Rondigo, L.L.C. v. Township of Richmond

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0149p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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RONDIGO, L.L.C., a Michigan limited liability X

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company; DOLORES MICHAELS, aka Nicolina

A. Michaels; RENEE MICHAELS, -

Plaintiffs-Appellees, -

No. 09-2185

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>

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v.

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TOWNSHIP OF RICHMOND, et al.,

Defendants, -

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and

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WAYNE WHITMAN; STEVEN MAHONEY; -

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TERESA SEIDEL; MATTHEW FLECHTER and

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ANNE HOKANSON, in their individual

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capacities,

Defendants-Appellants. -

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N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 08-10432—Gerald E. Rosen, Chief District Judge.

Argued: March 9, 2011

Decided and Filed: June 1, 2011

Before: McKEAGUE and STRANCH, Circuit Judges; MAYS, District Judge.*

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COUNSEL

ARGUED: C. Adam Purnell, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellants. Cindy Rhodes Victor, THE VICTOR FIRM, PLLC,

Troy, Michigan, for Appellees. ON BRIEF: C. Adam Purnell, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants. Cindy

Rhodes Victor, THE VICTOR FIRM, PLLC, Troy, Michigan, for Appellees.

*

The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of

Tennessee, sitting by designation.

1

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 2

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OPINION

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McKEAGUE, Circuit Judge. Plaintiffs Rondigo, LLC and Dolores Michaels

operate a farm in Richmond Township, Michigan. In 2006, Richmond Township

officials became concerned about composting operations at the farm. Eventually, these

concerns led to inspections and regulatory actions by State of Michigan officials and a

state court action to prohibit composting at the site. In January 2008, plaintiffs filed a

54-page, six-count complaint in federal court, asserting various state and federal claims

against Richmond Township and its Supervisor, a citizens coalition, numerous individual

citizens, and several state officials. The district court granted the state officials’ motion

to dismiss all claims against them except the equal protection claim. Because the ruling

on the state defendants’ motion to dismiss is a denial of qualified immunity on the equal

protection claim, the state defendants have appealed this interlocutory ruling under the

collateral order doctrine. They contend plaintiffs’ complaint does not contain sufficient

fact allegations to make out a valid claim for denial of equal protection. For the reasons

that follow, we agree and therefore reverse the denial of qualified immunity to the state

defendants.

I. FACTUAL AND PROCEDURAL BACKGROUND1

Plaintiff Rondigo, LLC (“Rondigo”) is a Michigan limited liability company

which conducts business and has its principal place of business in Macomb County, just

northeast of Detroit. Rondigo is owned by plaintiff Dolores Michaels. Since 2004,

Rondigo and Dolores Michaels (“the Rondigo plaintiffs”) have operated a farm on a 72-

acre parcel of property on 32 Mile Road in Richmond Township. On February 17, 2006,

the Rondigo plaintiffs received confirmation from the Michigan Department of

1

This factual summary is based on allegations in plaintiffs’ amended complaint and exhibits

referred to therein and attached to plaintiffs’ original complaint, all presumed true for purposes of

evaluating the district court’s ruling on the state defendants’ motion to dismiss under Fed. R. Civ. P.

12(b)(6).

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 3

Agriculture (“MDA”) that their operations at the Richmond Township location were

determined to meet the Michigan Agriculture Environmental Assurance Program

(“MAEAP”) cropping system requirements, verifying their compliance with cost-

effective pollution prevention practices and environmental regulations. MAEAP

verification is significant in that it represents a verification, based on the applicant’s

disclosures, that farm operations comply with generally accepted agricultural and

management practices (“GAAMPs”). Compliance with GAAMPs provides immunity

under state law from suit or liability for maintaining a public or private nuisance.

M.C.L. § 286.473(1).

Once this MAEAP verification was obtained, Rondigo consulted with Richmond

Township Supervisor Gordon Furstenau in relation to its proposed nutrient management

plan, which would include on-farm composting. Rondigo applied for and, on February

24, 2006, was granted a drain permit by the Macomb County Department of Public

Works, allowing extension of a driveway on the Richmond Township property to

facilitate on-farm composting. The same day, however, Rondigo also received a stop

work order from Township Supervisor Furstenau.

Because the stop work order was nonspecific, Rondigo sought explanation, but

did not receive satisfaction. “Clarification” came in the form of a March 7, 2006 letter

from Wayne Whitman, MDA Environmental Manager, to Supervisor Furstenau,

confirming that Rondigo’s proposal to conduct composting activities at the Richmond

Township site would necessitate updating the plan that had been submitted to MDA for

MAEAP verification. Meanwhile, Richmond Township had commenced action against

Rondigo in state court, seeking to enjoin further work on the driveway extension. Twp.

of Richmond v. Rondigo, LLC, No. 06-1054-CZ (Macomb Cir. Ct.).

While this state court litigation was pending, in the Summer of 2006, state

regulatory authorities began receiving citizen complaints from Richmond Township

about the 32 Mile Road operation. In response to these complaints, MDA Resource

Analyst Joe Kelpinsky conducted an inspection of the 32 Mile Road property on October

18, 2006. He found no non-compliance with GAAMPs, but suggested there could be a

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 4

need for a compost management plan. Subsequently, by letter dated October 30, 2006,

MDA Environmental Manager Wayne Whitman advised Rondigo of the need to submit

a compost operations plan, or letter of intent to develop a plan, by December18, 2006.

Another citizen complaint of odors coming from the 32 Mile Road operation was

received by MDA on November 9, 2006. This led to another MDA inspection of the

property on November 17, 2006, by Stephen Mahoney, who also detected no excessive

odors.

On February 5, 2007, following yet another complaint-responsive site inspection

on January 10, Mahoney sent a letter to Rondigo recommending certain actions.

Mahoney identified the observed stockpiling of leaves at the site as being inconsistent

with GAAMPs. Further, Mahoney identified three specific deficiencies in various plans

submitted by Rondigo to MDA in January. The documents submitted consisted of a

revised site plan, updated nutrient management plan and compost operations plan. The

plans are comprehensive. The deficiencies identified by Mahoney appear to be minor

and easily correctable, but they reflect concern about the high water table in the area and

the potential impact of composting on groundwater.

Rondigo could not move the stockpiled leaves, however, because the temporary

restraining order issued by the Macomb Circuit Court prohibited the work on the

driveway that was prerequisite to moving the leaves. Nonetheless, Mahoney sent

another letter to Rondigo, dated April 12, 2007 and actually mailed on April 17,

requiring the leaves be removed by April 19. The letter confirmed that the revised plans

received by MDA “addressed proper composting at the Rondigo facility,” but showed

“a seasonal high water table of less than two feet below the ground surface for nearly all

of the proposed composting area identified in your Site Plan and at the current staging

area where yard waste (leaves) have been placed on your property.” R. 1, Complaint ex.

26. “For this reason,” the letter continued, “MDA has determined that your facility does

not conform to the Generally Accepted Agricultural and Management Practices

(GAAMPs).” To bring the property into conformance with GAAMPs, Rondigo had to

remove all yard waste from the property by April 19, or the matter would be referred to

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 5

the Michigan Department of Environmental Quality (“MDEQ”) for pollution

investigation. Consistent with Mahoney’s letter, Rondigo also received a letter from

Janice Wilford, MAEAP Program Manager, also dated April 12 and mailed on April 17,

advising that the MAEAP verification would be withdrawn unless the leaves were

removed by April 19.

Finding itself “between leaves and a hard place,” Rondigo filed an emergency

motion in the pending state court action on April 19, 2007. The state court conducted

a conference in chambers and secured MDA’s agreement not to take any action in

relation to the 32 Mile Road property until after a ruling issued on Rondigo’s pending

motion to lift the temporary restraining order so that it could remove leaves from the

property. On May 8, 2007, the Macomb Circuit Court issued an order temporarily lifting

the restraining order for a period of fourteen days (i.e., through May 22, 2007) “to enable

[Rondigo] to move the leaves and be in compliance with the proposed site plan

submitted to the MDA.” R. 1, Complaint ex. 32. Yet, MDA was not content to wait and

see whether Rondigo actually removed the leaves by May 22. Inasmuch as the Macomb

Circuit Court had issued its ruling, thus releasing MDA from its agreement to withhold

action, Whitman, by letter dated May 17, 2007, advised Rondigo that the matter was

being referred to MDEQ because MDA had not received confirmation that the leaves

had been removed. Then, by letter dated June 8, 2007, Rondigo was advised that the

MAEAP verification was being withdrawn, for the reasons set forth in Whitman’s letter,

until the operation was brought back into compliance with GAAMPs.

The Rondigo plaintiffs allege that these two letters fail to give notice specifically

of how their operations failed to conform to GAAMPs. Yet, Whitman’s letter clearly

states that the 32 Mile Road farm was deemed to be out of compliance with GAAMPs

because MDA had not received confirmation that yard waste, which was deemed to

threaten groundwater because of the seasonal high water table in the area, had been

removed. Still, even though the Rondigo plaintiffs clearly knew they had to remove the

stockpiled leaves to satisfy MDA, and even though they had managed to secure an order

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 6

temporarily lifting the restraining order so they could remove the leaves, the complaint

is devoid of any averment that the leaves were in fact moved.

Further, plaintiffs complain of the ensuing MDEQ inspection of the property by

Tracy Kecskemeti on June 21, 2007. According to her interoffice notes, Kecskemeti

found four large leaf piles on site, but she noted that the property was very dry at the

time and there did not appear to be any runoff from this area to surface waters. She also

noted, however, that because of the seasonal high water table, there was potential for

runoff and leachate from the piles, creating a potential for discharge of pollutants into

the groundwater. She noted Rondigo’s counsel’s acknowledgment that the revised site

plan called for removal of the leaves to a different part of the property, but this

corrective action had been stymied by pending litigation. Thus, Kecskemeti’s notes,

contained in an exhibit attached to plaintiffs’ complaint, confirm that the piles of leaves,

deemed not to be in conformity with GAAMPs, had not been moved during the fourteen-

day period when the restraining order was lifted.

Finally, the Rondigo plaintiffs complain that MDEQ officials Teresa Seidel,

Matthew Flechter and Ann Hokanson continued to harass them in various ways in late

2007. Specifically, the MDEQ officials are alleged to have conducted an inspection of

the property on September 27, 2007 in relation to suspicion that, by extending the

driveway or farm access road, Rondigo had improperly filled in wetlands without a

permit. In addition, citing e-mail correspondence, the Rondigo plaintiffs allege that

harassment even took the form of unwarranted scrutiny of Dolores Michaels’ daughter,

Renee Michaels, and her involvement with Systematic Recycling composting operation

in Detroit.

Convinced that state and local authorities were unlawfully conspiring to prevent

them from ever engaging in composting operations at the 32 Mile Road farm, the

Rondigo plaintiffs commenced this action by filing a complaint in the Eastern District

of Michigan on January 30, 2008. Also named as plaintiff is Dolores Michaels’

daughter, Renee Michaels. Plaintiffs filed an amended complaint on February 5, 2008,

asserting federal and state law claims against Richmond Township and its Supervisor,

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against The Four Township Citizens’ Coalition, against some twenty-eight Macomb

County residents, and against two MDA employees (Whitman and Mahoney) and three

MDEQ employees (Seidel, Flechter and Hokanson) in their individual capacities. The

five state defendants moved the court to dismiss the complaint against them under Fed.

R. Civ. P. 12(b)(6) or alternatively, grant them summary judgment under Fed. R. Civ.

P. 56(b). On August 14, 2009, the district court adopted the magistrate judge’s report

and recommendation over objections from both sides. In accordance with the report and

recommendation, the district court granted the motion to dismiss all claims against the

state defendants, with the exception of the equal protection claim. The district court held

that plaintiffs had adequately stated an equal protection claim to pass muster at the

pleading stage.

Because their motion to dismiss was based in part on their assertion of qualified

immunity, the state defendants have taken an immediate appeal from the denial of their

motion to dismiss the equal protection claim. They contend the district court construed

plaintiffs’ equal protection claim too generously. They insist that plaintiffs have not set

forth a non-speculative basis for relief and that this is just the sort of case for which

qualified immunity is designed. The question of the state defendants’ entitlement to

qualified immunity is the only issue before the court in this appeal.

II. JURISDICTION

The Rondigo plaintiffs have not moved to dismiss the appeal, but they have

challenged the court’s jurisdiction to hear the state defendants’ particular challenge to

the district court’s interlocutory denial of qualified immunity. They recognize that a

denial of qualified immunity is immediately appealable under the collateral order

doctrine even though it is a non-final order. However, they correctly argue that such an

appeal is limited to pure questions of law. See Chappell v. City of Cleveland, 585 F.3d

901, 905-06 (6th Cir. 2009). Insofar as the state defendants argue that plaintiffs have

failed to “demonstrate” or “establish” that they were subject to less favorable treatment

than another who was similarly situated, defendants are said to be challenging the factual

support for, rather than the legal sufficiency of, plaintiffs’ equal protection claim.

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 8

The Rondigo plaintiffs’ objection to the way the state defendants have framed

the appeal misses the mark. The district court’s decision is clearly based on the

pleadings, not on the factual support for the equal protection claim. The court expressly

recognized that it was premature to evaluate the factual support for the claim before

plaintiffs were able to conduct discovery. If the state defendants’ appeal is reasonably

construed as challenging the district court’s ruling on the adequacy of the pleadings to

state a claim in avoidance of qualified immunity, then, clearly, immediate review is

available and we have jurisdiction. See Back v. Hall, 537 F.3d 552, 555-56 (6th Cir.

2008) (“Just as we gauge other pleading-stage dismissals to determine only whether the

complaint states a claim upon which relief can be granted, see Fed. R. Civ. P. 12(b)(6),

so we review an assertion of qualified immunity to determine only whether the

complaint ‘adequately alleges the commission of acts that violated clearly established

law.’” (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985))). Hence, insofar as the

state defendants’ appeal properly targets the adequacy of plaintiffs’ allegations to state

a facially valid claim for denial of equal protection, a pure question of law is presented

over which we do have jurisdiction.

III. ANALYSIS

A. Standard of Review

The district court’s rejection of the state defendants’ qualified immunity defense

at the pleading stage, posing a question of law, is reviewed de novo. Shehee v. Luttrell,

199 F.3d 295, 299 (6th Cir. 1999). Under Rule 12(b)(6), the complaint is viewed in the

light most favorable to plaintiffs, the allegations in the complaint are accepted as true,

and all reasonable inferences are drawn in favor of plaintiffs. Bassett v. Nat’l Collegiate

Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). However, “a legal conclusion

couched as a factual allegation” need not be accepted as true. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007). Plaintiffs’ obligation to provide the “grounds” for

their claimed entitlement to relief “requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. The factual

allegations must “raise the right to relief above the speculative level.” Id. The

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complaint must state a claim that is plausible on its face, i.e., the court must be able to

draw a “reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). This “plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops

short of the line between possibility and plausibility of “entitlement to relief.”’” Id.

(quoting Twombly, 550 U.S. at 557).

Assessment of the facial sufficiency of the complaint must ordinarily be

undertaken without resort to matters outside the pleadings. Wysocki v. Int’l Bus. Mach.

Corp., 607 F.3d 1102, 1104 (6th Cir. 2010). If a court does consider material outside the

pleadings, the motion to dismiss must be treated as a motion for summary judgment

under Rule 56 and all parties must be given a reasonable opportunity to present all

material pertinent to the motion. Id. However, a court may consider “exhibits attached

[to the complaint], public records, items appearing in the record of the case and exhibits

attached to defendant’s motion to dismiss so long as they are referred to in the complaint

and are central to the claims contained therein,” without converting the motion to one

for summary judgment. Bassett, 528 F.3d at 430.

B. Equal Protection

Although the complaint is lengthy, the factual allegations pleaded specifically

in support of plaintiffs’ equal protection claim under 42 U.S.C. § 1983 are minimal.

Plaintiffs allege the state defendants knew Dolores Michaels is a woman and knew

Rondigo is a woman-owned business. R. 4, Amended Complaint ¶¶ 208-09. They

allege the state defendants took actions “based on considerations other than those proper

to the good faith administration of justice, . . . far outside the scope of legitimate law

enforcement or prosecutorial discretion.” Id. at ¶ 212. These actions were allegedly

taken under color of state law and resulted in the denial of plaintiffs’ right to equal

protection of the law. Id. at ¶ 213. In support of the charge that defendants’ actions

were discriminatory, plaintiffs allege that Rick Minard, “who operated a similarly

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 10

situated farm operation which conducted on-farm composting,” received more favorable

treatment than they did. Id. at ¶¶ 117, 118. Specifically, they allege that Minard’s

compost operations plan was approved without having to meet new and additional

requirements imposed on them, including an engineered site plan, soil borings and a

nutrient management plan. Id. at ¶ 133.

The district court held these allegations were sufficient: “Plaintiffs have

articulated a cognizable, constitutional claim for violation of equal protection by alleging

that the State Defendants discriminated against them in investigations/proceedings by

gender.” R. 95, Report and Recommendation pp. 41-42. The court also held the equal

protection right asserted by plaintiffs was clearly established: “It was clearly established

that the Equal Protection Clause prohibited intentional gender discrimination unless it

was substantially related to a legitimate government objective.” Id. at 42. Accordingly,

the district court rejected defendants’ qualified immunity defense at the pleading stage.

Qualified immunity shields government officials from liability and from suit for

damages for discretionary actions taken in the performance of their duties as long as they

did not violate clearly established statutory or constitutional rights of which a reasonable

person would have known. Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 815

(2009). The purpose of the doctrine is to ensure that insubstantial claims against

government officials are resolved at the earliest possible stage in litigation. Id. When

the qualified immunity defense is raised at the pleading stage, the court must determine

only whether the complaint “adequately alleges the commission of acts that violated

clearly established law.” Back, 537 F.3d at 555-56 (quoting Mitchell, 472 U.S. at 526).

Plaintiffs’ right to freedom from invidious discrimination under the Equal Protection

Clause was certainly clearly established at all times pertinent to this action; the

fundamental question presented in this case is whether plaintiffs’ complaint alleges

sufficient facts to make out valid equal protection claim—i.e., sufficient facts to “raise

the right to relief above the speculative level,” sufficient facts to make out a “plausible

claim,” one beyond the line of “sheer possibility.”

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The Equal Protection Clause prohibits discrimination by government which

either burdens a fundamental right, targets a suspect class, or intentionally treats one

differently than others similarly situated without any rational basis for the difference.

Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). Plaintiffs’

allegations arguably implicate the second and third types of equal protection claim,

alleging Rondigo was discriminated against as a woman-owned business or was treated

differently as a “class of one” without rational basis. The district court construed the

claim solely as one for gender-based discrimination and held the allegations facially

sufficient without identifying a single fact allegation of gender-based discriminatory

animus by any of the five state defendants. Indeed, among the 250 paragraphs of the

amended complaint, there is no single allegation of action taken by any of the defendants

that hints at gender-based discriminatory animus. Plaintiffs’ mere allegations that

Dolores Michaels is a woman and Rondigo is a woman-owned business do not make out

a claim for gender-based discrimination targeting them as members of a suspect class.2

In their appellate brief, the Rondigo plaintiffs do not argue otherwise, but rely

on their allegations that Rick Minard was treated more favorably, despite being similarly

situated, as justifying an inference of unlawful discrimination. That is, plaintiffs now

argue that their allegations make out a valid “class of one” theory of discrimination. To

prevail based on such a theory, plaintiffs must show that Minard was similarly situated

in all relevant respects. See Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344,

352 (6th Cir. 2000). In addition, plaintiffs must show that the adverse treatment they

experienced was “so unrelated to the achievement of any combination of legitimate

purposes that the court can only conclude that the government’s actions were irrational.”

Warren v. City of Athens, 411 F.3d 697, 710-11 (6th Cir. 2005) (quoting Kimel v.

Florida Bd. of Regents, 528 U.S. 62, 84 (2000)). This showing is made either by

2

Not only does the complaint lack allegations of gender-based discrimination, but its assertion

that Rondigo, LLC is a woman-owned business appears not to be substantiated. In the entity’s articles of

organization filed with the Michigan Department of Consumer and Industry Services, Ronald Michaels

is listed as the member who serves as resident agent of Rondigo. The entity’s most recent Annual

Statement, filed for 2011 with the State of Michigan, continues to list Ronald Michaels as the authorized

member, manager, or agent. Dolores Michaels is not listed in any capacity in any of these filings.

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 12

negativing every conceivable reason for the government’s actions or by demonstrating

that the actions were motivated by animus or ill-will. Id. at 711.

The state defendants contend plaintiffs’ equal protection claim falls short because

their bald allegation that Minard is similarly situated, without more, is insufficient. Of

course, plaintiffs’ allegation that Minard is similarly situated does not exactly stand

alone. Even though Rule 12(b)(6) scrutiny is limited to the pleadings, the pleadings in

this case include numerous exhibits attached to the complaint, as well as exhibits

attached to defendants’ motion to dismiss that are referred to in the complaint.

Plaintiffs allege they were subject to less favorable treatment than Minard in

three ways. First, whereas Minard’s 17-page hand-written compost management plan

was approved without any requirements that he provide an engineered site plan, soil

boring results, and a nutrient management plan, plaintiffs’ compost operations plan was

not approved, even though it is more thorough and professional and meets the additional

requirements placed on them. Second, Minard’s compost operation, unlike plaintiffs’,

has allegedly not been subject to the scrutiny of repeated site inspections. Third,

Minard’s compost operation has allegedly not been referred by MDA to MDEQ for

investigation of potential pollution.

Yet, even accepting that Minard was not in fact subjected to any of these various

adverse treatments, an inference of discriminatory animus arises only if the state

defendants’ proffered reasons for the actions are negatived or shown to be irrational.

Here, however, according to exhibits attached to plaintiffs’ own complaint, as

summarized above, the state defendants gave facially legitimate reasons for their actions.

The requirements for an updated site plan, soil borings and revised nutrient management

plan were triggered by the discoveries, during site inspections, that plaintiffs had

stockpiled large amounts of leaves in an area with a seasonal high water table, creating

potential for groundwater pollution. Plaintiffs’ allegations neither impugn the

genuineness or significance of these discoveries nor aver that Minard’s composting

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 13

operation was subject to similar problems or deficiencies that should have also

forestalled MDA approval of his composting operation.3

Second, according to plaintiffs’ own exhibits, defendants’ frequent inspections

of their property were precipitated by township residents’ complaints of odors. Plaintiffs

allege these complaints were false and unsubstantiated, as verified by the site

inspections, but this does not alter the facial legitimacy of the state defendants’ purpose

for conducting the inspections. And again, there is no allegation that Minard’s operation

was the subject of neighbors’ complaints, false or otherwise, that went unheeded by the

state defendants.

Third, exhibits attached to the complaint show that the 32 Mile Road operation

was referred to MDEQ for investigation only after the Rondigo plaintiffs’ persistent

failure to remove leaves rendered their operation out of compliance with GAAMPs.

Plaintiffs have not alleged that they did in fact remove the leaves and that the potential

for groundwater pollution was remedied. Nor do they allege that Minard was found to

be in compliance with GAAMPs despite similar deficiencies, or that his operation was

not referred to MDEQ despite a finding that he was similarly out of compliance with

GAAMPs.

Although plaintiffs’ amended complaint contains 250 paragraphs and occupies

54 pages, it contains precious little factual support for the theory that the state

defendants’ more favorable treatment of Minard demonstrates they were victims of

unlawful discrimination. Although plaintiffs conclusorily allege that Minard is similarly

situated, exhibits attached to their complaint substantiate undisputed and facially

legitimate reasons for the state defendants’ complained-of actions in regulating

plaintiffs’ compost operation at 32 Mile Road—reasons that appear to be unique to that

property. Although plaintiffs make various allegations that the state defendants, acting

in concert with Richmond Township and its residents, have been unfairly demanding in

3

To the contrary, an exhibit attached to defendants’ motion to dismiss (properly considered part

of the pleadings by virtue of plaintiffs’ allegation in ¶ 117 of the amended complaint) demonstrates that

Minard’s compost operation was approved by Mahoney only after a site inspection, correction of a

deficiency, and verification that the operation complied with GAAMPs. R. 48, Motion to Dismiss ex. 7.

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 14

their enforcement of agricultural and environmental standards, no inference of unlawful

discrimination can legitimately arise where the only asserted comparable, Minard, is

shown by plaintiffs’ own pleadings to be dissimilarly situated in several relevant

respects.

In short, plaintiffs’ allegations that Minard is similarly situated and that his more

favorable treatment by defendants evidences unlawful discrimination are exposed as

little more than “legal conclusions couched as factual allegations” and need not be

accepted as true under Rule 12(b)(6) scrutiny. See Twombly, 550 U.S. at 555. Plaintiffs’

factual allegations fail to “raise the right to relief above the speculative level.” Id. They

fail to warrant a “reasonable inference that [defendants are] liable for the misconduct

alleged.” See Iqbal, 129 S. Ct. at 1949. When the allegations are viewed in light of the

exhibits attached to the complaint, they fall far short of making out a “plausible claim

of entitlement to relief” under either equal protection theory. See id.

As such, plaintiffs’ “insubstantial” equal protection claim was ripe for dismissal

under the doctrine of qualified immunity at the earliest possible stage in the litigation.

See Pearson, 129 S.Ct. at 815. The district court’s contrary ruling is based in part on a

failure to apply the Supreme Court’s teaching in Twombly and Iqbal. The district court

expressly recognized the applicability of Twombly, recognized that legal conclusions

need not be accepted as true, and recognized that the complaint must set forth “some

factual basis” for the claims asserted. Yet, the court accepted plaintiffs’ alleged legal

conclusions that Minard was similarly situated and that they were treated differently

because of gender-based discrimination without requiring supporting factual allegations.

This casual acceptance of plaintiffs’ conclusory allegations of unlawful discrimination

is at odds with the district court’s earlier determination (in dismissing other claims

against the state defendants) that “there is nothing to suggest that these Defendants’

actions were not taken in good faith and pursuant to applicable statutes.” R. 95, Report

and Recommendation at 31-32. In fact, this precise characterization applies to the equal

protection claim as well. Nothing but legal conclusions suggests that the state

defendants acted with unlawful discriminatory animus. By accepting these legal

No. 09-2185 Rondigo, L.L.C., et al. v. Township of Richmond, et al. Page 15

conclusions as sufficient, the district court failed to heed the teaching of Iqbal, 129 S.Ct.

at 1950 (“[W]here the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged—but it has not ‘shown’—‘that

the pleader is entitled to relief.’” (quoting Fed. R. Civ. P. 8(a)(2))).

IV. CONCLUSION

Based on the foregoing analysis, we conclude the district court erred by denying

the state defendants’ motion to dismiss based on qualified immunity. The factual

allegations in the complaint, viewed in conjunction with the exhibits attached to the

complaint, are insufficient to make out a valid equal protection claim under the

“plausibility standard” prescribed by the Supreme Court in Twombly and Iqbal. We

therefore REVERSE the district court’s order denying qualified immunity to the state

defendants on the equal protection claim and REMAND the case to the district court for

entry of an order dismissing the equal protection claim against the state defendants and

for further proceedings not inconsistent with this opinion.