Rita Johnson v. City of Saginaw

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0358p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA R. JOHNSON, ┐

Plaintiff-Appellee, │

│

│

v. > No. 19-1208

│

│

CITY OF SAGINAW, MICHIGAN, │

Defendant, │

│

JASON CABELLO; JOHN STEMPLE, │

│

Defendants-Appellants,

│

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Bay City.

No. 1:17-cv-13174—Thomas L. Ludington, District Judge.

Decided and Filed: November 13, 2020

Before: MOORE, SUTTON, and WHITE, Circuit Judges

_________________

COUNSEL

ON BRIEF: Gregory W. Mair, Daniel J. LoBello, O’NEILL, WALLACE & DOYLE, P.C.,

Saginaw, Michigan, for Appellants. Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,

Hemlock, Michigan, for Appellee.

WHITE, J., delivered the opinion of the court in which MOORE, J., joined. SUTTON, J.

(pp. 22–27), delivered a separate opinion concurring in part and dissenting in part.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 2

_________________

OPINION

_________________

HELENE N. WHITE, Circuit Judge. In the early hours of Saturday, May 6, 2017, a

gunfight broke out in front of Plaintiff-Appellee Rita Johnson’s restaurant in Saginaw, Michigan.

At the time, Johnson was renting out the space for a large birthday party. An initial police

investigation concluded that a gang-related fight began inside Johnson’s building and then

moved into the street. Later that day, Defendant-Appellant John Stemple directed Defendant-

Appellant Jason Cabello to suspend water service to Johnson’s building in an effort to prevent

her from hosting further events. Johnson later filed this lawsuit, alleging Defendants violated her

procedural and substantive due process rights by shutting off her water without notice and a

hearing and without a rational basis. The parties filed cross-motions for summary judgment.

The district court denied qualified immunity to Cabello and Stemple and granted Johnson’s

summary judgment motion as to them.1 Cabello and Stemple appeal. We affirm in part, reverse

in part, and remand for further proceedings.

I. Background

Johnson owned and operated a restaurant in Saginaw called Rita’s Southern Soul Café

(the Café). Johnson also owned the building. She rented out the restaurant to organizations and

individuals for various events, including birthday parties, wedding receptions, baby showers,

fashion shows, dance classes, charitable events, and holiday gatherings.

Johnson rented the Café for the night of Friday, May 5, 2017, to Andrick Pruitt for his

birthday party. Pruitt invited a rapper to perform at the event and hired a security company. By

one account, 400 people attended, although Johnson stated the building’s capacity was 315 and

claimed 400 people could not fit in the space. Around 1:30 AM, Johnson was in the kitchen

cooking when she saw the guests running, ducking, and hiding. According to Johnson, she was

told that someone across the street was shooting at her building. In her declaration, Johnson

stated that the shooters were not connected to her and she did not believe them to be connected to

1

The district court denied Johnson’s summary judgment motion against the City.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 3

the event that night. Johnson had another party scheduled for Saturday night but canceled it due

to the damage from the shooting.

On Saturday, May 6, City officials suspended Johnson’s water service. John Stemple,

who served as the chief inspector for the City, made the decision to shut off the water without

consulting any other City employee. Stemple reached this decision after receiving information

about the shooting from the Saginaw Police Department. According to Stemple, during the party

at the Café, there was a “confrontation that occurred between par[t]ies, which moved out into the

street. And there was significant gunfire that happened in the middle of Washington Avenue.”

R. 74-4, PID 1345. Stemple “considered that an emergency situation” and decided to

discontinue water service “to protect the health, safety and welfare of the citizens of Saginaw”

and “to deter any further activity of that type from occurring until such time that a hearing and

investigation [could] occur.” Id. at PID 1344-45. Stemple relied on Michigan Building Code

112.3 and the City’s adoption of that code for his authority to shut off the water to the Café.

Through local ordinance, the City opted to be a local enforcing agency of the Michigan

Building Code. That code states in relevant part:

The building official shall have the authority to authorize disconnection of utility

service to the building, structure or system regulated by this code and the

referenced codes and standards set forth in Section 101.4 in case of emergency

where necessary to eliminate an immediate hazard to life or property or when

such utility connection has been made without the approval required by Section

112.1 or 112.2. The building official shall notify the serving utility, and wherever

possible the owner and occupant of the building, structure, or service system of

the decision to disconnect prior to taking such action. If not notified prior to

disconnecting, the owner or occupant of the building, structure or service system

shall be notified in writing, as soon as practical thereafter.

Mich. Building Code § 112.3.

Joseph Gough served as the City’s utility foreman. Gough testified that he received a call

from Stemple requesting that he turn off the water to the building in response to a shooting.

Gough then directed Cabello, a utility inspector for the City, to complete the shut off. Cabello

did not know why Gough directed him to turn off the water. According to Cabello, he was told,

“‘Inspections wants this water turned off,’ and that’s it.” R. 74-6, PID 1407. Cabello shut off

No. 19-1208 Johnson v. City of Saginaw, et al. Page 4

the water around 7:30 PM. Cabello was never advised by the City that there had been no hearing

or that notice or hearing were required before shutting off water to a building.

Although Stemple acknowledged that he did not provide Johnson with a notice regarding

her water before or after the shutoff, he testified that the City provided Johnson “an opportunity

for a hearing related to the closure or suspension of her business activities . . . within five days,

as required by the ordinance.” R. 74-4, PID 1346. Stemple testified that he did not receive

training or education regarding his “constitutional obligations as to potable water delivery as a

property right, as a constitutional right.” Id. He also stated that he has shut off water to other

businesses in response to shootings in the past. In each instance, Stemple did not provide pre-

deprivation notice and, he stated, the “[p]ractice and policy has been consistent throughout.” Id.

at 1348-49. In Stemple’s view, “the notice of the suspension of the business license covers

[water shutoffs] even though it doesn’t mention it within the body of the document.” Id. at PID

1349.

Johnson received a notice on her door regarding the suspension of her business. The

notice did not mention the water shutoff. The notice, signed by City Manager Timothy Morales

and dated May 8, 2017, stated in part:

PLEASE BE ADVISED THAT PURSUANT TO THE CITY OF SAGINAW

(“CITY”) CODE OF ORDINANCE, ALL ACTIVITY RELATED TO THE

USE AND/OR OPERATION OF THE PROPERTY LOCATED AT 110

N. WASHINGTON AVENUE, SAGINAW, MI 48601, ALSO KNOWN AS

“RITA’S SOUTHERN SOUL CAFE” (“ESTABLISHMENT”) IS HEREBY

SUSPENDED, EFFECTIVE MAY 8, 2017.

THE IMMEDIATE SUSPENSION OF BUSINESS ACTIVITY HAS BEEN

ISSUED PURSUANT TO ORDINANCE 0-1, § 110.06(F), WHICH PROVIDES

THAT THE CITY MANAGER MAY IMMEDIATELY SUSPEND ANY

LICENSE OR PERMIT ISSUED BY THE CITY OF SAGINAW UPON A

DETERMINATION THAT SUCH A SUSPENSION IS NECESSARY “IN THE

INTEREST OF THE PUBLIC HEALTH, MORALS, SAFETY, OR WELFARE.”

R. 74-8, PID 1429-30. The notice further advised that a hearing would be held on May 11, 2017.

At that hearing, the hearing officer explained, “It is my understanding that this show-cause

administrative hearing . . . is in regard to . . . a notice for the immediate suspension of the

business activity of Rita’s Southern Soul Café.” R. 74-3, PID 1317.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 5

The City’s police chief, Robert Ruth, testified that he first met Johnson around 2015,

when another party hosted at the Café ended in a similar shooting: “[I]t ended up being a lot of

gang members from Saginaw were there at the party, ended up spilling out into the front street,

there was a huge fight, and then guns were pulled and there were shots being fired up and down

Washington Avenue.” Id. at PID 1334. Ruth also testified about the ongoing investigation into

the shooting at issue:

The investigation shows that there was a fight inside of Rita’s. The security,

which was very heavily armed, broke the fight up and pushed everybody outside.

The people that were fighting went to their vehicles, retrieved guns, and started

shooting back and forth at each other. One of the security guards, the one that

was—that had an AK-47 style rifle strapped around his neck, pulled the gun up

outside of Rita’s and fired off five or six shots into the air. That scared everybody

enough to run and go in their own direction. And the shooting stopped at that

point.

Id. at PID 1335. Sixty shell casings were found in the area, at least one of which was found in

the doorway of the Café. Ruth further testified that the investigation showed the incident was

gang related. The water-service suspension came up only once during the hearing, when

Johnson stated, “My water’s off. I don’t know why. Maybe somebody here can tell me. I have

no idea. I go into my building, my water bill’s paid, but the water’s off. So I don’t know if

that’s the way of helping to shut me down.” Id. at PID 1340.

In her deposition, Johnson testified that after her water was turned off, she had issues

with the toilets, which “became heavily stained” due to the lack of water for flushing and

cleaning. R. 74-2, PID 1307. Johnson also had a pest-control service spray for “sewer flies”

which the service advised would come up through the drains due to the lack of water. Id. A

plumber quoted Johnson $6,000 for repairs. Johnson testified that she continued to make water-

bill payments although she was not receiving service. And because her business license was

revoked and her water service was discontinued, Johnson had to turn away potential renters. She

estimated that she incurred over $80,000 in lost revenue.

Johnson testified that she went to the billing department “about twice” to request that her

water service be restored but a representative told her no information regarding the shutoff could

be provided. Id. at PID 1312. Stemple testified that he did not have knowledge of these visits.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 6

The water to the building was turned back on in October of 2017 in response to the request of

Johnson’s attorney. When asked how he decided to turn the water on, Stemple responded,

“[T]he owner made a request to have the water turned on, and the emergency, as far as I was

concerned, no longer existed because the business license was suspended at that time, and

therefore, I didn’t feel it was necessary to continue that course.” R. 74-4, PID 1350. Stemple

also stated that the City never turns water back on without a request from the owner and the

owner’s presence at the building.

II. Procedural History

Johnson filed suit under 42 U.S.C. § 1983 in the Saginaw County Circuit Court, alleging

violations of her procedural and substantive due process rights. Defendants removed the case to

federal court. Following discovery, Defendants moved for summary judgment, arguing that they

did not violate Johnson’s due process rights and that Cabello and Stemple are entitled to

qualified immunity. Johnson then moved for summary judgment except as to damages. The

district court denied Defendants’ motion for summary judgment based on qualified immunity

and granted Johnson’s motion for partial summary judgment, except on her claims against the

City. Cabello and Stemple appeal.

III. Jurisdiction

“Ordinarily, the denial of a motion for summary judgment is an unappealable

interlocutory ruling.” Peterson v. Heymes, 931 F.3d 546, 553 (6th Cir. 2019). Our jurisdiction

reaches appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. This includes

“jurisdiction over collateral orders—orders that ‘finally determine claims of right separable from,

and collateral to, rights asserted in the action.’” Brown v. Chapman, 814 F.3d 436, 443 (6th Cir.

2016) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). Although we

have interpreted the collateral-order doctrine to permit review of a denial of qualified immunity,

we have jurisdiction over the appeal “only ‘to the extent that it turns on an issue of law’—the

appeal cannot be from a district court’s determination that there is a genuine dispute of material

fact.” Id. at 444 (quoting Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). “[A] defendant denied

qualified immunity may appeal only if the issue on appeal is whether the plaintiff’s facts, taken

No. 19-1208 Johnson v. City of Saginaw, et al. Page 7

at their best, show that the defendant violated clearly established law.” Quigley v. Tuong Vinh

Thai, 707 F.3d 675, 680 (6th Cir. 2013). “Fact questions, including questions of evidentiary

sufficiency, are out of our hands.” Bey v. Falk, 946 F.3d 304, 319 (6th Cir. 2019). “We have

also held that a defendant may not challenge the inferences the district court draws from those

facts, as that too is a prohibited fact-based appeal.” DiLuzio v. Village of Yorkville, 796 F.3d

604, 609 (6th Cir. 2015).

Relying on this caselaw, Johnson challenges this court’s jurisdiction. Johnson argues that

the “Defendants continue to adhere to their favorable notion that an emergency existed when

they terminated potable water delivery service” and that “[b]y not conceding . . . that no

emergency existed at the time of the termination of the water supply—Defendants have rendered

their challenge outside the jurisdiction of this Court.” Appellee’s Br. at 26-27. Appellants

respond that their “appeal centers entirely on questions of law” and they “concede the most

favorable view of the facts to” Johnson. Reply Br. at 1.

Although “a defendant challenging a district court’s denial of his motion for summary

judgment based on qualified immunity must ‘concede the most favorable view of the facts to the

plaintiff for purposes of the appeal,’” Rafferty v. Trumbull County, 915 F.3d 1087, 1092 (6th

Cir. 2019) (quoting Baker v. Union Twp., 587 F. App’x 229, 232 (6th Cir. 2014)), an attempt to

dispute the underlying facts does not entirely deprive us of jurisdiction:

If . . . aside from the impermissible arguments regarding disputes of fact, the

defendant also raises “the ‘purely legal’ question of ‘whether the facts alleged . . .

support a claim of violation of clearly established law,’” then there is an issue

over which this court has jurisdiction. Therefore, this court can ignore the

defendant’s attempts to dispute the facts and nonetheless resolve the legal issue,

obviating the need to dismiss the entire appeal for lack of jurisdiction.

Estate of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir. 2005) (second alteration in

original) (quoting Berryman v. Rieger, 150 F.3d 561, 562 (6th Cir. 1998)).

Appellants’ arguments “drift[] from the purely legal into the factual realm,” Berryman,

150 F.3d at 564-65, when they argue that they could not provide, and Johnson was not entitled

to, a pre-deprivation hearing because of an emergency. The district court concluded “that the

City of Saginaw could have exercised other options to prevent another event from occurring at

No. 19-1208 Johnson v. City of Saginaw, et al. Page 8

the property” and that “there was nothing preventing the City from exercising other lawful

options to address the emergency.” R. 84, PID 1814-15. Because Appellants’ arguments

challenge the district court’s factual determination that the shutoff was not reasonably necessary

to eliminate an emergency, we lack jurisdiction to consider them on the issue of qualified

immunity at this interlocutory stage.2 See Quigley, 707 F.3d at 680.

IV. Analysis

Cabello and Stemple appeal the denial of qualified immunity.3 “This court reviews a

district court’s denial of summary judgment based on qualified-immunity grounds de novo.”

Quigley, 707 F.3d at 679. Summary judgment is appropriate “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “Courts consider the evidence in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s favor.” Quigley, 707 F.3d at

679. The key question for this court is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as a

matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

“An assertion of qualified immunity may be overcome if the defendants violated a clearly

established constitutional right.” United Pet Supply, Inc. v. City of Chattanooga, 768 F.3d 464,

484-85 (6th Cir. 2014). “Thus, a defendant is entitled to qualified immunity on summary

judgment unless the facts, when viewed in the light most favorable to the plaintiff, would permit

a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right

2

Cabello and Stemple also argue that the district court’s order “granting Plaintiff’s Motion for Partial

Summary Judgement and denying Defendants’ Motion for Summary Judgment must be reversed.” Appellants’ Br.

at 6. To the extent that Cabello and Stemple seek to appeal the district court’s partial grant of summary judgment to

Johnson as it relates to issues other than qualified immunity, we lack jurisdiction to consider their argument.

“‘[A] partial summary judgment on the issue of liability alone is not a “final decision” under 28 U.S.C. § 1291,’ nor

does such an order qualify as an immediately appealable collateral order.” Farm Labor Org. Comm. v. Ohio State

Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002) (quoting Brennan v. Township of Northville, 78 F.3d 1152, 1157

(6th Cir. 1996)). And Appellants do not request that we exercise pendent appellate jurisdiction. See Kovacic v.

Cuyahoga Cnty. Dep’t of Child. & Fam. Servs., 724 F.3d 687, 697 (6th Cir. 2013). Therefore, the issue before us is

limited to qualified immunity.

3

Appellants briefly note that “Cabello was not part of any decision-making process to suspend Plaintiff’s

water, but simply following the instructions of his work order.” Appellants’ Br. at 22. Before the district court,

however, they did not distinguish between Cabello and Stemple regarding qualified immunity. And, on appeal, they

neither develop the argument nor cite to any relevant authority. We therefore decline to address the issue.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 9

was clearly established.” Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011). “Although

addressing both questions is ‘often beneficial,’ we are ‘permitted to exercise [our] sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.’” United Pet Supply,

768 F.3d at 485 (alteration in original) (quoting Pearson v. Callahan, 555 U.S. 223, 236 (2009)).

“An action’s unlawfulness must be apparent in light of pre-existing law, but the very

action in question need not previously have been held unlawful.” Daily Servs., LLC v. Valentino,

756 F.3d 893, 900 (6th Cir. 2014). The “unlawfulness can be apparent from direct holdings,

from specific examples described as prohibited, or from the general reasoning that a court

employs.” Hensley v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012) (quoting Feathers v. Aey,

319 F.3d 843, 848 (6th Cir. 2003)). “[A]n official ‘cannot be said to have violated a clearly

established right unless the right’s contours were sufficiently definite that any reasonable official

in the defendant’s shoes would have understood that he was violating it.’” Schulkers v. Kammer,

955 F.3d 520, 533 (6th Cir. 2020) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)).

Appellants argue that “there has been no violation of Plaintiff’s procedural or substantive due

process rights” and “[t]he right to continued water service to a business that cannot operate and is

suspended to prevent an emergency situation, where a postdeprivation process is available, is not

clearly established.” Appellants’ Br. at 21, 22-23. Johnson contends that Cabello and Stemple

violated her clearly established constitutional rights by depriving her of her property interest in

continued water service without notice or a hearing (procedural due process claim) and depriving

her of that property interest without a rational basis (substantive due process claim).

A. Procedural Due Process

1. The Parratt Doctrine

Appellants assert that a pre-deprivation hearing was impossible or impracticable and that

“Plaintiff had two meaningful postdeprivation procedures available: the hearing and appeal

provided by the City, and a state-law tort action for her damaged toilets.” Appellants’ Br. at 10-

11, 19. Appellants argue that we must therefore reverse under Parratt v. Taylor, 451 U.S. 527,

539 (1981) and its progeny. Id. We disagree.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 10

“A fundamental requirement of due process is the opportunity to be heard. It is an

opportunity which must be granted at a meaningful time and in a meaningful manner.” United

Pet Supply, 768 F.3d at 485 (internal quotation marks omitted) (quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965)). “When the situation necessitates ‘quick action’ by the state or makes

efforts to provide a meaningful predeprivation process impracticable, the persons acting under

state authority may proceed without violating the property owner’s rights so long as the state

provides an adequate postdeprivation procedure.” Harris v. City of Akron, 20 F.3d 1396, 1401

(6th Cir. 1994) (quoting Parratt, 451 U.S. at 539). Under the Parratt doctrine, “[i]f an official’s

conduct would otherwise deprive an individual of procedural due process but is ‘random and

unauthorized,’ the Parratt doctrine allows the state to avoid liability by providing adequate

remedies after the deprivation occurs.” Daily Servs., 756 F.3d at 901. Thus, we “may dismiss a

procedural due process claim if the state provides an adequate postdeprivation remedy and

‘(1) the deprivation was unpredictable or “random”; (2) predeprivation process was impossible

or impracticable; and (3) the state actor was not authorized to take the action that deprived the

plaintiff of property or liberty.’” Id. at 907 (quoting Copeland v. Machulis, 57 F.3d 476, 479

(6th Cir. 1995)).

Here, the record does not support the conclusion that the deprivation was random or

unpredictable.4 Stemple estimated that he has shut off water service to a dozen businesses in

response to similar situations and that no notices or hearings were provided. Stemple testified

that the “[p]ractice and policy has been consistent throughout” the water suspensions. R. 74-4,

PID 1348-49. Stemple further testified that if the same events occurred at a place next door to

the Café, he would suspend water service there as well. Similarly, Gough testified that no

notices are provided prior to water-service suspensions. Thus, it appears that Johnson’s water

4

Appellants also argue that “the onus rests with the Plaintiff to prove that there was no adequate state-law

remedy available to adequately compensate her for the alleged harm” and that Johnson failed to do so. Appellants’

Br. at 11. However, “[t]he rule requiring a § 1983 plaintiff to show the inadequacy of a state’s post-deprivation

corrective proceedings . . . applies only where . . . the state cannot feasibly provide a predeprivation hearing.”

Silberstein v. City of Dayton, 440 F.3d 306, 315 (6th Cir. 2006). This was not a random, unauthorized deprivation,

nor was this a situation where the state could not “feasibly provide a predeprivation hearing.” Thus, Johnson need

not show that the state’s post-deprivation corrective procedures were inadequate in order to adequately allege a

deprivation of her due process rights. Id. at 316.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 11

service was ordered suspended in accordance with an established practice. See Silberstein v. City

of Dayton, 440 F.3d 306, 316 (6th Cir. 2006).

In most cases, “[w]hen a deprivation occurs through an established state procedure, ‘then

it is both practicable and feasible for the state to provide pre-deprivation process, and the state

must do so regardless of the adequacy of any post-deprivation remedy.’” Id. (quoting Walsh v.

Cuyahoga County, 424 F.3d 510, 513 (6th Cir. 2005)). But in some exceptional circumstances—

when the “necessity of quick action” renders pre-deprivation process “impossible or

impracticable”—pre-deprivation process may be excused even when an action is neither random

nor unauthorized. See Harris, 20 F.3d at 1402-05 (holding that Parratt doctrine excused pre-

deprivation process for emergency demolition of decaying home even though the demolition

process was “authorized” and performed under “established procedures”).

This is not one of those exceptional cases. As we observed in the context of Johnson’s

business-license suspension, “[g]iven that the City held a hearing within three days of the

shooting (after suspending Johnson’s license), it does not appear as though it would have been

impractical for the City to have held a hearing before suspending her license.” Johnson v.

Morales, 946 F.3d 911, 923 (6th Cir. 2020). The record reveals no reason why the same is not

true of the water suspension. Further, the district court found that “there was nothing preventing

the City from exercising other lawful options to address the emergency,” R. 84, PID 1815, and

we lack jurisdiction on interlocutory review to disturb that factual inference, DiLuzio, 796 F.3d

at 609.5 “The Parratt doctrine prevents liability in order to allow the state to avoid responsibility

for denying process it cannot reasonably be expected to provide.” Daily Servs., 756 F.3d at 901.

5

The dissent’s position relies on a factual disagreement with the district court. It argues that pre-

deprivation process was “impracticable and dangerous,” and therefore the City could comply with due process by

providing an adequate post-deprivation remedy. But the district court found that the City failed to show that pre-

deprivation process was impracticable. The dissent’s argument can only succeed if we reject the district court’s

finding. We lack jurisdiction to do so. See DiLuzio, 796 F.3d at 609 (“[A] defendant may not challenge the

inferences the district court draws from [the] facts, as that too is a prohibited fact-based appeal.”). The same point

applies to the dissent’s effort to align this case with several prior decisions where the need for quick action rendered

pre-deprivation process impossible or impracticable—a comparison that only holds water if we discard the district

court’s determination that the City had other options here. See Dissent at 23 (citing Ewing v. Mytinger &

Casselberry, Inc., 339 U.S. 594 (1950); N. Am. Cold Storage Co. v. Chicago, 211 U.S. 306 (1908); Fahey v.

Mallonee, 332 U.S. 245, 247 (1947); Harris, 20 F.3d at 1403-05 (6th Cir. 1994)); Dissent at 25 (arguing that these

cases show that “prevailing law . . . support[s] Saginaw, not Johnson,” because in those cases, “[t]he Supreme Court

and this court have both authorized more dramatic and final government gestures without process”).

No. 19-1208 Johnson v. City of Saginaw, et al. Page 12

Here, the circumstances support that Appellants could be reasonably expected to provide pre-

deprivation process.

Lastly, the suspension of Johnson’s water service was not the type of “unauthorized”

conduct contemplated by Parratt. In Zinermon v. Burch, the Supreme Court limited the

applicability of the Parratt doctrine. 494 U.S. 113 (1990). The Court considered Burch’s claim

that staff at Florida State Hospital “deprived him of his liberty, without due process of law, by

admitting him to FSH as a ‘voluntary’ mental patient when he was incompetent to give informed

consent.” Id. at 115. The Court held that Parratt was inapplicable, in part because the

employees’ conduct was not “‘unauthorized’ in the sense the term is used in Parratt.” Id. at 138.

The Court reasoned that “[t]he State delegated to them the power and authority to effect the very

deprivation complained of here” and that the deprivation was “‘unauthorized’ only in the sense

that it was not an act sanctioned by state law, but, instead, was a ‘depriv[ation] of constitutional

rights . . . by an official’s abuse of his position.’” Id. (second and third alterations in original)

(quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)). Similarly, here, Appellants cannot now

claim that their actions, which they initially argued were reasonable and in accordance with the

City’s policies, were random and unauthorized in order to defeat Johnson’s procedural due

process claim. Schulkers, 955 F.3d at 548.

The deprivation was not random, unpredictable, or unauthorized in the Parratt sense and

pre-deprivation process was not impossible or impracticable. Therefore, the Parratt doctrine is

inapplicable.

2. Constitutional Violation

To determine if Johnson received adequate procedural due process, we apply the

balancing test developed in Mathews v. Eldridge, 424 U.S. 319 (1976). United Pet Supply,

768 F.3d at 485. We weigh three factors: (1) Johnson’s private interest affected by the shutoff,

(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional substitute procedural safeguards,” and (3) “the

Government’s interest, including the function involved and the fiscal and administrative burdens

No. 19-1208 Johnson v. City of Saginaw, et al. Page 13

that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at

335.

First, as the district court noted, “[t]here can be no dispute that Johnson was deprived of a

property interest.” R. 84, PID 1816. “The Supreme Court has held repeatedly that the property

interest in a person’s means of livelihood is one of the most significant that an individual can

possess.” Ramsey v. Bd. of Educ. of Whitley Cnty., 844 F.2d 1268, 1273 (6th Cir. 1988).

Further, “[t]he city, as a water company, cannot do as it will with its water. It owes a duty to

each consumer. The consumer, once taken on to the system, becomes dependent on that system

for a prime necessity of business, comfort, health, and even life.” Palmer v. Columbia Gas of

Ohio, Inc., 479 F.2d 153, 163-64 (6th Cir. 1973) (quoting Wood v. City of Auburn, 32 A. 906,

908 (Me. 1895)).6 Appellants argue that “there would be no reason to supply water to an

abandoned building.” Appellants’ Br. at 13. However, the building was not abandoned.

Potential customers continued to inquire about the venue’s availability as Johnson tried to restore

her business. Johnson testified that she had to turn down business opportunities and lost over

$80,000 in revenue. Further, she had a plumber and a pest-control service inspect the building.

She also “[h]ad to go buy garbage cans and pay somebody to carry them into the building . . .

and wash dishes and wash everything down.” R. 74-2, PID 1305-06. Because of the damage

resulting from the shooting and the water shutoff, Johnson was at the building to clean, replace

the windows, and fix the toilets. Appellants further argue that the deprivation was “temporary”

and “minor.” Appellants’ Br. at 13. However, Johnson had no water service for five months.

And the Supreme Court has held that “[a]lthough utility service may be restored ultimately, the

cessation of essential services for any appreciable time works a uniquely final deprivation.”

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 20 (1978). Thus, the first Mathews

factor weighs in Johnson’s favor.

6

The dissent argues that the first Mathews factor does not favor Johnson because she had “a commercial

interest in the water, not a residential interest.” Dissent at 24. The dissent cites no authority to support this

distinction. The dissent’s position is at odds with our recognition that water is a “prime necessity of business,”

Palmer, 479 F.2d at 163, and that a “property interest in a person’s means of livelihood is one of the most significant

that an individual can possess,” Ramsey, 844 F.2d at 1273.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 14

The second factor, the risk of an erroneous deprivation through the procedures used and

the value of additional safeguards, also weighs in Johnson’s favor. “The ‘root requirement’ of

the Due Process Clause requires that ‘an individual be given the opportunity for a hearing before

[she] is deprived of any significant property interest.’” Silberstein, 440 F.3d at 315 (quoting

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)). In some situations, “the failure

to provide a pre-deprivation hearing does not violate due process” if “the government provided

adequate post-deprivation process.” United Pet Supply, 768 F.3d at 486. Here, however, the

post-deprivation process was inadequate and created a significant risk of erroneous deprivation.

Appellants argue that Johnson had “an opportunity to be heard on the suspension of her water”

and point to her statements at the show-cause hearing. Appellants’ Br. at 9. However, the notice

sent to Johnson did not mention her water service. And the shutoff was not the stated subject of

the hearing and was mentioned only once, by Johnson herself, to express her confusion and to

ask for an explanation, which she never received. Thus, Johnson did not receive “notice of the

case against [her] and opportunity to meet it.” Mathews, 424 U.S. at 348-49 (internal quotation

mark omitted) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 172

(1951)). And, as the Supreme Court observed, “the probability of error in utility cutoff decisions

is not so insubstantial as to warrant dispensing with all process prior to termination.” Memphis

Light, 436 U.S. at 20.7

The third factor is the government’s interest and the burden of additional procedures.

Appellants argue that they “had a strong interest in preventing further violence from recurring at

Plaintiff’s business.” Appellants’ Br. at 15. Although “the government has a substantial interest

in ensuring the safety of its citizens,” Johnson, 946 F.3d at 923, Appellants do not explain why

they could not use other means of furthering that interest without violating Johnson’s

constitutional rights. And even if we accept that providing a pre-deprivation hearing would have

been burdensome, it would not have been burdensome to address the water suspension at the

7

The dissent suggests that the second Mathews factor cuts against Johnson because “[g]overnment conduct

with a ‘low incidence of abuse’ requires less process,” and water shutdowns in Saginaw were rare, occurring “only

one time” or “only a few” times. Dissent at 24 (citations and brackets omitted)). But John Stemple testified that that

he had shut down water in similar situations at least a dozen times, and that such actions were part of a “consistent

. . . [p]ractice and policy.” R. 74-4, PID 1347-49. The dissent’s suggestion that these shutdowns only happened

“once” or “a few” times fails to read the record in the light most favorable to Johnson, which we must do at this

stage.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 15

show-cause hearing and notify Johnson of her opportunity to be heard on the subject. Thus, on

balance, this factor also weighs in Johnson’s favor.

Because of Johnson’s significant interest in continued water service, the high risk of an

erroneous deprivation, and the value and minimal burden of additional safeguards, we conclude

that Appellants violated Johnson’s constitutional right to procedural due process.

3. Clearly Established Right

In the context of Johnson’s procedural due process claim, “the ‘clearly established law’

inquiry should ask whether a reasonable official would understand that the plaintiff was entitled

to notice and an opportunity to be heard” prior to suspending her water service. Daily Servs.,

756 F.3d at 903. “[T]he Supreme Court has held that the hallmark of due process is that a

deprivation of a property interest must be ‘preceded by notice and opportunity for hearing

appropriate to the nature of the case.’” Cahoo v. SAS Analytics Inc., 912 F.3d 887, 901 (6th Cir.

2019) (quoting Chandler v. Village of Chagrin Falls, 296 F. App’x 463, 470 (6th Cir. 2008)).

For Johnson “to have a constitutionally recognized property interest in the benefit of water

service, she ‘must have more than an abstract need or desire for it[,] . . . more than a unilateral

expectation of it. [She] must, instead, have a legitimate claim of entitlement to it.’” Golden v.

City of Columbus, 404 F.3d 950, 955 (6th Cir. 2005) (alterations in original) (quoting Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972)). The Supreme Court has

recognized two sources for such a claim of entitlement: “state statutes and contracts, express or

implied, between the complaining citizen and the state or one of its agencies.” Id. Therefore, as

a paying customer with a contract for water service, Johnson had a constitutionally recognized

property interest in continued water service. Appellants do not claim otherwise.

Appellants argue instead that “the right to ongoing utility services to a business that

cannot operate . . . is not clearly established.” Appellants’ Br. at 19. There are several problems

with this argument. First, Appellants made a somewhat different argument before the district

court.8 Second, we previously held “that Johnson . . . stated a viable procedural due process

8

Cabello and Stemple, in their response to Johnson’s summary judgment motion, conceded that Johnson

had a “constitutionally protected property interest” in “water service to [her] business,” but argued that under the

No. 19-1208 Johnson v. City of Saginaw, et al. Page 16

claim based on the government’s failure to provide her some type of hearing before suspending

her [business] license.” Johnson, 946 F.3d at 925. Appellants therefore have not established that

Johnson was validly prevented from operating her business. If the business suspension was not

valid, it would not support the water suspension. Finally, Appellants ignore that when they

suspended the water service, they cut off service not only to Johnson’s business but also to the

building she owned. Thus, even if the suspension of Johnson’s business license called into

question her right to continued water service as a business owner, Appellants have not explained

how this would negate her right to water service as the owner of the building.

“It is well settled that the expectation of utility services rises to the level of a ‘legitimate

claim of entitlement’ encompassed in the category of property interests protected by the due

process clause.” Mansfield Apartment Owners Ass’n v. City of Mansfield, 988 F.2d 1469, 1474

(6th Cir. 1993). “[P]laintiff’s rights were violated when her service was terminated without any

procedural safeguards to protect her right.” Myers v. City of Alcoa, 752 F.2d 196, 200 (6th Cir.

1985). “Notice in a case of this kind does not comport with constitutional requirements when it

does not advise the customer of the availability of a procedure for protesting a proposed

termination of utility service as unjustified.” Memphis Light, 436 U.S. at 14-15. And “some

administrative procedure for entertaining customer complaints prior to termination is required to

afford reasonable assurance against erroneous or arbitrary withholding of essential services.” Id.

at 18. Therefore, “[r]easonable officials in the defendants’ positions would know that

predeprivation process—notice and an opportunity to be heard—was required before”

suspending Johnson’s water service. Daily Servs., 756 F.3d at 904. We conclude that Johnson’s

right to procedural due process prior to the deprivation of water service was clearly established

balancing test developed in Mathews v. Eldridge, 424 U.S. 319 (1976), “the interest in the continuation of her water

service to a business that cannot operate[] is relatively minor.” R. 79, PID 1774-75. They did not argue in their

motion for summary judgment, their reply to Johnson’s response, or in their response to Johnson’s summary

judgment motion, that Johnson lacked a clearly established and constitutionally protected property right in continued

water service due to the business-license suspension. Then, in their brief supporting a stay of proceedings pending

appeal, Cabello and Stemple explained that on appeal they would “contend that although Plaintiff has a continued

property interest in the water supply to her business, the interest does not extend so far as to encompass that right for

a business that cannot operate.” R. 89, PID 1942. In other words, Cabello and Stemple argued below that they

imposed only a minor burden on a recognized right to water service. But on appeal, that argument morphed into an

assertion that there was no right to water service when a business cannot operate. “Generally, we will not address

arguments raised for the first time on appeal.” Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014).

No. 19-1208 Johnson v. City of Saginaw, et al. Page 17

and the denial of qualified immunity to Appellants on Johnson’s procedural due process claim

was proper.9

B. Substantive Due Process

1. Constitutional Violation

Appellants also challenge the district court’s denial of qualified immunity on Johnson’s

substantive due process claim. “Substantive due process is ‘[t]he doctrine that governmental

deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the

procedures employed.’” Range v. Douglas, 763 F.3d 573, 588 (6th Cir. 2014) (alteration in

original) (quoting Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216 (6th Cir. 1992)). There

are “various contexts in which courts have found that substantive due process is violated—

including that the action was ‘willful and unreasoning,’ ‘shocks the conscience,’ was

‘extreme[ly] irrational[ ],’ or lacks ‘some factual basis.’” Johnson, 946 F.3d at 937 n.4 (quoting

City of Grand Blanc, 961 F.2d at 1221-22). Substantive due process also protects “[t]he right not

to be subject to ‘arbitrary or capricious’ action by a state either by legislative or administrative

action.” City of Grand Blanc, 961 F.2d at 1217.10

9

The dissent argues that the City did not violate any clearly established law, but its arguments are flawed

for the reasons given above. Its attempt to compare this case to Ewing, North American Cold Storage Co., and

Harris relies on a factual disagreement with the district court that we cannot credit. See supra at 11 n.5. Its

suggestion that Memphis Light does not help Johnson because it involved a residential interest in utilities—as

opposed to commercial one—fails to account for Palmer and Ramsey, which clearly recognize that a water is “a

prime necessity of business,” Palmer, 479 F.2d at 163, and that “the property interest in a person’s means of

livelihood is one of the most significant that an individual can possess,” Ramsey, 844 F.2d at 1273. And its

suggestion that Memphis Light—but not this case—involved a “routinized” discontinuance of water fails to account

for John Stemple’s testimony that the water shutdowns in this case were part of a “consistent . . . [p]ractice and

policy,” and that he had similarly shut down water on at least a dozen other occasions. R. 74-4, PID 1347-49.

10

Since City of Grand Blanc, this court has sometimes described “the right to be free from ‘arbitrary and

capricious’ governmental actions” as “another formulation of the right to be free from conscience-shocking actions.”

Range, 763 F.3d at 588. The City of Grand Blanc court, however, addressed these as separate strands of

substantive-due-process analysis. 961 F.2d at 1217. Similarly, in Harris v. City of Akron, we explained that a

substantive due process claim may arise from “official acts that are unreasonable and arbitrary and ‘may not take

place no matter what procedural protections accompany them.’” 20 F.3d at 1405 (quoting Wilson v. Beebe, 770 F.2d

578, 586 (6th Cir. 1985)). And in Warren v. City of Athens, we reaffirmed “that a substantive due process violation

occurs when arbitrary and capricious government action deprives an individual of a constitutionally protected

property interest” without reference to the shocks-the-conscience standard. 411 F.3d 697, 707 (6th Cir. 2005).

No. 19-1208 Johnson v. City of Saginaw, et al. Page 18

“Proving a violation of substantive due process requires not only that the challenged state

action was arbitrary and capricious, but also that the plaintiff has a constitutionally protected

property or liberty interest.” Andreano v. City of Westlake, 136 F. App’x 865, 870-71 (6th Cir.

2005). As discussed above, Johnson’s “expectation of utility services rises to the level of a

‘legitimate claim of entitlement’ encompassed in the category of property interests protected by

the due process clause.” Mansfield, 988 F.2d at 1474.

Appellants argue that the Michigan Building Code provided a rational basis for their

actions. They challenge the district court’s interpretation and conclusion that the ordinance

authorizing disconnection of utilities did not apply because “the ‘emergency’ must be in the

context of the maintenance and use of the actual building” rather than an emergency related to

“criminal activity occurring outside the building.” R. 84, PID 1813-14; Appellants’ Br. at 15-18.

However, whether or not the district court’s interpretation is correct, neither Appellees nor the

district court point to any controlling authority suggesting that the simple misinterpretation and

misapplication of a municipal ordinance constitutes a violation of substantive due process. And,

we have rejected similar arguments.11

11

For example, we considered a § 1983 claim “brought by a workman who was accidentally injured on a

school construction project.” Lewellen v. Metro. Gov’t of Nashville & Davidson Cnty., 34 F.3d 345, 346 (6th Cir.

1994). Lewellen worked at a building site that was “directly beneath a 23,900-volt ‘open conductor’ power line.”

Id. It was “uncontested that the presence of the energized power line this close to the new building violated

applicable safety and electrical code standards.” Id. at 347. Still, no one “warned construction workers about the

power line” and “Lewellen sustained a severe electrical shock that caused extensive third-degree burns.” Id.

Lewellen’s “theory was that the defendants had deprived him of liberty and/or property without due process of law

in violation of his ‘substantive’ rights under the Fourteenth Amendment.” Id. at 346. Despite the code violations,

we concluded there was no constitutional violation. Id. at 351.

And in a habeas corpus action, we considered the petitioner’s argument that Ohio courts had erroneously

interpreted the Ohio speedy trial statute. Hutchison v. Marshall, 744 F.2d 44, 46 (6th Cir. 1984). We explained that

“[e]ven if it could be said that the state court’s interpretation is wrong, it has long been recognized that ‘a mere error

of state law’ is not a denial of due process.” Id. (quoting Gryger v. Burke, 334 U.S. 728, 731 (1948)).

Other circuits that have examined this issue have reached the same conclusion. See Indiana Land Co., LLC

v. City of Greenwood, 378 F.3d 705, 711 (7th Cir. 2004) (holding that “an error of state law is not a violation of due

process.”); Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992) (rejecting the

“assertion that the City’s enforcement of an invalid zoning ordinance is the kind of ‘truly irrational’ governmental

action which gives rise to a substantive-due-process claim”); Amsden v. Moran, 904 F.2d 748, 757 (1st Cir. 1990)

(holding “that a regulatory board does not transgress constitutional due process requirements merely by making

decisions ‘for erroneous reasons’ or by making ‘demands which arguably exceed its authority under the relevant

state statutes’” (quoting Creative Env’ts, Inc. v. Estabrook, 680 F.2d 822, 832 n.9 (1st Cir. 1982))); Crocker v.

Hakes, 616 F.2d 237, 239 n.2 (5th Cir. 1980) (characterizing the argument that a city council “did not have

discretion whether to enforce the determination of the zoning board of appeals” as “not of constitutional

No. 19-1208 Johnson v. City of Saginaw, et al. Page 19

Two additional arguments, however, support Johnson’s claim that the water shutoff

violated her substantive due process right to be free from arbitrary or capricious state action.

First, in considering Johnson’s substantive due process claim regarding the suspension of her

business license, we explained, “The City’s action is only rationally related to promoting public

health, morals, safety, or welfare if it somehow deters or prevents conduct that threatens those

interests. Thus, suspending Johnson’s license is rational only if Johnson and her business

somehow caused or contributed to the violence.” Johnson, 946 F.3d at 938. The same reasoning

applies here.12 Appellants assert that the party hosted at Johnson’s business precipitated the

shooting. But the issue before us “is whether the plaintiff’s facts, taken at their best, show that

the defendant violated clearly established law.” Quigley, 707 F.3d at 680. Johnson stated in her

declaration that the shooting had no connection to her or her business. Stemple also testified that

his goal was to prevent Johnson from hosting another event that might attract further violence.

Johnson, however, testified that she could not hold another event that weekend because of

damage from the shooting and because her “windows were busted.” R. 74-2, PID 1311-12.

Viewing the evidence in the light most favorable to Johnson, the water shutoff could not

rationally prevent further violence and “a reasonable jury could find that [Stemple] acted

arbitrarily and capriciously in deciding to” shut off Johnson’s water service. Paterek v. Village

of Armada, 801 F.3d 630, 649 (6th Cir. 2015).

Second, Appellants failed to restore Johnson’s water service for five months. Stemple

testified that the City “never turns any water back on, regardless of the circumstances, without a

request from the owner. The owner has to be present for that water turn-on to ensure that valves

aren’t open, ultimately racking up a high bill for the person.” R. 74-4, PID 1351. In the abstract,

that might be a reasonable practice. However, Stemple could not point to any formal policy

regarding requests or provide any procedure by which Johnson could make such a request,

stating only, “That’s in the water department’s rules, I would assume. I don’t know.” Id. at

proportions” and concluding that “[t]he violation of a state statute does not automatically give rise to a violation of

rights secured by the Constitution”).

12

In Johnson v. Morales, Johnson appealed “the district court’s order dismissing her case for failure to state

a claim.” 946 F.3d at 916. We concluded that “Johnson adequately pled that the City lacked a rational basis to

suspend her license and thus plausibly alleged that the City violated her substantive-due-process rights.” Id. at 939.

The record here contains evidence not presented in that case, including the show-cause hearing transcript and the

depositions of Cabello and Stemple.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 20

1350-51. According to Stemple, Johnson’s water service was not restored before October 2017

“[b]ecause the owner did not request it.” Id. at 1350. Johnson, however, testified that she went

to the billing department “about twice” to ask that her water be turned on. R. 74-2, PID 1312.

She also inquired about her water service at the show-cause hearing and clearly hoped that

someone present could assist her in restoring it. Viewing the evidence in the light most

favorable to Johnson, it would be arbitrary and capricious for Appellants to deny or ignore her

requests. Further, as the district court concluded, the goal of preventing future violent incidents

“was completely accomplished by terminating Johnson’s business license. . . . The utter

redundancy of the decision to discontinue water services suggests that it was ‘willful and

unreasoning action.’” R. 84, PID 1823. And, as Stemple testified, it was not “necessary to

continue that course” once “the owner made a request to have the water turned on, and the

emergency . . . no longer existed because the business license was suspended.” R. 74-4, PID

1350. Once Johnson’s business license was suspended, the water shutoff served no rational

purpose.

For these reasons, Johnson has made an adequate showing that the water shutoff violated

her right to substantive due process.

2. Clearly Established Right

“To be clearly established, a legal principle must have a sufficiently clear foundation in

then-existing precedent.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). “[T]here

must either be ‘controlling authority or a robust consensus of cases of persuasive authority.’”

Guertin v. Michigan, 912 F.3d 907, 932 (6th Cir. 2019) (quoting Plumhoff v. Rickard, 572 U.S.

765, 780 (2014)). “Officials do not enjoy qualified immunity simply because the exact conduct

in question has not previously been held unlawful by a court, but ‘in the light of pre-existing law

the unlawfulness must be apparent.’” Lanman v. Hinson, 529 F.3d 673, 688 (6th Cir. 2008)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

No. 19-1208 Johnson v. City of Saginaw, et al. Page 21

Johnson argues that at the time of the deprivation, it was clearly established that

Defendants could not suspend her water service in an arbitrary and capricious manner.13 The

cases she cites in support, however, are not “clear enough that every reasonable official would

interpret [them] to establish the particular rule the plaintiff seeks to apply.” Wesby, 138 S. Ct. at

590. Although Myers, Memphis Light, and Palmer support Johnson’s right to procedural due

process in the utility context, they did not address substantive due process. And in Mansfield, we

concluded that the challenged state action did “not violate the substantive aspects of the Due

Process Clause of the Fourteenth Amendment.” 988 F.2d at 1478. Therefore, these cases do not

clearly establish the circumstances in which the requirements of substantive due process prohibit

a local official from suspending a customer’s water service.

Because “existing law” did not place “the constitutionality of the officer’s conduct

‘beyond debate,’” we conclude that Appellants are entitled to qualified immunity on Johnson’s

substantive due process claim. Wesby, 138 S. Ct. at 589 (quoting Ashcroft v. al-Kidd, 563 U.S.

731, 741, (2011)).

V. Conclusion

In sum, we affirm the denial of qualified immunity on Johnson’s procedural due process

claim, reverse the denial of qualified immunity on her substantive due process claim, and remand

for further proceedings consistent with this opinion.

13

In the context of her substantive due process argument, Johnson also asserts that “Defendants were on

fair notice that such property interests existed and could not be arbitrarily and capriciously taken without due

process. Defendants instead provided no due process of any type.” Appellee’s Br. at 38. But the lack of pre-

deprivation procedure is the basis of Johnson’s procedural due process claim. And “substantive due process

concepts are not available to provide relief when another provision of the Constitution directly addresses the type of

illegal government conduct alleged by the plaintiff.” Warren, 411 F.3d at 706-07.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 22

______________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

______________________________________________________

SUTTON, Circuit Judge, concurring in part and dissenting in part. This much and no

more, the City of Saginaw decided, after Rita Johnson’s café hosted another late-night party gone

awry and after it defied prior orders designed to protect the safety and health of people in the

area. In the face of a regulation-defying party that ended with still another gun fight, Saginaw

decided to revoke the café’s license and shut down its water. With respect to my colleagues, that

reasonable decision did not violate any clearly established due process rights.

Fiction could not improve the facts. On Friday, May 5, 2017, Johnson rented her

restaurant—Rita’s Soul Food Café—for an adult birthday party slated to run until 2:00 a.m. But

that was not supposed to happen: She had previously assured police she would not host

late-night events after a shooting occurred at one of her past soirees. Flyers for the party

advertised a “[c]ash bar all night.” R.74-3 at 5. That wasn’t supposed to happen either:

Johnson’s café didn’t have a liquor license, and the Lansing Liquor Control Commission had

already sanctioned it for just that reason. Perhaps because the event’s featured entertainment—a

rapper named “Peezy”—had encountered conflicts with local gang members before, the venue

retained an eighteen-member private security force. At least one guard had an AK-47 assault

rifle.

Trouble began around 1:00 a.m. Partygoers started a fight inside the café. When security

sent them outside, the situation deteriorated. Some of the partygoers went to their vehicles,

fetched their guns, and “started shooting back and forth at each other.” Id. at 20. The firefight

blew out the café’s window and damaged neighboring property. The bedlam ended when a

security guard discharged his AK-47 into the air.

Saginaw officials suspended Johnson’s business license pending an investigation and a

hearing. Johnson does not challenge that action here. She objects to the decision to shut off the

water to the business, claiming it violated due process.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 23

To prevail, Johnson needs to show that the government deprived her of a property interest

without process. See Kerry v. Din, 576 U.S. 86, 90 (2015). The parties agree that Johnson has

a protected interest in the water. See Memphis Light, Gas, & Water Div. v. Craft, 436 U.S. 1,

10–11 (1978). The dispute turns on process, both before and after the city shut the water off.

Pre-deprivation process. Start with Johnson’s claim to a hearing before the shutoff.

Officials customarily should give process before divesting a property interest. See, e.g., id. at 18.

But that presumption does not hold where circumstances create a “necessity of quick action.”

Logan v. Zimmerman Brush Co., 455 U.S. 422, 435 (1982) (quotation omitted). And it does not

hold when quick action would protect people and property from danger. See Parratt v. Taylor,

451 U.S. 527, 538–39 (1981).

For example: The Supreme Court has rejected similar due process claims when officials

confiscated and destroyed potentially harmful drugs, Ewing v. Mytinger & Casselberry, Inc.,

339 U.S. 594 (1950); collected and destroyed potentially dangerous food, N. Am. Cold Storage

Co. v. City of Chicago, 211 U.S. 306 (1908); and seized property based on a bank’s “unfit and

unsafe” business conduct, Fahey v. Mallonee, 332 U.S. 245, 247 (1947). And we have declined

to find a violation when officials destroyed a home deemed “dangerously close” to collapse.

Harris v. City of Akron, 20 F.3d 1396, 1398, 1403–05 (6th Cir. 1994).

This case, like these cases, required quick action. Late at night, Johnson hosted a party

that defied prior orders of the city, one she knew created sufficient peril that armed guards were

in order. The party triggered an O.K. Corral-esque shootout, not for the first time, that easily

could have killed someone, whether a bystander at the party or a hapless citizen in the

neighborhood. Officials had a quick decision to make. They concluded, quite reasonably, that

public safety required shutting down the café right away. In the face of prior violations of its

orders, the city found that turning off the water would secure that end. That led them to invoke

Michigan Building Code § 112.3, which allows officials to “authorize [a] disconnection of utility

service[s] to [a] building . . . in case[s] of emergency where necessary to eliminate an immediate

hazard to life or property.”

No. 19-1208 Johnson v. City of Saginaw, et al. Page 24

Johnson acknowledges that the order prevented her from putting on parties she otherwise

would have hosted. Had the officials afforded prior process, it would have delayed the shutoff,

giving Johnson more time to continue to misuse the property and making prior process

“impracticable” and dangerous to boot. Daily Servs., LLC v. Valentino, 756 F.3d 893, 907 (6th

Cir. 2014) (quotation omitted).

Each of the Mathews factors readily supports this conclusion. Begin with the “private

interest” at stake. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Even as access to utilities

constitutes an essential resource, Johnson alleges a commercial interest in the water, not a

residential interest. While turning off water to a home imperils the residents’ “health and

safety,” Memphis Light, 436 U.S. at 18, the same is not true for a business like this one that could

not operate anyway under the city’s (unchallenged) order. The “mere postponement of the

judicial enquiry is not a denial of due process” in this context. Mitchell v. W. T. Grant Co.,

416 U.S. 600, 611 (1974) (quotation omitted). Remember that the officials did not “finally

deprive” Johnson of any protected interest. Id. They could always restore her water and pay

damages down the road, an approach much different from property invasions that deny the

owner a right to object at all. See Ewing, 339 U.S. at 599–600; N. Am. Cold Storage Co.,

211 U.S. at 319–20; Harris, 20 F.3d at 1403–05.

The “risk of an erroneous deprivation” cuts against Johnson too. Mathews, 424 U.S. at

335. Government conduct with a “low incidence of abuse” requires less process. Ingraham v.

Wright, 430 U.S. 651, 682 (1977). Water shutdowns occur rarely in Saginaw, and safety-related

shutdowns occur still more infrequently. In Cabello’s memory, “this situation [has] happened

[only] one time.” R.74-6 at 19. And Stemple could think of only a few analogous incidents in

all his time on the job. That is not a lot of risk.

Shift to the “governmental interests at stake.” Mathews, 424 U.S. at 340. Saginaw

officials have a self-evident need to conduct emergency water shutdowns, as anyone who has

dealt with a burst pipe can attest. It’s not hard to see why they may exercise that same authority

to close a business responsible for serial out-of-control parties that had already defied prior

orders of the city and had led to gang fights. Think of it this way: While a burst pipe may not

have triggered the shutdown, this functioning pipe had facilitated a lot of perilous behavior. In

No. 19-1208 Johnson v. City of Saginaw, et al. Page 25

either setting, quick undaunted action “deter[s] any further activity of [a similar] type from

occurring until such time that a hearing and investigation can occur.” R.74-4 at 3. When faced

with situations like this one, accountability is best secured by retroactive relief. If you doubt me,

ask how you would feel if fate made you the neighbor of Rita’s Café.

But all of this warms up the reader for a glaringly straightforward ground for decision:

Johnson cannot possibly overcome qualified immunity. She has not identified any case clearly

establishing that government officials must provide pre-deprivation process before discontinuing

utilities to a business that endangered the public in so many life-threatening ways. Her key case,

Memphis Light, gives comparison a bad name. It concerned the routinized discontinuance of

residential water services due to nonpayment. It has nothing to say about the targeted

discontinuance of commercial water services due to repeated public safety and welfare

violations. As one might suspect, the prevailing law in truth tacks hard the other way, supporting

Saginaw, not Johnson. The Supreme Court and this court have both authorized more dramatic

and final government actions without process when officials identified a concern for the safety

and welfare of others. See, e.g., Ewing, 339 U.S. at 600; N. Am. Cold Storage Co., 211 U.S. at

319–20; Harris, 20 F.3d at 1403–05.

Post-deprivation process. Even where due process does not demand a hearing

beforehand, an individual’s protected interest cannot be taken without “some kind of hearing

. . . at some time.” Parratt, 451 U.S. at 540. Had Johnson never received an opportunity to

challenge the water shutoff, that would be one thing. But Saginaw gave her that opportunity, and

a transcript proves it.

Recall the order of events and the hearing that followed them. The shooting at Johnson’s

café occurred in the early-morning hours on Saturday, May 6. Stemple ordered the

discontinuance of the water later that evening. On Monday, May 8, the first business day after

the shooting, Johnson received a notice from the City Manager. It advised her that “all activity

related to the use and/or operation” of her café was suspended, effective immediately. R.74-8 at

1. And it informed her that a “hearing ha[d] been scheduled” for Thursday, May 11, three days

after receipt of the notice and four days after stopping the water. Id.

No. 19-1208 Johnson v. City of Saginaw, et al. Page 26

The May 11 hearing offered all the safeguards typical of a trial-like adjudication.

Johnson and the prosecution gave opening and closing statements. Both had an opportunity to

call witnesses. Both cross-examined opposing witnesses. Neutral officials presided. Johnson

referred to the water shut-off, twice mentioning its discontinuance in the course of the hearing.

But she never asked the city to turn the water on. To this day, she has not explained her failure

to do so. And to this day, she has not presented any evidence that the hearing she received

would have given her the relief she seeks if only she had asked for it. Johnson had bigger fish to

fry and understandably so: She wanted to get her license back. But that legitimate strategy does

not a due process violation make.

Johnson also failed to show that she lacked other avenues for relief under Michigan law.

See Hudson v. City of Highland Park, 943 F.3d 792, 801 (6th Cir. 2019); Vicory v. Walton,

721 F.2d 1062, 1063 (6th Cir. 1983). As a general rule, any mechanism for securing retroactive

relief does the trick. See Zinermon v. Burch, 494 U.S. 113, 128 (1990). Because Johnson “does

not allege that [Michigan’s] post[-]deprivation remedies are inadequate,” she cannot recover.

Daily Servs., 756 F.3d at 910. That’s true even if “state remedies may not provide” her with “all

the relief [that] may have been available if [she] could have proceeded under § 1983.” Parratt,

451 U.S. at 544.

Johnson points out that, after the hearing, she “made contact with the City of Saginaw . . .

and inquired why the City did not resume potable water delivery/utility services to [her]

building.” R.75-12 at 4. She adds that officials “refused to resume potable delivery/utility

services.” Id. But by then Saginaw had already provided her process; the Constitution does not

allow Johnson to litigate deficiencies in its post-process process. Johnson could not prevail on

the point anyway. Even at that late hour, she did not introduce any evidence (or even any

allegations) clarifying these interactions. When and where did they take place? Who did she

speak to? What was said? We don’t know. Stemple’s only “recollection is [that] Rita Johnson

visited [the] water department” at some point, and he insists that he “did not have any objection

to the water being turned back on” at that time. R.74-4 at 10. On his account, the first direct

request for water reinstatement that his office received from Johnson came in the form of the

September 29, 2017 correspondence from her lawyer. Once they received that request, they

No. 19-1208 Johnson v. City of Saginaw, et al. Page 27

restored her water—without incident—within four days. This is not what the people had in mind

when they ratified the Due Process Clause.

Johnson claims that the officials erred in not automatically reversing the shutoff after the

May 11 hearing. But to what end? After the hearing, Johnson’s business license remained

suspended. And the officials knew that Saginaw had zoned Johnson’s building only for business

use. Because the building could no longer serve that function, it lay abandoned so far as any of

the officials knew. Turning on water to an abandoned building does no one any good and raises

new risks of its own.

But even if I were wrong about all of this, I remain bewildered by Johnson’s claim that

the city’s actions violated clearly established law. Memphis Gas & Light is no more useful here

than it was above. That case involved an automatic shutdown of water for nonpayment of a bill

to a home whose residents could use the water and indeed needed the water to live. This case

involves an earned shutdown of water to a business based on serial violations of public safety,

and the owner could not use the water until the business could obtain its license to operate again.

As for Johnson’s substantive due process claim, I agree with the court that she did not

establish the violation of a clearly established right, and I would leave it at that.