the statute and its legislative history and found Congress’s express statements that it had designed the EHA to help the States “comply[] with their constitutional obligations to provide public education for” children with disabilities. Id. at 1009–10. It next reviewed the statute’s procedural mechanisms, focusing on the “comprehensive nature of the procedures and guarantees” in the EHA. Id. at 1010–11. The Court concluded that the language of the statute, its legislative history, and the comprehensive nature of its procedures and remedies reveal Congress’s intent that the statute to be the “exclusive avenue” for plaintiffs to bring all their claims and, thus, § 1983 claims were precluded. Id. at 1012–13.
A few years later, in City of Rancho Palos Verdes v. Abrams, 544 U.S. 113 (2005), the Court examined preclusion of § 1983 claims where the plaintiff sought injunctive relief under the Telecommunications Act (TCA), but damages and attorney’s fees under § 1983 for violations of the federal statute. This returned the Court to a comparison between statutes, as in Sea Clammers. The Court concluded that the detailed and restrictive remedies in the TCA “were deliberate” and indicated Congress’s intent that the statutory remedies were “not to be evaded through § 1983.” Id. at 124.

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In the most recent Supreme Court authority on these issues, Fitzgerald, the Court explained the distinction between § 1983 claims premised on constitutional violations and those based on statutory violations in determining whether a § 1983 claim is precluded. “In those cases in which the § 1983 claim is based on a statutory right, evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Fitzgerald, 555 U.S. at 252. The Court then explained:
In cases in which the § 1983 claim alleges a constitutional violation, lack of congressional intent may be inferred from a comparison of the rights and protections of the statute and those existing under the Constitution. Where the contours of such rights and protections diverge in significant ways, it is not likely that Congress intended to displace § 1983 suits enforcing constitutional rights. Our conclusions regarding congressional intent can be confirmed by a statute’s context.
Id. at 252–53 (quotation marks and citations omitted). The Court examined Title IX under this framework and found that it contained only an implied private right of action rather than an express private remedy, lacked a comprehensive remedial scheme, and its substantive protections diverged from those provided by the Equal Protection Clause. Id. at 256–58. The Court determined that Title IX did not foreclose the plaintiff’s equal protection claim brought under § 1983. In doing so, it acknowledged that it was mindful of Smith’s admonition to “not lightly conclude that Congress intended to preclude § 1983 as a remedy for a substantial equal protection claim.” Id. at 256 (quoting Smith, 468 U.S. at 1012). Indeed, when the Supreme Court found in Smith that the EHA precluded an equal protection constitutional claim under § 1983, the Court based its decision on those three key components—the express language of the EHA and its legislative history, the comprehensive nature of remedial scheme, and the Court’s conclusion that the plaintiffs’ constitutional claims were “virtually identical to their EHA claims.” Smith, 468 U.S. at 1009–12.
Fitzgerald was preceded and followed by our own cases that articulate standards in line with the test it set out. We found a § 1983 claim under the First Amendment not precluded by the whistleblower provisions of the SDWA. Charvat v. E. Ohio Reg’l Wastewater Auth., 246 F.3d 607, 615 (6th Cir. 2001). Communities for Equity, in which we denied preclusion by

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Title IX and authorized an equal protection claim under § 1983, was part of the circuit split that preceded and ultimately led to the Supreme Court’s decision in Fitzgerald. See Communities for Equity, 459 F.3d at 683–91. Setting out the governing test, Fitzgerald resolved this circuit split by determining, as we did, that Congress did not intend for Title IX to preclude a § 1983 remedy for a plaintiff’s equal protection claim. See 555 U.S. at 256.
Based on the case authority set out above, the Plaintiffs in Boler and Mays aver that they do not “invoke[] § 1983 . . . as a vehicle to enforce the substantive federal law found in [the SDWA], but as a vehicle to recover for alleged violations” of various constitutional provisions, including the Contract Clause, Equal Protection Clause, and Due Process Clause—allegations that they state would be actionable even if Congress had never enacted the SDWA. Communities for Equity, 459 F.3d at 684. Plaintiffs argue that the fact that Congress “created a set of substantive statutory requirements, and adopted a set of procedures for enforcing those requirements, does not . . . suggest that Congress intend[ed] to foreclose a Section 1983 remedy for the violations of independent rights that find their source, not in laws passed by Congress, but in the Constitution itself.”
The focus of our inquiry on this question is congressional intent. See Communities for Equity, 459 F.3d at 684 (“The question of what Congress intended . . . concerns not only which remedies Congress sought to provide for [statutory] violations, but whether Congress intended to abandon the rights and remedies set forth in [constitutional jurisprudence] when it enacted [the statute].”). “The burden . . . lies with the defendant in a § 1983 action to prove preclusion.” Charvat, 246 F.3d at 615.
1. Statutory Text and Legislative History
The beginning point for examining congressional intent is the language of the statute. See Sea Clammers, 453 U.S. at 13 (“We look first, of course, to the statutory language, particularly to the provisions . . . for enforcement and relief. Then we review the legislative history and other traditional aids of statutory interpretation to determine congressional intent.”). We addressed this very issue in Charvat, and determined that the whistleblower provisions of the SDWA and Clean Water Act (CWA) did not preclude the First Amendment claims brought by

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that plaintiff pursuant to § 1983. See 246 F.3d at 613–15. Our analysis focused solely on the SDWA’s whistleblower provisions; we found that they provide for an administrative remedy only and determined the remedies provided to be insufficiently comprehensive to foreclose relief under § 1983. Id. at 614–15. The Plaintiffs argue that Charvat was an application of the principle that a federal statutory scheme will not preempt independently existing constitutional rights when those rights have contours distinct from the statutory claim.
Charvat does not control our decision here, but we find instructive its analysis that emphasizes a focus on the wording of the statute. That focus accords with Fitzgerald’s analysis, which clarifies that review differs depending on whether “the § 1983 claim is based on a statutory right” or “alleges a constitutional violation.” 555 U.S. at 252. Fitzgerald concludes its explanation of that distinction by noting that “[c]ontext, not just literal text, will often lead a court to Congress’ intent in respect to a particular statute.” Id. (quoting Rancho Palos Verdes, 544 U.S. at 127 (Breyer, J., concurring)).
In Sea Clammers and Rancho Palos Verdes, the Court determined that the statutory remedies at issue were sufficiently comprehensive to evince congressional intent to preclude § 1983 claims for violations of the statute. In Smith, the Court addressed whether the EHA precludes a § 1983 claim based on a constitutional violation and began with a focus on what the legislature said in the Act and its legislative history. The Court found that specific provisions of the EHA evidenced that it was enacted for the very purpose of allowing children with disabilities to pursue their constitutional claims. See Smith, 468 U.S. at 1009–12. Explaining its context, the Act noted that “Congress also recognized that in a series of ‘landmark court cases,’ the right to an equal education opportunity for handicapped children had been established.” Id. at 1010 (quoting S. Rep. No. 94-128, at 13 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1425). In addition to protecting that right, the legislative history stated the purpose of Congress in passing the Act: “to provide assistance to the States in carrying out their responsibilities under State law and the Constitution of the United States to provide equal protection of the laws.” Smith, 468 U.S. at 1010 (quoting S. Rep. No. 94-128, at 6 (1975), reprinted in 1975 U.S.C.C.A.N. 1425, 1437) (emphasis added). As a result, the Court found that the EHA

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contained the expression of Congress’s intention to preclude a § 1983 claim based on a constitutional violation.
We examine the Safe Drinking Water Act in light of the analysis employed by these precedent cases. The language of the SDWA centers on instructions to the EPA to establish the requirements for national drinking water standards. See 42 U.S.C. § 300g-1. Its provisions set out standards identifying particular contaminants selected for regulation and establishing maximum levels that limit the amount of those specified contaminants permitted in public drinking water systems. See id. § 300g-1(b). The statutory language also specifies the time frame for the EPA’s promulgation of regulations, the use of science in the EPA’s decisionmaking, and the technology by which public systems should achieve compliance with the standards. See id.
The Defendants have not pointed to any indications of preclusive intent in the text or legislative history of the SDWA in their briefing, nor were they able to do so at argument. The Plaintiffs point to portions of the text and legislative history of the SDWA that they suggest show the statute was not intended to foreclose § 1983 claims for constitutional rights. For example, the SDWA was adopted pursuant to Congress’s power under the Commerce Clause, U.S. Const. Art. I, § 8, rather than its power under Section 5 of the Fourteenth Amendment to enforce constitutional rights. See Nebraska v. E.P.A., 331 F.3d 995, 999 (D.C. Cir. 2003) (stating that “the Commerce Clause provides the constitutional authority for” the SDWA). Accordingly, the Plaintiffs note that the findings enunciated in the SDWA emphasize Congress’s focus on the interstate economic impacts of polluted drinking water, not on any constitutional violations that may accompany the pollution.
Unlike the EHA examined in Smith, the SDWA does not use language related to constitutional rights, or codify legal standards that appeared in prior cases to enforce rights guaranteed by the Constitution. See Smith, 468 U.S. at 1009–10. We find no clear inference from either the text of the statute or its legislative history that Congress intended for the SDWA’s remedial scheme to displace § 1983 suits enforcing constitutional rights. This, in turn, informs our next step—evaluating the comprehensiveness of the remedial scheme provided by the statute.

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2. Remedial Scheme
Lacking textual support from the statute or its legislative history, the Defendants contend that the SDWA’s remedial scheme is so comprehensive that it demonstrates congressional intent to preclude remedies under § 1983. They argue that the remedial provisions of the SDWA are similar to those examined in Sea Clammers which, along with the First Circuit’s holding in Mattoon, should direct our inquiry and conclusion, as they did that of the district court.
The SDWA’s remedial scheme authorizes the EPA Administrator to compel compliance with the standards promulgated by the statute, 42 U.S.C. § 300g-3(b), and to assess civil penalties against violators of SDWA regulations. Id. § 300g-3(g)(3). The statute also provides for judicial review of the Administrator’s actions, including the establishment of drinking water regulations, id. § 300j-7(a), and contains a citizen-suit provision allowing a private action against any person in violation of the statute for injunctive relief. Id. § 300j-8. Plaintiffs bringing claims under the SDWA must also comply with certain procedural requirements, including providing a notice of intent to potential defendants 60 days prior to filing suit. Id. § 300j-8(b)(1)(A). This remedial scheme contains a number of similarities to the schemes in the pollution statutes in Sea Clammers.
The Plaintiffs respond that the SDWA’s savings clause, id. § 300j-8(e), demonstrates that Congress intended to preserve independent remedies for conduct also violating the statute. The savings clause states that “[n]othing in this section [establishing the SDWA’s private right of action] shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any requirement prescribed by or under this subchapter or to seek any other relief.” Id. § 300j-8(e). Sea Clammers rejected a similar argument about the FWPCA and MPRSA’s savings clauses, which were similarly worded. See Sea Clammers, 453 U.S. at 20 n.31. The Court found that it was “doubtful that the phrase ‘any statute’ include[d] the very statute in which [that] statement was contained.” Id. at 15–16. But that determination was premised on violations of the statute itself. The Court also recognized that the savings clause was intended to “allow further enforcement of antipollution standards arising under other statutes or state common law.” Id. at 20 n.31; see also Guertin v. State of Mich., No. 16-cv-12412, 2017 WL 2418007, at *13–14 (E.D. Mich. June 5, 2017) (finding that the “robust

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savings clause” in the SDWA is “explicit evidence that Congress did not mean to preempt” the plaintiffs’ constitutional claims because such a finding would “certainly affect” the plaintiffs’ ability to bring such claims). The language of the SDWA’s savings clause lends support to a conclusion that Congress contemplated leaving open § 1983 as an avenue of relief for claims arising under the Constitution.
We pause to address Mattoon, which we do not find dispositive. The plaintiffs in Mattoon brought claims premised on SDWA violations, and a claim of infringement of an alleged “constitutional right to safe drinking water.” 980 F.2d at 5. The Plaintiffs here do not allege that violation, but rather bring claims for violations of specific constitutional provisions including the Contract Clause, Equal Protection Clause, and Due Process Clause. More importantly, the First Circuit’s conclusion predated Fitzgerald, where the Supreme Court explained that when reviewing cases in which the § 1983 claim alleges a constitutional violation, the appropriate framework is to seek to infer congressional intent from the text and legislative history of the statute, review the nature and extent of the remedial scheme, and compare the rights and protections of the statute with those found in the Constitution. See Fitzgerald, 555 U.S. at 252.
Communities for Equity teaches that where constitutional claims such as those here are at issue, the question of congressional intent “concerns not only what remedies Congress sought to provide” for SDWA violations, “but whether Congress intended to abandon the rights and remedies set forth in Fourteenth Amendment equal protection jurisprudence” when it enacted the SDWA. 459 F.3d at 684.
The SDWA’s remedies are more limited than those generally available under § 1983, as the statute provides for injunctive relief only, not for recovery of damages or other monetary relief available to Plaintiffs with successful § 1983 claims. Though the statute contains a private right of action, it also includes a savings clause establishing that its private action does not restrict rights a person may exercise outside the SDWA. The availability of a private judicial remedy in the SDWA, moreover, does not conclusively establish congressional intent to preclude relief under § 1983. Rancho Palos Verdes, 544 U.S. at 122. Rather, we examine whether there are statutory indications “express or implicit” that the remedy is meant to “complement, rather

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than supplant, § 1983.” Id. And we do so in accordance with Fitzgerald’s admonition that we should be “mindful” to “not lightly conclude that Congress intended to preclude reliance on § 1983 as a remedy for a substantial [constitutional] claim.” Fitzgerald, 555 U.S. at 252.
In the context of the SDWA and its text and legislative history, we find that the remedial schemes in the SDWA are not so comprehensive as to demonstrate congressional intent to preclude remedies under § 1983 for constitutional violations. This leaves us with the last consideration set out in Fitzgerald’s framework—a comparison of the substantive rights and protections of the SDWA to the protections provided by the relevant constitutional provisions. It is Defendants’ burden to show that this comparison reveals a congressional intention for the SDWA to preclude remedies provided for under § 1983.
3. Contours of the Rights and Protections
Fitzgerald teaches that in examining the SDWA, we ask whether “the contours of the rights and protections” provided by the SDWA and those existing under the Constitution “diverge in significant ways.” Fitzgerald, 555 U.S. at 252. If they do, this “lends further support to the conclusion that Congress did not intend [the statute] to preclude § 1983 constitutional suits.” Id. at 256. In Fitzgerald, the Court highlighted Title IX’s protections as “narrower in some respects and broader in others,” and determined that this divergent coverage, along with the lack of a sufficiently comprehensive remedial scheme, showed that the statute was not intended to foreclose § 1983 relief. Id. at 256, 258. The Court examined the reach of Title IX’s remedial scheme as compared to the § 1983 claims, activities exempt under the statute that could nonetheless form the basis for equal protection claims, and the congruity of standards for establishing liability where particular activities and defendants might be subject to actions under both Title IX and the Equal Protection Clause. Id. at 257–58. It highlighted that claims brought to enforce the safeguards of the Equal Protection Clause reach only state actors, while Title IX reaches “institutions and programs [receiving] federal funds, which may include nonpublic institutions.” Id. at 257 (citations omitted). The Court illustrated how the standards for governing liability were not congruent: a Title IX plaintiff could establish deliberate indifference and school district liability for harassment through the conduct of “a single school administrator with authority,” but a similar equal protection claim against the district, brought via § 1983,

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would require showing that “the harassment was the result of municipal custom, policy, or practice.” Id. at 257–58 (citation omitted).
The Plaintiffs emphasize the divergence between the rights protected by the SDWA and those protected by their constitutional claims. The Defendants maintain that the § 1983 claims are, at their heart, based on misconduct addressed by the SDWA, arguing that they have the same factual basis as potential SDWA claims and that the allegations made in the Plaintiffs’ complaint stem from responsibilities and duties imposed by the SDWA.
The SDWA’s citizen-suit provision authorizes action against “any person,” which therefore reaches both nonpublic actors as well as the state actors covered by § 1983. See 42 U.S.C. § 300j-8(a). But even with some overlap in coverage, the substantive standards within the statute diverge significantly from the protections afforded by the Constitution. The Boler Plaintiffs allege violations of several constitutional provisions, including the Contract Clause, Due Process Clause, and Equal Protection Clause. The Mays Plaintiffs also allege due process and equal protection violations. All Plaintiffs argue that each of these constitutional rights diverge significantly from the rights and protections provided by the SDWA. We agree.
The distinct coverage of the Equal Protection Clause provides a clear example. The citizen-suit provision allows a plaintiff to file a SDWA action to “enforce . . . any requirement prescribed by or under” the statute. Id. The SDWA establishes maximum contaminant levels through its national primary drinking water regulations, which most public water systems may not exceed. Id. § 300g-1. These regulations reach only certain harmful contaminants in drinking water, and do not redress harms caused by many other contaminants that are unregulated by the SDWA. Establishing a violation of the statute does not require proof of intent or meeting any specific standard beyond showing contaminant levels in excess of the maximum established by the regulations. The statute would thus cover both intentional and negligent conduct, as long as it violated the regulation.
In a wide variety of circumstances, conduct that violates the SDWA might not violate the Equal Protection Clause, and vice versa. For example, a government entity could provide water through a public system with contaminant levels in excess of national drinking water standards

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without infringing on any equal protection principles. Likewise, a government entity could provide some customers with water that meets the requirements of SDWA standards, but that is nonetheless dirtier, smellier, or of demonstrably poorer quality than water provided to other customers. The water also could be polluted by a contaminant not regulated by the SDWA. Even though not violating the SDWA, these situations could create an equal protection issue, particularly if such distinction were based on intentional discrimination or lacked a rational basis.
A Due Process Clause example further highlights this divergence in coverage. The Mays and Boler Plaintiffs both allege that the Defendants denied them due process of law through the state-created danger doctrine, by exposing them to the contaminated water sourced from the Flint River. Establishing a due process violation through the state-created danger doctrine requires showing:
(1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party; (2) a special danger to the plaintiff wherein the state’s actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the state knew or should have known that its actions specifically endangered the plaintiff.
Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006) (citations omitted). The plaintiff “must demonstrate that the state acted with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment,” which varies depending on the circumstances. Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002). A deliberate indifference standard is used to establish culpability “in settings [that] provide the opportunity for reflection and unhurried judgments, but . . . a higher bar may be necessary when opportunities for reasoned deliberation are not present.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 469 (6th Cir. 2006) (quotation marks and citations omitted).
A violation of the SDWA that does not meet a deliberate indifference standard, such as a state actor’s negligent action resulting in contaminant levels above the established maximum, plainly would not meet the requirements of a due process violation. Likewise, a state actor’s deliberately indifferent action concerning contaminants in public water systems, which created a special danger to a plaintiff that the state knew or should have known about, could violate the

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Due Process Clause without also violating the SDWA, if the hypothetical contaminants did not exceed the statutory maximums or were not regulated by it.
Under some circumstances, actions that violate the SDWA may also violate the Equal Protection Clause or Due Process Clause. The Defendants argue that this is necessarily the case, and that the Plaintiffs’ claims could not be pursued without showing a violation of the SDWA.4 But as noted, that is often not the case, particularly where the SDWA does not even regulate a contaminant harmful to public drinking water users. The contours of the rights and protections of the SDWA and those arising under the Constitution, and a plaintiff’s ability to show violations of each, are “not . . . wholly congruent.” Fitzgerald, 555 U.S. at 258. This further supports the conclusion that Congress did not intend to foreclose § 1983 suits by enacting the SDWA.
The Defendants also appear to argue that the Plaintiffs have not actually shown that their constitutional rights were violated, as pled by the Complaints filed in Boler and Mays. But these arguments are irrelevant to the preemption question at hand—particularly because the Defendants’ arguments seek to address the merits of the claims, and the district court apparently treated the issue of preclusion as jurisdictional. The Defendants urge us to consider the due process claims as pled in these cases, and determine that the Complaints do not establish constitutional violations. At the motion to dismiss stage, however, we focus on the availability of a cause of action, not whether the plaintiffs have proven that these constitutional rights were violated.
Having resolved that there is no textual indication in the SDWA that Congress expressly chose to preempt § 1983 claims and that the provisions of the remedial scheme do not demonstrate such an intention, we also find that the contours of the rights and protections found in the constitutional claims diverge from those provided by the SDWA such that we infer lack of congressional intention to foreclose § 1983 claims. The Defendants have not demonstrated that “Congress intended to abandon the rights and remedies set forth in Fourteenth Amendment equal
4The Defendants also argue that the Plaintiffs’ claims rest on a constitutional right to safe drinking water, which no courts have found to be a fundamental right. But the Plaintiffs explicitly deny that they seek to enforce such a right, or that their claims must rest on such a right. This argument appears principally to concern the Plaintiffs’ substantive due process claims. But to show that the state-created danger doctrine or a person’s fundamental right to bodily integrity have been violated, a Plaintiff does not need to establish any constitutional significance to the means by which the harm occurs—in this case, unsafe drinking water.

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protection jurisprudence” when it enacted the SDWA. Communities for Equity, 459 F.3d at 684. Under the governing precedent, primarily that of the Supreme Court, the Defendants have not carried their burden and the Plaintiffs may thus move forward with their cases. We find that the SDWA does not preclude § 1983 claims as pled by the Boler and Mays Plaintiffs, and reverse the district court’s dismissal of their Complaints on that basis.
B. Section 1985 Claims
The Plaintiffs also brought claims under 42 U.S.C. § 1985(3), alleging that the defendants conspired to deprive them “of the equal protection of the laws, or of equal privileges and immunities under the laws.” The district court did not address this claim when dismissing Boler, presumably finding that it failed because the plaintiffs’ § 1983 claims were preempted by the SDWA. In Mays, the district court explicitly dismissed the Plaintiffs’ § 1985(3) claim, determining that “[w]ithout viable constitutional claims” under § 1983, the Plaintiffs’ “conspiracy claim under § 1985(3) based upon the same conduct also fails.” Since we find that the SDWA does not preclude the Plaintiffs’ § 1983 claims, we likewise reverse the district court’s dismissal of their claims brought under § 1985(3).
C. Eleventh Amendment Sovereign Immunity
The State of Michigan, Governor Snyder, MDEQ, and MDHHS (collectively, “State Defendants”) argue that the Eleventh Amendment serves as a separate and independent jurisdictional bar to the plaintiffs’ claims against them. The Boler Plaintiffs respond that the State Defendants’ conduct in litigation constitutes waiver of their Eleventh Amendment protections. Both the Boler and Mays Plaintiffs assert that the Ex Parte Young doctrine applies to their claims against Governor Snyder.
Though not addressed by the district court, we examine the question of sovereign immunity as part of our continuing obligation to consider our jurisdiction over the appeal. Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d 590, 598 (6th Cir. 2016). Sovereign immunity protects states, as well as state officials sued in their official capacity for money damages, from suit in federal court. Ernst v. Rising, 427 F.3d 351, 358 (6th Cir. 2005). It also applies to state agencies or departments, such as MDEQ and MDHHS. See Pennhurst State Sch.

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& Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Sovereign immunity “does not extend to counties and similar municipal corporations,” such as the defendants associated with the City of Flint in these cases. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). There are three exceptions to sovereign immunity: (1) when the state has waived immunity by consenting to the suit; (2) when Congress has expressly abrogated the states’ sovereign immunity, and (3) when the doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), applies. See Puckett, 833 F.3d at 598. Section 1983 does not abrogate Eleventh Amendment immunity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989) (stating that Congress did not intend to “disturb the States’ Eleventh Amendment immunity” by passing § 1983). As a result, only the other two exceptions—consent or the application of Ex Parte Young—may apply in these cases.
1. State Waiver Via Conduct in Litigation in Boler
Consent to a suit may be indicated expressly, or “take the form of a voluntary appearance and defense on the merits in federal court.” Lawson v. Shelby Cty., 211 F.3d 331, 334 (6th Cir. 2000). Removing an action from state to federal court will constitute waiver. Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 616 (2002). But appearance in court to present certain defenses, such as a statute of limitations argument, is not a defense on the merits indicating waiver of immunity. See Akers v. Cty. of Bell, 498 F. App’x 483, 490 (6th Cir. 2012). In Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003), we determined that by engaging in substantial discovery, filing a motion for summary judgment, and only raising an Eleventh Amendment defense after an adverse ruling on the summary judgment motion, the State of Tennessee had voluntarily invoked jurisdiction sufficient to waive its sovereign immunity defense.
The Boler Plaintiffs first argue that the State Defendants’ conduct in litigation demonstrates their consent to the suit, specifically by passing legislation with the intent of affecting the Plaintiffs’ claims. Public Act 24, which provided $30 million in appropriations for the Flint water crisis, was signed into law on February 26, 2016, two days after the Plaintiffs filed for a preliminary injunction. The Plaintiffs assert that the State Defendants increased their efforts to pass Act 24 only after they knew the motion for a preliminary injunction was imminent, and that the legislation was passed in part to be used as a “tool in litigation.” As

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evidence, the Plaintiffs point to the State Defendants’ briefing on jurisdiction before the district court, where they argued that Act 24 “mooted” the Plaintiffs’ requests for relief. The Plaintiffs argue that this conduct, as well as the State Defendants’ participation in settlement negotiations, demonstrates their consent to litigation in the interests of reaching a resolution on the merits.
As support, the Plaintiffs cite Vaquerias Tres Monjitas, Inc. v. Comas, 992 F. Supp. 2d 39, 47 (D.P.R. 2013), where the court stated that “once the Government voluntarily agreed to use public funds” to compensate the plaintiffs for their losses as a result of pricing violations, the Commonwealth of Puerto Rico “expressly waived its Eleventh Amendment immunity by its conduct in litigation.” The court also found that the Commonwealth’s participation in settlement agreements further confirmed this waiver. Id. However, on appeal, the First Circuit forcefully stated that the district court’s determination that Puerto Rico had waived its Eleventh Amendment immunity was “in no sense necessary to . . . entry of the judgment,” and that the statements were “dicta,” “wholly gratuitous,” and “ha[d] the obvious effect of causing confusion.” Vaquerias Tres Monjitas, Inc. v. Pagan, 748 F.3d 21, 23 (1st Cir. 2014). The First Circuit emphasized that the “standard for finding [Eleventh Amendment] waiver is a stringent one,” and strongly suggested that the district court amend the order to delete the language. Id. at 27. The applicability of the district court’s opinion in Vaquerias is therefore quite limited. Nor have we found other support for the proposition that encouraging the passage of an appropriations bill that might affect a plaintiff’s claims or engaging in settlement negotiations would constitute conduct in litigation that indicates consent to waive sovereign immunity.
Though we find that the State Defendants have participated in some litigation conduct, their actions do not rise to the level of a waiver of their Eleventh Amendment immunity. We note that their defense that the SDWA precludes the Plaintiffs’ § 1983 claims is arguably a “defense on the merits in federal court,” Lawson, 211 F.2d at 334, since other courts have typically treated similar claims as merits issues rather than threshold questions of jurisdiction. But since the district court considered the argument to be jurisdictional and the Boler appeal follows from the court’s ruling on a 12(b)(1) motion, we find that the State Defendants’ participation in the argument does not constitute a defense on the merits.

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We also note that the State Defendants presented a defense to the Boler Plaintiffs’ motion for a preliminary injunction, arguing against the merits of the case without raising the issue of sovereign immunity. Nor did the issue arise in the defendants’ Joint Statement of Resolved and Unresolved Issues. The State Defendants first invoked the defense of sovereign immunity in their Supplemental Brief for Jurisdictional Arguments, which was prompted by the district court at a status conference. Nonetheless, this participation in litigation does not rise to the level of waiver. In Ku, Tennessee only raised an Eleventh Amendment defense after “engaging in substantial discovery, filing a motion for summary judgment,” and the district court had issued a “final adverse ruling.” 322 F.3d at 432; see also Hunter v. Hamilton Cty. Bd. of Elections, 850 F. Supp. 2d 795, 801–02 (S.D. Ohio 2012) (finding that the Board of Elections, which was an arm of the state, had waived Eleventh Amendment immunity by participating in extensive pre-trial activities before the district court and Sixth Circuit, including appealing the district court’s order granting a preliminary injunction, participating in a discovery conference, and filing a trial brief). The State Defendants’ conduct does not rise to the same level in this instance, where the district court never issued any final judgments before the motion to dismiss and the parties had not yet engaged in discovery. We find that the State Defendants have not waived their sovereign immunity, and affirm the district court’s dismissal of the Boler Plaintiffs’ claims against the State of Michigan, MDEQ, and MDHHS on this basis.5
2. The Ex Parte Young Doctrine
The exception set forth in Ex Parte Young allows plaintiffs to bring claims for prospective relief against state officials sued in their official capacity to prevent future federal constitutional or statutory violations, “regardless of whether compliance might have an ancillary effect on the state treasury.” S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir. 2008) (citations omitted). But the doctrine does not extend to retroactive relief or claims for money damages. Id. at 508; see also Edelman v. Jordan, 415 U.S. 651, 663 (1974). To determine if Ex Parte Young applies, we “need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
5The Boler Plaintiffs also argue that the State Defendants, through operation of the Emergency Manager law, became agents and servants of the City of Flint, which does not have Eleventh Amendment immunity. The Plaintiffs offer no support for this argument, and it does not overcome the Eleventh Amendment bar.

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prospective.’” Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 616 (6th Cir. 2003) (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)) (alteration in original).
a. Application of Ex Parte Young to Governor Snyder in Boler
The State Defendants argue that Ex Parte Young is inapplicable because the Boler Plaintiffs do not actually seek prospective injunctive relief against Governor Snyder, but restitution, and because they have not shown any ongoing violations of federal law. The Plaintiffs respond that Ex Parte Young applies to the injunctive relief they seek, and that the State Defendants, including Governor Snyder, continue to play an active role in the water crisis that is producing ongoing violations of their constitutional rights.
But the Boler Complaint does not make clear what those ongoing violations are. The State Defendants posit that the Plaintiffs concede that there is no threat to their ongoing rights by acknowledging that Flint has already reconnected to DWSD. Though we do not find any such concession, the Complaint does appear to be focused on Governor Snyder’s conduct up until October 2015, when he “belatedly” ordered that the Flint system be reconnected to DWSD. The Plaintiffs allege that this action was part of his participation in “creating, escalating, and prolonging the dangers” to Flint water consumers, but do not clarify his ongoing involvement beyond that point. The State Defendants argue that the proposed class focuses on Flint residents who were billed for water between April 2014 and October 2015, suggesting that the conduct at issue took place within that time period. But many Complaint allegations center on the Plaintiffs’ obligation to pay for contaminated water, which is ongoing, and allegedly impairs their constitutional rights under the Contract Clause and Due Process Clause.
Even if we were to find that the Complaint alleges an ongoing violation of federal law, it is not clear what injunctive relief is sought. Though each count alleged requests injunctive relief, and the prayer for relief asks for “[a]ny other relief, including injunctive relief, as [the c]ourt deems fair,” the Plaintiffs provide no indication as to what this injunctive relief might be. Under our plain reading of the Complaint, the Boler Plaintiffs have not shown that the Ex Parte Young doctrine applies to their claims against Governor Snyder.

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b. Application of Ex Parte Young to Governor Snyder in Mays
Similarly, the State Defendants argue that Ex Parte Young does not apply in Mays, because the injunctive relief sought is not prospective or actually injunctive, and because declaratory relief is unavailable. Defendants also argue that the Plaintiffs have not shown any ongoing violations of their constitutional rights because they have “essentially concede[d] that no such threat exists” by acknowledging that Flint has reconnected to DWSD.6
But this takes too narrow a view of the ongoing constitutional violations that the Plaintiffs allege. Damage to the water pipes has been done, and has ongoing effects. The Complaint specifically refers to Flint’s current State of Emergency, which continues to the present day. It also alleges that the relief efforts by public officials have been “ineffective [and] often frivolous[] in mitigating the devastation caused” by the crisis and such “ineffective relief efforts” have themselves prolonged the effects of the crisis. This is sufficient to show an ongoing violation of the Plaintiffs’ constitutional rights, especially considering that they bring claims for, among other things, state-created danger and violation of their fundamental right to bodily integrity.
Moreover, the Mays Complaint specifically seeks “[a]n injunctive order to remediate the harm caused by Defendants’ unconstitutional conduct including, but not limited to: repairs of private property and establishment of medical monitoring to provide healthcare and other appropriate services to Class members for a period of time deemed appropriate by the Court.” It also seeks the “[a]ppointment of a monitor who will assist in the development of remedial plans including, but not limited to: early education, education intervention programs, [and] criminal and juvenile justice evaluations.” The State Defendants argue that this relief is somehow “clearly” an attempt to obtain “retroactive damages unavailable under Young.” But “[a] court may enter a prospective suit that costs the state money . . . if the monetary impact is ancillary, i.e., not the primary purpose of the suit.” Barton v. Summers, 293 F.3d 944, 950 (6th Cir. 2002).
6The Defendants also argue that the Mays Plaintiffs’ claims against the State of Michigan are barred based on sovereign immunity. The only claims asserted against the State of Michigan in Mays are Counts I and II, which allege violations of substantive due process and are brought pursuant to § 1983. The Defendants argue that the State has not consented to suit and is not a proper defendant in a cause of action brought under § 1983. The Plaintiffs appear to concede this point. We thus affirm the district court’s dismissal of the Mays Plaintiffs’ claims against the State of Michigan as barred by sovereign immunity.

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For example, the Supreme Court upheld an order enjoining a state to provide education programs as a way of redressing past racial discrimination. See Milliken v. Bradley, 433 U.S. 267, 288–90 (1977). The injunctive order did not award money retroactively, but directed the state’s conduct in the future.
That is what the Complaint seeks here: to direct the Governor’s conduct in providing services to Plaintiffs affected by the Flint water crisis. The primary purpose of this relief is not to cost the State of Michigan money, but to provide relief to the Plaintiffs through compensatory education, medical monitoring, and evaluation services. A straightforward look at the Complaint shows that this relief is properly characterized as prospective. See Verizon, 535 U.S. at 645. Thus, we find that Ex Parte Young applies to the claims made against Governor Snyder in Mays.
In sum, Eleventh Amendment sovereign immunity applies to the State of Michigan in both Mays and Boler, as well as to the Boler Plaintiffs’ claims against the MDEQ, MDHHS, and Governor Snyder. The district court’s dismissal of the Plaintiffs’ claims against these Defendants is affirmed. As noted above, Eleventh Amendment sovereign immunity does not apply to municipalities; thus, the Boler Plaintiffs’ claims against the City Defendants—Earley and Ambrose, former Emergency Managers of Flint; Walling, former Mayor of Flint; and the City of Flint—remain. Similarly, the Mays Plaintiffs’ claims against all Defendants except the State of Michigan remain.
D. Dismissal Under Alternate Grounds
The Defendants argue that, even if not precluded by the SDWA, the Plaintiffs’ § 1983 claims should be dismissed for several alternate reasons. They argue that the dismissal of both Boler and Mays should be affirmed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The Defendants also argue that Boler’s dismissal should be affirmed because the claims are merely artfully-pled state law claims, or are based on a recently issued EPA administrative order. Several Defendants in Mays also argue that claims against them should be dismissed based on absolute or qualified immunity, or as impermissibly relying on the doctrine of respondeat superior. We do not find any of these arguments availing.

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1. Dismissal Under Rule 12(b)(6) for Failure to State a Claim
The Plaintiffs correctly note that the only issues currently before us are the dismissal of their § 1983 claims as preempted by the SDWA and the question of sovereign immunity. Even though we have determined that the § 1983 claims are not foreclosed, the Defendants seek affirmance under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. We may affirm the district court on any basis supported in the record. See Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002); see also Blount-Hill v. Zelman, 636 F.3d 278, 284 (6th Cir. 2011) (affirming the district court on an alternative basis when it “further[ed] the interests of judicial economy and d[id] not unfairly prejudice the parties, as the issue ha[d] been raised and fully briefed”). We decline to do so here.
First, Boler was dismissed pursuant to a Rule 12(b)(1) motion for lack of subject matter jurisdiction. Though Mays was apparently dismissed after motions brought under both Rule 12(b)(1) and (12(b)(6), the district court premised the dismissal on its resolution in Boler—where it treated the issue as jurisdictional. The district court “has [not] addressed the merits of [the Plaintiffs’] constitutional claims or even the sufficiency of their pleadings.” Fitzgerald, 555 U.S. at 260. Nor have the Plaintiffs been given an opportunity to fully brief the merits of their constitutional claims, which involve factual complexities that are best examined by the district court in the first instance. Moreover, the Boler and Mays Plaintiffs bring distinct constitutional claims, based on different factual underpinnings and legal arguments. A consolidated appeal is not the appropriate occasion to evaluate these claims for the first time. Such an analysis, moreover, could unfairly prejudice the Plaintiffs, who have only addressed the Defendants’ Rule 12(b)(6) arguments in their reply briefs. We believe the district court is in the best position to evaluate these arguments upon remand.
2. Alternate Grounds for Dismissal of Boler Claims
The Defendants also argue that Boler should be dismissed for two additional reasons: (1) because the Plaintiffs’ claims are merely artfully-pled state law claims, and (2) based on a recent EPA administrative order. Neither argument merits affirming the district court’s dismissal.

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First, the district court did not examine the Defendants’ argument that the Boler Plaintiffs’ § 1983 claims are merely artfully-pled state law breach of contract claims. “Dismissal for lack of subject-matter jurisdiction because of the inadequacy of [a] federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior [precedent], or otherwise completely devoid of merit as not to involve a federal controversy.’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N.Y. v. Cty. of Oneida, 414 U.S. 661, 666 (1974)). That standard is easily overcome here, where the Plaintiffs have alleged several substantial constitutional claims sufficient to survive under Rule 12(b)(1). Any further evaluation of these claims on the merits, such as their sufficiency under Rule 12(b)(6), should first be performed by the district court upon remand as discussed above.
Second, the Defendants also argue that dismissal of Boler is justified based on the EPA’s recently issued Emergency Administrative Order (EAO), which directed the City of Flint and State of Michigan to take certain steps to address the Flint water crisis. The Defendants assert that the relief requested in Boler would require the district court to review and rule on the EAO, but that exclusive jurisdiction to do so is vested in the court of appeals. See 42 U.S.C. § 300j7(a)(2). The Plaintiffs do not seek review of or alterations to the EAO, and their claims do not constitute an appeal of a “final Agency action” by the EPA that would bring the action under the ambit of the SDWA’s judicial review provision. Id. Rather, their claims and the relief they seek “may parallel the EPA’s directives to . . . Flint and Michigan . . . [or] augment those orders.” Concerned Pastors for Soc. Action v. Khouri, 194 F. Supp. 3d 589, 599 (E.D. Mich. 2016) (evaluating and rejecting the same argument made by many of the same Defendants in this action). The EAO does not justify affirming the district court’s dismissal for lack of subject matter jurisdiction.

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3. Alternate Grounds for Dismissal of Mays Claims
The MDEQ Defendants also argue that dismissal of the Mays Plaintiffs’ claims against them should be affirmed on alternate grounds: (1) based on absolute or qualified immunity, or (2) as improperly seeking relief based on the doctrine of respondeat superior. Again, we find that neither argument provides an alternate basis to affirm the district court’s dismissal.7
a. Absolute or Qualified Immunity of MDEQ Officials
The MDEQ Defendants argue that the Mays claims against them are barred by absolute immunity, which protects persons “performing adjudicatory functions within a federal agency . . . from damages liability for their judicial acts.” Butz v. Economou, 438 U.S. 478, 514 (1978). The shield of absolute immunity has been extended to some officials who “perform functions closely associated with the judicial process.” Cleavinger v. Saxner, 474 U.S. 193, 200–01 (1985). But the Supreme Court has also been “‘quite sparing in [its] recognition of absolute immunity,’ and has declined ‘to extend it any further than its justification would warrant.’” Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm’n, 597 F. App’x 342, 348 (6th Cir. 2015) (quoting Burns v. Reed, 500 U.S. 478, 487 (1991)). As such, officials seeking “absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.” Butz, 438 U.S. at 506.
The MDEQ Defendants have not done so here. While they broadly assert that their actions “are analogous to those of a prosecutor exercising his prosecutorial discretion to bring suit,” they provide no case law showing that courts have found MDEQ officials, or public officials making similar decisions to those made by the MDEQ, to be entitled to absolute immunity. Nor have they provided an application of any of the factors we have used to determine that public officials are entitled to quasi-judicial immunity, such as the need to assure

7Wright, the Genesee County Drain Commissioner, also seeks to affirm the district court’s dismissal of the
Mays Plaintiffs’ claims for failure to plead facts showing that they are entitled to relief against him. For the reasons explained above, we decline to analyze whether the Plaintiffs have stated a claim against Wright under Rule 12(b)(6). But we also note that Wright’s brief does not make any independent 12(b)(6) arguments and only seeks to incorporate his arguments from a motion to dismiss filed before the district court. We “explicitly disallow[] the incorporation by reference into appellate briefs of documents and pleadings filed in the district court.” Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d 448, 453 (6th Cir. 2003). Such an attempt to incorporate by reference “does not comply with the Federal Rules of Appellate Procedure.” Id. at 452; see also Fed. R. App. P. 28(a)(8).

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that the official can perform his functions without harassment or intimidation or insulation from political influence. See Flying Dog Brewery, 597 F. App’x at 348–49. The Defendants’ conclusory arguments do not merit an extension of the absolute immunity doctrine.
The MDEQ Defendants also argue that the § 1983 claims in Mays are barred by qualified immunity. “Qualified immunity protects government officials performing discretionary functions unless their conduct violates a clearly established statutory or constitutional right of which a reasonable person in the official’s position would have known.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The test for qualified immunity is two-pronged, and the plaintiff must show that the official’s conduct (1) violated a constitutional right, and (2) that the right was clearly established. Silberstein, 440 F.3d at 311; see also Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir. 2005) (requiring that the plaintiff establish that the official’s action was “objectively unreasonable in light of the clearly established constitutional rights”).
The first part of this test involves determining whether the Mays Plaintiffs have alleged a constitutional violation. Because we have declined to analyze the merits of the Plaintiffs’ claims, we also decline to determine whether qualified immunity applies in the first instance. We deny the request to affirm the district court’s dismissal on the basis of absolute or qualified immunity.
b. Respondeat Superior
Finally, the MDEQ Defendants argue that the claims in Mays against Wyant, Shekter Smith, and Busch are based on the premise that they, as former directors and supervisors within the MDEQ, are liable for “any alleged wrongful conduct of the entire MDEQ/ODWMA/Lansing District, regardless of their level of direct involvement.” This, the Defendants assert, impermissibly rests the § 1983 claims against them on the doctrine of respondeat superior, or supervisor liability. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981) (“Section 1983 will not support a claim based on a respondeat superior theory of liability.”) (citing Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). The Plaintiffs respond that their claims against these MDEQ Defendants rest on their own personal conduct.

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Indeed, the Mays Complaint specifically alleges that Wyant participated in the decision to switch the City of Flint’s water supply to the KWA. It alleges that Shekter Smith expressed concern that Flint water would be publicly linked to the outbreak of Legionnaire’s disease, and also acknowledged that the water problems in Flint were due to “corrosion across the distribution system.” The Complaint alleges that Busch was on notice that the water treatment plant was not ready at the time Flint switched water supplies, and falsely told the EPA that the City of Flint was using corrosion control on its water supply. Finally, the Complaint alleges that both Busch and Shekter Smith received an EPA report concerning elevated levels of lead in the Flint water supply, and failed to undertake any measures to address the dangers to the public. These allegations concern the individual conduct of the MDEQ Defendants, and their own participation in the alleged violations of the Plaintiffs’ substantive due process rights. They do not rely on respondeat superior, and we deny the request to affirm the district court’s dismissal on this ground.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s dismissal of the Plaintiffs’ § 1983 claims as precluded by the SDWA. We AFFIRM the dismissal of the Plaintiffs’ claims against the State of Michigan in Mays, and against the State of Michigan, MDEQ, MDHHS, and Governor Snyder in Boler, on the basis of Eleventh Amendment sovereign immunity. We REMAND the cases for further proceedings in accordance with this opinion.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Nos. 16-1684/17-1144

16-1684
BEATRICE BOLER; EDWIN ANDERSON; ALLINA ANDERSON; EPCO SALES, LLC,
Plaintiffs - Appellants,
v.
DARNELL EARLEY; GERALD AMBROSE; DAYNE WALLING; CITY OF FLINT; STATE OF MICHIGAN; MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY; MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; RICHARD DALE SNYDER,
Defendants - Appellees.
17-1144
MELISSA MAYS; MICHAEL MAYS; JACQUELINE PEMBERTON; KEITH JOHN PEMBERTON; ELNORA CARTHAN; RHONDA KELSO,
Plaintiffs - Appellants,
v.
RICK SNYDER; STATE OF MICHIGAN; DANIEL WYANT; LIANE SHEKTER SMITH; ADAM ROSENTHAL; STEPHEN BUSCH; PATRICK COOK; MICHAEL PRYSBY; BRADLEY WURFEL; DARNELL EARLEY; GERALD AMBROSE; DAYNE WALLING; HOWARD CROFT; MICHAEL GLASGOW; DAUGHERTY JOHNSON; CITY OF FLINT; NICK LYON; ANDY DILLON; EDWARD KURTZ; JEFF WRIGHT,
Defendants - Appellees.

FILED
Jul 28, 2017
DEBORAH S. HUNT, Clerk

Before: COLE, Chief Judge; STRANCH and DONALD, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s dismissals of the Plaintiffs’ § 1983 claims as precluded by the Safe Drinking Water Act is REVERSED. IT IS FURTHER ORDERED that the dismissals of the Plaintiffs’ claims against the State of Michigan in Mays, and against the State of Michigan, the Michigan Department of Environmental Quality, the Michigan Department of Health and Human Services, and Governor Snyder in Boler are AFFIRMED. The cases are REMANDED for further proceedings consistent with the opinion of this court.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk