Katrina Brown v. Detroit Public Sch.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0090n.06

CASE NO. 18-1098

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

KATRINA BROWN, ) FILED

) Feb 21, 2019

Plaintiff-Appellant, ) DEBORAH S. HUNT, Clerk

)

v. )

) ON APPEAL FROM THE

DETROIT PUBLIC SCHOOLS ) UNITED STATES DISTRICT

COMMUNITY DISTRICT, et. al, ) COURT FOR THE EASTERN

) DISTRICT OF MICHIGAN

Defendants-Appellees. )

)

Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. The plaintiff appeals the district court’s

judgments dismissing her claims against certain defendants in this civil rights action alleging

violation of her constitutional rights and retaliation. For the reasons that follow, we AFFIRM.

I.

Katrina Brown was a public school teacher who complained to her superiors that the

school’s drinking water had unsafe levels of lead and copper and that the School District was

neither testing nor remediating it. She claims that, due to these complaints, she was harassed,

improperly reprimanded, and transferred to another school. She sued in federal court, raising seven

claims and naming ten defendants, but only some survive to this appeal: (1) retaliation for

exercising her First Amendment rights, by the school principal Felicia Cook, assistant principal

Ivan Branson, and school superintendent Alycia Merriweather; and (2) violation of her substantive

due process rights, by Cook, Branson, Merriweather, Detroit Mayor Mike Duggan, and the director

of environmental health and safety Felicia Venable-Akinbode.

No. 18-1098, Brown v. Detroit Public Schools

Cook and Branson moved to dismiss, claiming: Brown’s factual allegations were not

sufficiently specific; the Michigan Constitution cannot create a First Amendment claim; Brown

failed to exhaust her administrative remedies; substantive due process does not create a right to

safe drinking water; and qualified immunity. Duggan also moved to dismiss, claiming: Brown

failed to allege facts sufficient to state a constitutional claim against him; and absolute immunity.

Brown did not respond to the motions. The district court found the defendants “persuasive” and

dismissed them “for the reasons [they] urge,” adding that Brown “presumably concedes the

strength of [the] defendants’ arguments, as she has neither responded to their motions to dismiss

nor sought additional time within which to do so.” Brown moved the court to reconsider this

dismissal, claiming that health issues had prevented her attorney, Monica Smith, from responding,

but the court appeared annoyed rather than persuaded, concluding that:

Ms. Smith’s declaration refers to her hospitalization in early July 2017 and

unspecified medication side effects she experienced for an unspecified time

thereafter. This does not account for her alleged inability to respond to defendants’

motions (or to request additional time) four months later.

. . . Ms. Smith apparently had recovered from her medical issues by early September

2017 when she commenced this action by filing a 28-page, multi-count complaint.

Nothing in Ms. Smith’s declaration suggests that she was incapacitated in

November when her responses to defendants’ motions were due.

Finally, . . . Ms. Smith signed the complaint on behalf of United for Equality and

Affirmative Action Legal Defense Fund. According to the . . . complaint, both Ms.

Smith and another lawyer, Shanta Driver, are associated with this firm and both are

identified as ‘Attorneys for Plaintiff.’ Therefore, even if Ms. Smith was unable to

respond to defendants’ motions by the November 10, 2017, deadline (or . . . request

an extension of that deadline), Ms. Driver should have done so.

The court denied the motion.

Merriweather and Venable-Akinbode moved to dismiss the First Amendment retaliation

claim because Brown’s complaint did not allege that either of them took any adverse action against

Brown for her speech about the allegedly unsafe drinking water. The district court agreed, finding

that: “Conspicuously absent from the complaint, however, is [even] a single allegation that

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No. 18-1098, Brown v. Detroit Public Schools

Meriweather or Venable-Akinbode retaliated against [Brown]. In short, there is no allegation

specifically linking these defendants with any retaliation against [Brown].” Merriweather and

Venable-Akinbode moved to dismiss the substantive due process claim because the complaint did

not accuse them of any personal or direct involvement. The district court agreed: “[A]s with the

allegations regarding retaliation, [Brown]’s allegations identifying those who exposed her to

contaminated drinking water refer to ‘defendants’ generally or to dismissed parties or to unnamed

third parties. . . . These allegations do not, directly or impliedly, implicate Meriweather or Venable-

Akinbode.”

The court later dismissed the remaining defendants and claims pursuant to Federal Rule of

Civil Procedure 4(m), ending the case. Brown appealed.

II.

“We review de novo a district court’s dismissal of a complaint under Rule 12(b)(6).” Theile

v. Michigan, 891 F.3d 240, 243 (6th Cir. 2018). Just as the district court would do, “[w]e construe

the complaint in the light most favorable to the plaintiff.” “The plaintiff must present a facially

plausible complaint asserting more than bare legal conclusions.” Id.

A.

Brown claims the district court erred by dismissing her First Amendment retaliation claim

against defendants Cook, Branson, and Merriweather. Specifically, she says the dismissal of this

claim against these defendants, “due to the incompetency of trial counsel in failing to file a

Response to Defendants’ Motion to Dismiss” is “a miscarriage of justice,” and, therefore,

necessitates reversal.1 Brown points to the district court’s subsequent order (dismissing

1

Brown ends this portion of her appellate brief with a one-sentence rejoinder: “This case is similar to cases

in the criminal context, where courts will review verdicts where the trial counsel was guilty of ineffective of counsel

[sic] thus depriving an individual of the right to have their evidence properly considered.” But there is no “ineffective

assistance of counsel” doctrine for civil cases. See, e.g., Adams v. Vidor, 12 F. App’x 317, 319 (6th Cir. 2001). The

remedy for ineffective civil counsel is a legal malpractice action (or an attorney misconduct complaint).

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No. 18-1098, Brown v. Detroit Public Schools

Merriweather and Venable-Akinbode) in which the court opined that certain of Brown’s

accusations, namely “Cook’s poor evaluation of [Brown], Branson’s threat to fire [Brown], Cook’s

transfer of [Brown] to another school,[2] and Cook’s formal reprimand of [Brown], may suffice to

constitute adverse action for First Amendment purposes.” This, according to Brown, means: “The

trial court acknowledged the validity of [Brown]’s [F]irst [A]mendment claim against Cook and

Branson, establishing the certainty that she would have been able to prevail on that issue.” Brown

also says that she sent to Merriweather, the Superintendent of Schools, copies of the complaints

she made to the Michigan Office of Safety and Health Administration about the water quality, so

“it is likely that [Merriweather] was informed of the complaints . . . and [the] retaliation for making

those complaints,”3 which, Brown argues, overcomes dismissal “even if [her] chances of success

are remote or unlikely.” We do not agree.

To begin with, it is irrelevant that the district court, after dismissing Cook and Branson,

opined that their alleged actions “may” have qualified as adverse employment actions for purposes

of Brown’s First Amendment retaliation claim. The court had already held that Brown had not

stated a First Amendment retaliation claim against Cook or Branson and/or that they were entitled

to qualified immunity. Later, in denying Brown’s motion to reconsider, the court repeated that it

had dismissed these defendants “for the various reasons defendants presented.”

On de novo review, however, we owe no deference to the district court’s findings, rulings,

or musings. We must consider Brown’s complaint for ourselves under the proper test.

2

This was a misstatement by the district court: Brown’s complaint did not allege that Cook transferred Brown

to another school. And here on appeal Cook contends that, as a school principal, she had no such authority. Cook

and Branson also contend that because Brown was a tenured teacher, only the school board could fire or move her,

M.C.L. §§ 38.101 & .102, and that Brown knew as much. Brown did not contest either contention.

3

It bears recognizing that, even here on appeal, Brown does not claim that Superintendent of Schools

Merriweather actually, personally retaliated against her—Brown claims only a likelihood that someone must have told

Merriweather about Brown’s complaints and the alleged retaliation against her.

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No. 18-1098, Brown v. Detroit Public Schools

To establish a prima facie claim of First Amendment retaliation at the pleading stage,

Brown must have reasonably alleged: (1) some constitutionally protected speech; (2) an adverse

action taken against her that would deter a person of ordinary firmness from continuing to engage

in that speech; and (3) a causal connection—that the adverse action was motivated by the speech.

Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392, 399-400 (6th Cir. 2010).

Cook and Branson argue that the actions Brown cites—a reprimand, a poor evaluation,

empty threats to fire or transfer her, and her reassignment to teach a different grade—were de

minimis and do not constitute adverse employment actions. Brown does not squarely argue against

this proposition. She asks that we ignore her failure to make arguments in support of her complaint

below, and then she argues that the “trial court acknowledged the validity” of her first amendment

claim, something that, again, is not true. She briefly argues that she “clearly” spoke on a matter

of public concern and that it was similarly clear that her speech was the “proximate cause of the

adverse actions against her,” but she does not squarely elucidate what, precisely, those adverse

actions were. To be clear, neither Cook nor Branson fired, demoted, geographically relocated, or

subjected Brown to reduced responsibilities or benefits, and Brown suffered no economic loss due

to their actions. Brown did not defend her complaint in the district court and in spending her

energy papering-over that mistake she fails to defend it again on appeal. Whatever repercussions

Brown suffered, they were de minimis.

Brown did point to one action that is not de minimis: the geographical transfer to a school

across town. See Leary v. Daeschner, 349 F.3d 888, 901 (6th Cir. 2003). But Brown did not, in

her complaint, accuse either Cook or Branson of ordering or causing that transfer. Brown alleged

that “[i]mmediately and soon after [she complained about the water quality], [] COOK called an

emergency meeting and reprimanded BROWN before the entire staff,” but she asserted that it was

the School District that “transferred [her] to another school . . . on the other side of the city.”

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No. 18-1098, Brown v. Detroit Public Schools

Brown further specified that in May 2016, “COOK inform[ed] [Brown] that COOK was looking

for a new school for BROWN to teach at,” and that, in June 2016, “BRANSON emailed BROWN

stating ‘Your FIRED,’ [sic].” But, according to Brown, “[f]ortunately, [Cook and Branson] did

not actually carry out their threats to transfer and fire BROWN in Spring 2016. BROWN

continued to teach at [that same school] during the Summer 2016 term.” Then, Brown says, “[o]n

September 22, 2016, the [School] District informed BROWN of an immediate involuntary transfer

to [the other school],” which was “in retaliation for BROWN’s First Amendment, union, and

whistleblower activities.”

On appeal, Brown conflates defendants Cook and Branson with the defendant School

District, whether by accident or design, so as to suggest or insinuate that Cook and Branson (and

Merriweather) should be held responsible for the geographic transfer without claiming that they

were actually responsible for it. In her opening brief, Brown asserted, unequivocally, that she “is

appealing the orders of dismissal for Defendants DPSCD [i.e., the School District], Cook[,] and

Branson as to Count I, violations of the U.S. Constitution’s right to Freedom of Speech.” But in

the argument portion of the brief she addressed only Cook and Branson, and, eventually,

Merriweather. She never mentioned the defendant School District even once in her argument; nor

did she mention the School District in her reply brief. If she was intending to preserve (or

resurrect) a claim against the defendant School District, she failed to articulate how or why. See

United States v. Layne, 192 F.3d 556, 566–67 (6th Cir. 1999) (“[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed

waived.”); accord Rose v. State Farm Fire & Cas. Co., 766 F.3d 532, 540 (6th Cir. 2014); Thomas

M. Cooley Law Sch. v. Am. Bar Ass’n, 459 F.3d 705, 710 (6th Cir. 2006).

But even granting Brown the dubious assumption that her intent, in her complaint, was to

claim that the defendant School District retaliated against her for her speaking out about the water

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No. 18-1098, Brown v. Detroit Public Schools

quality by transferring her to another school, Brown did not elaborate on the theory of that

retaliation. Brown named the School District as the lead defendant, in both the caption and the

“parties” portion of her complaint. Brown then named 13 defendants in Count I, the First

Amendment retaliation claim, but omitted the School District from that list. Based on a plain

reading of her complaint and her briefing on appeal, we conclude that Brown neither raised nor

preserved a First Amendment retaliation claim against the defendant School District.

As for Merriweather, the district court found that Brown’s complaint does not contain any

accusation that Merriweather took any retaliatory action against her. A careful reading of the

complaint confirms that this is correct. The court properly dismissed this claim.

Brown has failed to state a First Amendment retaliation claim against these defendants.

B.

Brown claims the district court erred by dismissing the Substantive Due Process claims

against Cook, Branson, Duggan, Merriweather, and Venable-Akinbode. Specifically, she argues

that the district court: (1) ignored her theory of deliberate indifference, thereby improperly

requiring her to “establish specific intent to harm”; and (2) failed to “accept [the] allegations in

her complaint as true.” In her brief on appeal, Brown phrases it this way:

[Brown was] forced to utilize toxic water for over two weeks due to the shocking

misrepresentations, cover up[,] and deliberate [in]difference of Principal Cook and

Vice Principal Branson at her school, and the shocking lie by Mayor Duggan

declaring the water safe. . . . Considering the depth of this crisis, it is unfathomable

that [] Superintendent Merriweather and [] Executive Director of the Department

of Environmental Health and Safety Venable-Akinbode were not actively involved

in these actions which produced this shocking violation of [Brown]’s due process

rights to not be exposed to a state created danger.

Her complaint, however, does not track this argument; notably, it does not invoke the state-created-

danger doctrine or ever use that terminology. Count V of Brown’s Complaint, the Substantive

Due Process Claim, says, in the only pertinent part:

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No. 18-1098, Brown v. Detroit Public Schools

In providing [Brown] with contaminated water in August and September 2016

and/or causing her to consume that water, [these defendants] violated [Brown]’s

[Fourteenth-Amendment-based] right to bodily integrity and exposed her to a

foreseeable risk of harm. [Brown]’s [medical] examination in September 2016

showed elevated and dangerous levels of copper in her blood. [Brown] suffered

bodily harm and her right to bodily integrity was violated.

These allegations suggest negligence, rather than a deliberate imposition of bodily harm.

Moreover, as the Supreme Court said in Collins v. City of Harker Heights, 503 U.S. 115, 126

(1992), “[n]either the text nor the history of the Due Process Clause supports petitioner’s claim

that the governmental employer’s duty to provide its employees with a safe working environment

is a substantive component of the Due Process Clause.”

In the remainder of her complaint, Brown alleged that some unspecified testing revealed

elevated lead and copper levels in her school’s drinking water in April 2016, at which time the

School District shut off the water. According to Brown, the School District replaced the water

fixtures and, in late August 2016, turned the water back on and announced that it was safe to drink.

Thus, Brown accused the defendants of providing her with contaminated tap water for the next

“two weeks,” until September 19, 2016, when—in response to her personal initiative and

investigation—the School District again shut off the water. The School District transferred her to

another school on September 22, 2016.

Even assuming a state-created-danger theory, this is an employment setting; this is not a

custodial setting. “[T]o succeed on a § 1983 claim in a non-custodial setting, a plaintiff must prove

either intentional injury or arbitrary conduct intentionally designed to punish someone— “e.g.,

giving a worker a particularly dangerous assignment in retaliation for a political speech or because

of his or her gender”—or must “prove conscience shocking behavior.” Upsher v. Grosse Pointe

Pub. Sch. Sys., 285 F.3d 448, 453 (6th Cir. 2002) (editorial marks and quotation marks omitted)

(relying on Collins, 503 U.S. at 119).

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No. 18-1098, Brown v. Detroit Public Schools

Brown’s complaint did not allege that any defendant subjected her to contaminated

drinking water with the intent to injure or punish her—at most one could view her arguments as

alleging “conscience shocking behavior,” though, again, her complaint contains no such

accusations. She does, in her brief on appeal, use the word “shocking” repeatedly, as shown in the

excerpt above, but that is irrelevant to our Rule 12(b)(6) analysis. Without specific factual

accusations or legal arguments, we have no basis to conclude that the actions alleged in her

complaint, concerning the school’s water, rise to the level of “conscience shocking behavior.”

Moreover, the complaint does not allege that any defendant ordered her to drink any water or

directed her to engage in any conduct that would cause her harm. Therefore, as written, Brown’s

complaint does not state a substantive due process claim.

The conscience-shocking limit on substantive due process claims serves to keep the

doctrine from expanding to cover administrative incompetence or irresponsibility. See Cty. of

Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (rejecting “a body of constitutional law imposing

liability whenever someone cloaked with state authority causes harm”). Brown’s scattered and

often conclusory allegations are not “conscience shocking” for substantive due process purposes,

and her repeated use of the word “shocking” on appeal does not make them so.

Brown cites Boler v. Earley, 865 F.3d 391, 408 (6th Cir. 2017), to argue that government

officials violate substantive due process rights if they expose a plaintiff to a danger by lying about

that danger, and labels that “deliberate indifference.” But Boler held no such thing—instead, it

stated 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.” Id. at 414.

In her complaint, Brown did not, as to any of these defendants, allege any intentional harm

or point to any evidence or legal argument to support a finding of “deliberate indifference” that

“shocks the conscience.” She therefore failed to state a substantive due process claim.

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No. 18-1098, Brown v. Detroit Public Schools

III.

For the foregoing reasons, we AFFIRM the judgments of the district court.

10