Heather Kerchen v. Univ. of Mich.

RECOMMENDED FOR PUBLICATION

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

File Name: 24a0103p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

HEATHER KERCHEN; LORI KERCHEN; DALE KERCHEN,

│

Plaintiffs-Appellees, │

│

v. > No. 23-1718

│

│

UNIVERSITY OF MICHIGAN; JAMES H. WOODS, │

Defendants-Appellants, │

│

│

CHRISTIAN RAPHALIDES; [UNKNOWN] DOES, │

Defendants. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Flint.

No. 4:22-cv-12492—Shalina D. Kumar, District Judge.

Argued: March 19, 2024

Decided and Filed: May 6, 2024

Before: COLE, CLAY, and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ARGUED: Brian M. Schwartz, MILLER CANFIELD, PADDOCK AND STONE, P.L.C.,

Detroit, Michigan, for Appellants. Dustyn K. Coontz, COONTZ LAW, Lansing, Michigan, for

Appellees. ON BRIEF: Brian M. Schwartz, Lawrence T. Garcia, Sydney G. Rohlicek,

MILLER CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellants.

Dustyn K. Coontz, COONTZ LAW, Lansing, Michigan, William B. Norman, DEFENDING

OHIO, Berea, Ohio, for Appellees. Kyla L. Barranco. OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 2

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiffs Heather, Lori, and Dale Kerchen filed a complaint

against Defendants the University of Michigan and Dr. James Woods, alleging violations under

42 U.S.C. § 1983 and Michigan state law. Defendants appeal the district court’s order denying

their motion to dismiss without prejudice and ordering limited discovery on whether this action

is barred by the statutes of limitations applicable to Plaintiffs’ claims. For the reasons stated

below, we REVERSE the district court’s denial of Defendants’ motion to dismiss, DISMISS

various claims for lack of jurisdiction as specified below, and REMAND for proceedings

consistent with this opinion.

I. BACKGROUND

A. Factual Background

On January 25, 2000, police found Todd Kerchen (“Todd”)1 dead in his home. The night

before Todd’s death, he and his girlfriend had snorted a white powder, which Todd’s girlfriend

in later interviews referred to as either “Crystal China,” “White China,” or “China White.”

Compl., R. 1, Page ID #6, 10–11. Todd’s autopsy revealed that he had ingested a lethal dose of

fentanyl the night he died.

The Washtenaw County Sheriff’s Department (“WCSD”) investigated Todd’s death.

Todd’s girlfriend told WCSD detectives that Todd had likely gotten the drugs that he used the

night he died from Christian Raphalides. The complaint alleges that Raphalides provided the

same “China White” drug to a student at the University of Michigan in September 1998, more

than a year before Todd’s death. That student also died from an overdose, although the police

investigating the student’s death reported that he had overdosed on cocaine, not fentanyl.

1

To avoid confusion with Plaintiffs, who are Todd Kerchen’s family members, we will refer to him as

“Todd.”

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 3

Although the City of Ann Arbor Police Department investigated Raphalides in connection with

this earlier death, the Washtenaw prosecutors declined to charge Raphalides.

The complaint alleges that Raphalides obtained the fentanyl that killed Todd from a

University of Michigan pharmacology lab where Raphalides worked until November 1999. This

lab tested the effects of controlled substances on animals. At the lab, Raphalides had access to

multiple controlled substances, including fentanyl in powder form. Throughout Raphalides’

employment, Defendant Dr. James Woods led and oversaw the lab.

WCSD detectives interviewed Woods twice in connection with the investigation into

Todd’s death. In those interviews, Woods gave the detectives a detailed account of how the lab

distributed and monitored the controlled substances it used. The lab kept thousands of different

types of controlled substances on hand. These substances were kept in a locked safe for 22 hours

each day. For two hours a day—one hour in the morning and one hour in the afternoon—

employees could remove the drugs they needed for their work from the unlocked safe.

Employees weighed the amount of drugs that they needed and wrote down the type and quantity

of the drugs that they removed. “Ordinarily,” Woods or his assistant would oversee these hour-

long processes, “[b]ut not always.” Id. at Page ID #20.

In interviews with WCSD detectives concerning Todd’s death, Woods acknowledged that

it would be “common” for employees to keep controlled substances in their lockers at the lab.

Id. Indeed, Woods led the detectives to Raphalides’ locker, where they discovered 28 vials of

PCP, morphine, and other drugs. No one had opened the locker since Raphalides left the lab

almost four months earlier. The complaint also describes certain policies that the lab failed to

implement to safely manage the distribution of controlled substances. For example, the

complaint alleges that the lab did not take a regular inventory of the drugs removed from the

safe, and did not have a procedure in place to reconcile the amount of drugs removed from the

safe with the type and quantity of drugs used in procedures in the lab.

The complaint further alleges multiple facts supporting the conclusion that the fentanyl

that killed Todd came from the University of Michigan lab. For example, it alleges that the glass

vial containing white powder found on Todd’s coffee table after his death resembled the glass

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 4

vials containing drugs used by the lab. Specifically, all the vials had a rubber stopper with an

aluminum clasp over the stopper. When WCSD detectives showed Woods a photo of the glass

vial found on Todd’s coffee table, he confirmed that the vial was “exactly” the same as one they

would use in the lab. Id. at Page ID #18.

To be sure, Woods also told the detectives that these types of glass vials would be

common in any research lab. However, the complaint alleges that specific labeling on the vial

found at Todd’s home further indicated that the fentanyl that killed him came from the

University of Michigan lab. The lab employed a unique labeling procedure whereby employees

would write the drug name, the date it was logged out of the safe, and the employee’s initials on

the aluminum clasp. The clasp found at Todd’s home listed the date “6-2-94,” the abbreviation

“Fent. 100.56mg,” and the initials “DJ.” Id. at Page ID #21. Woods told the detectives that the

initials “DJ” belonged to David Jewett, a former employee of the lab who supervised Raphalides.

Id. According to the lab’s logs, on June 2, 1994—the date listed on the vial found in Todd’s

home—Jewett logged out 100.4 milligrams of fentanyl.2 Woods also confirmed that the fentanyl

found in Todd’s home had the same molecular structure as the fentanyl used in the lab.

The complaint alleges that the investigation into Todd’s death stalled after WCSD

detectives’ second interview with Woods. Although the detectives attempted to contact

Raphalides, they were unable to locate him. The detectives never informed the Kerchen family

about their conversations with Woods, or the facts that indicated that the fentanyl that killed

Todd could have originated from the University of Michigan lab. Heather Kerchen, Todd’s

sister, discovered the connection between the University lab and the investigation into Todd’s

death only after independently investigating Todd’s death herself. She did not receive

documents detailing the detectives’ conversations with Woods until October 19, 2020.

B. Procedural History

Based on the facts above, Plaintiffs filed a complaint on October 17, 2022 against

Raphalides, the University, Woods, and other unknown Defendants, listed as “Unknown Does.”

2

This is 0.16 milligrams fewer than the amount listed on the vial found in Todd’s home; but, as the

complaint alleges, the lab had no procedure in place to ensure that the amount of drugs withdrawn from the safe

matched the amount logged.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 5

Compl., R. 1, Page ID #1. Plaintiffs sued both Raphalides and Woods in their individual and

official capacities.3 Plaintiffs alleged six independent counts against all Defendants. First, they

asserted a Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983,

alleging that the Defendants deprived Todd of his life. They alleged that the University and

Woods’ lax policies surrounding the use of controlled substances in the lab and Raphalides’

exploitation of these lax policies “shocked the conscience.” Compl., R. 1, Page ID #29. Second,

Plaintiffs asserted a wrongful death claim under Michigan state law against all Defendants.

See M.C.L. § 600.2922. Finally, Plaintiffs asserted multiple counts under Michigan’s Drug

Dealer Liability Act (“DDLA”), which creates a civil cause of action for injuries caused by

illegal drug use. See M.C.L. § 691.1601(2).

The University and Woods moved to dismiss the complaint pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure. They primarily argued that all claims

against them were barred by the statutes of limitations because Todd died more than twenty

years before Plaintiffs filed their complaint. They further argued that the complaint had not

sufficiently alleged any fraudulent concealment of facts by Defendants that may permit equitable

tolling of the statutes of limitations. Defendants also contended that they were immune from suit

under certain claims based on various theories of immunity. Specifically, they argued that the

University and Woods in his official capacity were entitled to sovereign immunity for all claims,

and that Woods in his individual capacity was entitled to qualified immunity for Plaintiffs’

§ 1983 claims and governmental immunity for Plaintiffs’ state law wrongful death claim.

Finally, they argued that Plaintiffs had failed to state a claim for relief under the Michigan

DDLA.

In supplemental briefing supporting their motion to dismiss, Defendants presented a

second ground to dismiss the state law claims asserted against the University and Woods in his

official capacity. They argued that Plaintiffs’ failure to give notice to the state of Michigan

before filing suit required dismissal of these claims. Michigan law requires a party bringing a

personal injury claim against the state to provide notice of the suit within six months of the

3

Although a summons has been issued for Raphalides, he has not appeared in this lawsuit, and he is not a

party to this appeal.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 6

action’s accrual. See M.C.L. § 600.6431(1), (4). Previously, a panel of the Michigan Court of

Appeals held that this statutory notice requirement only applied to cases brought against the state

in the Michigan Court of Claims. See Tyrrell v. Univ. of Mich., 966 N.W.2d 219, 228 (Mich. Ct.

App. 2020). In two cases decided after Defendants filed their motion to dismiss, however, the

Michigan Supreme Court held that this notice requirement applied to all cases brought against

the state, which Defendants argued included cases brought in federal court. See Christie

v. Wayne State Univ., 993 N.W.2d 203, 209 (Mich. 2023); Elia Cos. v. Univ. of Mich. Regents,

993 N.W.2d 392, 395 (Mich. 2023).

The district court declined to dismiss Plaintiffs’ state law claims asserted against the

University and Woods in his official capacity for failure to comply with the statutory notice

requirement. It reasoned that the two new cases decided by the Michigan Supreme Court did not

retroactively bar lawsuits filed before the cases were decided. The district court also ordered

limited discovery on whether Defendants fraudulently concealed information from Plaintiffs

such that Plaintiffs could benefit from equitable tolling. The district court otherwise denied the

motion to dismiss without prejudice and did not rule on any other arguments raised by

Defendants in their motion to dismiss, including Defendants’ immunity arguments. Defendants

timely filed an interlocutory appeal from the district court’s denial of the motion to dismiss.

II. DISCUSSION

A. Jurisdiction

We may only review “final decisions” from district courts, which generally do not

include the decision to deny a motion to dismiss. 28 U.S.C. § 1291. Nevertheless, a denial of

sovereign or qualified immunity that turns purely on issues of law is a collateral order that

constitutes an appealable “final decision.” Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985);

see also P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).

A denial of immunity at the motion to dismiss stage presents a pure question of law. Ashcroft

v. Iqbal, 556 U.S. 662, 672 (2009).

In this case, although the district court did not address the merits of Defendants’

sovereign or qualified immunity defenses, its decision to deny the motion to dismiss and order

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 7

subsequent discovery constitutes a collateral order over which this Court has jurisdiction.

See Skousen v. Brighton High Sch., 305 F.3d 520, 525–26 (6th Cir. 2002) (finding jurisdiction to

review denial of qualified immunity when district court denied a motion for summary judgment

without prejudice and ordered discovery); Summers v. Leis, 368 F.3d 881, 886–87 (6th Cir.

2004) (same); see also Smith v. Leis, 407 F. App’x 918, 926 n.6 (6th Cir. 2011) (applying the

same logic to sovereign immunity).

Although we have jurisdiction to review Defendants’ arguments that they are entitled to

sovereign and qualified immunity, our jurisdiction to review the other issues raised in this appeal

is less clear. Defendants ask us to exercise pendent appellate jurisdiction over three other issues,

namely: (1) whether Michigan governmental immunity requires dismissal of Plaintiffs’ state law

wrongful death claim against Woods in his individual capacity; (2) whether Michigan’s statutory

notice requirement requires dismissal of all state law claims against the University and Woods in

his official capacity; and (3) whether all claims are time barred by the respective statutes of

limitations.

In its discretion, this Court may exercise pendent jurisdiction over claims that are

“inextricably intertwined” with matters over which the Court has appellate jurisdiction. Williams

v. Maurer, 9 F.4th 416, 428 (6th Cir. 2021) (citation omitted). Issues in an appeal “are not

‘inextricably intertwined’ merely because they ‘overlap in some respects.’” Id. at 429 (quoting

Crockett v. Cumberland Coll., 316 F.3d 571, 579 (6th Cir. 2003)). Instead, pendent jurisdiction

is proper only “when the appellate resolution of the collateral appeal necessarily resolves the

pendent claim as well.” Crockett, 316 F.3d at 579 (emphasis in original) (quoting Moore v. City

of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)). “The ‘inextricably intertwined’ requirement

of pendent appellate jurisdiction is not meant to be loosely applied as a matter of discretion.”

Chambers v. Ohio Dep’t of Hum. Servs., 145 F.3d 793, 797 (6th Cir. 1998). Rather, the

discretion granted to this Court in exercising pendent jurisdiction is the ability to decline to hear

claims even when they are inextricably intertwined with appealable issues. Archie v. Lanier,

95 F.3d 438, 443 (6th Cir. 1996).

Plaintiffs do not oppose Defendants’ jurisdictional arguments. But we have an

independent obligation to assure ourselves of our own jurisdiction. See Bonner v. Perry, 564

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 8

F.3d 424, 426 (6th Cir. 2009). Defendants are correct that we have jurisdiction over their claim

of governmental immunity and over Defendants’ statutory notice arguments, although not under

the doctrine of pendent appellate jurisdiction as neither presents an issue “inextricably

intertwined” with Defendants’ federal immunity arguments. Williams, 9 F.4th at 428. Instead,

for the reasons discussed below, we have independent jurisdiction to review the district court’s

decision on these claims as denials of immunity under Michigan law. Defendants are incorrect

that we may exercise pendent jurisdiction over their statutes of limitations arguments.

Defendants claim that Woods in his individual capacity is entitled to governmental

immunity under M.C.L. § 691.1407. We have held that a denial of governmental immunity

under M.C.L. § 691.1407 is immediately appealable as a final order. See Smith v. County of

Lenawee, 600 F.3d 686, 689 (6th Cir. 2010). Accordingly, we have jurisdiction to review this

claim because, in denying the motion to dismiss, which raised Woods’ entitlement to

governmental immunity, the district court implicitly denied Woods this immunity.

For similar reasons, we also have jurisdiction over Defendants’ arguments that Plaintiffs

failed to comply with the statutory notice requirements set forth in M.C.L. § 600.6431. The

Michigan Supreme Court has held that the failure to comply with the statutory notice provision

means that a state agency, such as the University of Michigan, or a state employee, such as

Woods, remains entitled to governmental immunity. See Fairley v. Dep’t of Corr., 871 N.W.2d

129, 133 (Mich. 2015). And we have long held that we have jurisdiction to review the denial of

Michigan governmental immunity. Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 408 (6th

Cir. 2007). Because, if applicable, Plaintiffs’ failure to comply with the statutory notice

requirement would mean that the University and Woods in his official capacity are entitled to

governmental immunity, we have jurisdiction to review the district court’s denial of the motion

to dismiss on this ground.

We do not, however, have jurisdiction to review Defendants’ statutes of limitations

arguments because they are not inextricably intertwined with the reviewable issues on appeal.

The parties dispute whether Plaintiffs are entitled to equitable tolling of the statutes of

limitations. Their arguments focus on whether Plaintiffs have sufficiently pleaded that any

Defendants fraudulently concealed information from Plaintiffs. This dispute has no conceivable

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 9

overlap with the properly reviewable issues on appeal, and we do not have pendent jurisdiction

over these claims.

Defendants do not meaningfully argue that the statutes of limitations arguments have any

relationship to the reviewable issues on appeal. Instead, they—and Plaintiffs—emphasize that

we should exercise pendent jurisdiction for the sake of judicial economy. Defendants cite to

one case from this Court, which, when exercising pendent jurisdiction, stated that “judicial

economy would counsel hearing these two issues together.” O’Bryan v. Holy See, 556 F.3d 361,

377 n.7 (6th Cir. 2009). But in that case, the Court chose to exercise pendent jurisdiction over an

issue on which the reviewable issue “hinge[d].” Id. It did not extend the doctrine of pendent

jurisdiction to permit this Court to hear claims primarily in the interest of judicial economy.

Because Defendants’ arguments relating to the statutes of limitations are not inextricably

intertwined with reviewable issues, we may not consider them in this appeal.

B. Standard of Review

This Court reviews a district court’s denial of a motion to dismiss de novo. Marvaso

v. Sanchez, 971 F.3d 599, 605 (6th Cir. 2020). “In reviewing the motion to dismiss, we construe

the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual

allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.”

Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).

C. Federal Claims

On appeal, Defendants argue that the district court erred in denying sovereign immunity

to the University and Woods in his official capacity, and qualified immunity to Woods in his

individual capacity. As an initial matter, the district court should have ruled on Defendants’

immunity defenses before ordering discovery. The district court relied on this Court’s decision

in Nair v. Oakland County Community Mental Health Authority to defer ruling on Defendants’

sovereign immunity arguments until after limited discovery, but this reliance was misplaced.

443 F.3d 469, 476 (6th Cir. 2006). Nair did not hold that a district court could avoid ruling on a

sovereign immunity defense and proceed to order discovery. Instead, it held that a district court

could choose to dismiss a case based on the merits if the defendants present sovereign immunity

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 10

as an alternative argument and if the merits present a more expeditious method for dismissing the

case entirely. Id. at 476–77.

For Nair to hold otherwise would contradict the multiple other times that this Court has

treated sovereign immunity as a jurisdictional issue. See, e.g., Haines v. Fed. Motor Carrier

Safety Admin., 814 F.3d 417, 425 (6th Cir. 2016). It would also contradict the longstanding

principle that sovereign immunity protects a state’s dignity interests in avoiding not just ultimate

liability, but litigating a suit itself. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 145; see also

Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 949 (6th Cir. 2006) (“[R]equiring a State to

appear in federal court and undergo trial when it is entitled to sovereign immunity (even if it is

later shielded on the merits) harms the State’s dignitary interests.”). A state loses

the “fundamental” protection offered by the Eleventh Amendment at each step that litigation

proceeds without deciding whether a state is entitled to sovereign immunity. P.R. Aqueduct

& Sewer Auth., 506 U.S. at 145. To vindicate states’ dignity interests implicated by their

sovereign immunity to suit, district courts must issue a ruling on properly raised sovereign

immunity defenses—even if raised as an alternative defense—before permitting litigation to

proceed.

The district court also deferred its ruling on qualified immunity. It found that qualified

immunity does not affect the district court’s subject matter jurisdiction, and that it could

therefore defer ruling on this defense as well. However, this Court has long held that district

courts may not avoid ruling on the merits of a qualified immunity defense and permit litigation to

proceed further. See Skousen, 305 F.3d at 527; see also Myers v. City of Centerville, 41 F.4th

746, 758 (6th Cir. 2022). Similar to sovereign immunity, a decision on qualified immunity at the

earliest possible stage of litigation is necessary to vindicate its protection against litigation itself.

See Skousen, 305 F.3d at 526–27. Thus, the district court also erred in failing to address

Defendants’ qualified immunity defense before ordering limited discovery. Upon an

independent review of the record, however, we find that the University and Woods in his official

capacity are entitled to sovereign immunity, and that Woods in his individual capacity is entitled

to qualified immunity.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 11

1. Sovereign Immunity

Defendants argue that Eleventh Amendment sovereign immunity requires dismissal of all

claims made against the University of Michigan and Woods in his official capacity. The

Eleventh Amendment states that “The Judicial power of the United States shall not be construed

to extend to any suit in law or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. This forbids a plaintiff from suing a state, a state agent, or a state instrumentality for

monetary damages in federal court unless that state has consented to suit, or unless Congress has

clearly and expressly abrogated the state’s immunity to suit. See Regents of the Univ. of Cal.

v. Doe, 519 U.S. 425, 429 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

120–21 (1984); Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir.

2016).

Plaintiffs only seek monetary damages from Defendants, implicating the Eleventh

Amendment’s bar to suit. The University of Michigan is a state agency entitled to claim

Eleventh Amendment immunity. See Ashford v. Univ. of Mich., 89 F.4th 960, 969 (6th Cir.

2024). And as an employee of the University, all claims against Woods in his official capacity

are construed as asserted against Michigan itself. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989). Moreover, Congress has not abrogated Michigan’s immunity to suit

under § 1983 claims. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Thus, unless Michigan

consented to suit in federal court in this matter or on these claims, the University and Woods in

his official capacity are entitled to sovereign immunity.

On appeal, Plaintiffs only argue that Michigan has waived its sovereign immunity in this

litigation because the University has chosen to represent Woods in his individual capacity.

Plaintiffs’ admittedly “novel” argument is that this Court should infer that the Eleventh

Amendment permits this type of waiver based on a Supreme Court case addressing an Indian

tribe’s sovereign immunity. Pl.’s Br., ECF No. 24, 22. Specifically, in Lewis v. Clarke, the

Supreme Court considered whether an individual sued in his personal capacity could benefit

from his tribe’s sovereign immunity because the tribe was required by law to indemnify him for

the accident at issue. 581 U.S. 155, 157–58, 160 (2017). The Court found that this relationship

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 12

did not transform the suit against him in his individual capacity into one against the tribe because

“[t]he critical inquiry is who may be legally bound by the court’s adverse judgment, not who will

ultimately pick up the tab.” Id. at 165.

Plaintiffs argue that this Court should make a logical leap from Lewis’s holding to find

that Michigan has waived its sovereign immunity in this case. Lewis held that a tribe’s mandated

indemnification of an individual did not mean that the individual could benefit from tribal

immunity. Plaintiffs argue that, in this case, Lewis means that Michigan’s representation of

Woods in his individual capacity means that Michigan cannot benefit from sovereign immunity.

In essence, Plaintiffs take from Lewis the rule, “if indemnification, then no immunity,” and ask

the Court to apply this rule to this case. Not only is this an unsupported logical jump from

Lewis’s holding, but it is contradicted by Lewis itself. Lewis found that the defendant could not

benefit from tribal immunity because it would ultimately be the individual defendant, not the

tribe, held legally responsible if plaintiffs were successful in their suit. Id. By contrast, in this

case, if Plaintiffs are successful in the merits of their claims against the University and Woods in

his official capacity, Michigan will be held responsible and “legally bound by the . . . judgment,”

squarely implicating the core protection of sovereign immunity.4 Id.

Moreover, Michigan has not waived its sovereign immunity through its other conduct in

this litigation. A state may waive its sovereign immunity through litigation conduct, but its

intent to do so must be “clear.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,

620 (2002). Michigan has made no such clear indication; to the contrary, it has only filed a

motion to dismiss, which explicitly raised sovereign immunity as a defense. This alone

is enough to find that Michigan did not waive its sovereign immunity defense. See Puckett,

833 F.3d at 598 n.1 (“The Commonwealth did not file an answer but rather raised the immunity

defense in its motion to dismiss. That was sufficient to defeat any argument that the immunity

issue had been waived.”).

4

Plaintiffs’ argument has a second flaw: Michigan has not indicated that it will indemnify Woods in his

individual capacity. It has only chosen to provide him with representation by the same attorneys who represent the

University and Woods in his official capacity.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 13

Plaintiffs only request monetary damages, and the University and Woods in his official

capacity are treated as the State of Michigan for purposes of this litigation. Moreover, contrary

to Plaintiffs’ attempt to show otherwise, Michigan has not waived its sovereign immunity in this

litigation either by representing Woods in his individual capacity or by any other litigation

conduct. Therefore, all claims against the University and Woods in his official capacity are

barred by Eleventh Amendment sovereign immunity.

2. Qualified Immunity

Defendants also argue that qualified immunity bars Plaintiffs’ substantive due process

claim under § 1983 against Woods in his individual capacity. Qualified immunity immunizes

government officials from suit to the extent that their conduct does not violate clearly established

law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs bear the burden of showing that

a government official is not entitled to qualified immunity. Cahoo v. SAS Analytics Inc.,

912 F.3d 887, 898 (6th Cir. 2019). At the motion to dismiss stage, this means that a plaintiff

must plausibly allege facts showing “(1) that the official violated a statutory or constitutional

right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). Although

qualified immunity may generally be better resolved on a motion for summary judgment rather

than a motion to dismiss, a plaintiff must still sufficiently plead facts to show a clearly

established constitutional violation. See Myers, 41 F.4th at 758–59.

The Due Process Clause of the Fourteenth Amendment protects citizens from

government deprivation of “life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. As opposed to procedural due process, “[s]ubstantive 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) (second alteration in original) (quoting Pearson v. City of Grand Blanc,

961 F.2d 1211, 1216 (6th Cir. 1992)). Substantive due process prohibits behavior from state

actors that “shock[s] the conscience” and protects those “interests that the Supreme Court has

found so rooted in the traditions and conscience of our people as to be fundamental.” Bell

v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003) (citations omitted). It also protects

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 14

individuals against deprivations based on “arbitrary and capricious” action, “another

formulation” of the “shocks the conscience” standard. Bowers v. City of Flint, 325 F.3d 758,

763 (6th Cir. 2003).

Plaintiffs allege that Woods engaged in conscience-shocking behavior by overseeing and

implementing the University lab’s “lax policies surrounding lethal controlled substances,” and

that this lax administration deprived Todd of his life. Compl., R. 1, Page ID #32. Plaintiffs have

plausibly pleaded the deprivation of a protectable interest under the Constitution, as Todd’s

death plainly constitutes a deprivation of life. See McQueen v. Beecher Cmty. Sch., 433 F.3d

460, 463 (6th Cir. 2006). The central question, therefore, is whether Woods’ alleged role in this

deprivation amounted to conscience-shocking behavior.

The principles enumerated in Rochin v. California, 342 U.S. 165 (1952) provide the

“benchmark” for what shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833,

847 (1998). In Rochin, police pumped a suspect’s stomach to obtain pills as evidence for

prosecution. Rochin, 342 U.S. at 166. The Supreme Court found that this behavior “shock[ed]

the conscience” because it was “so brutal and so offensive to human dignity” that it violated the

“decencies of civilized conduct,” and, thus, violated the Constitution. Id. at 172–74. These are

no doubt largely subjective standards that amount to “no calibrated yard stick.” Lewis, 523 U.S.

at 847. At base, however, courts have emphasized that the “shocks the conscience” standard

does not impose constitutional liability on all state actors who simply cause harm, nor does it

“purport to supplant traditional tort law in laying down rules of conduct to regulate liability for

injuries that attend living together in society.” Daniels v. Williams, 474 U.S. 327, 332 (1986);

see also Lewis, 523 U.S. at 848. Instead, it “sets a high bar” and only penalizes government

actions that offend “traditional ideas of fair play and decency” such that they violate the

Constitution. Range, 763 F.3d at 589–90 (citation omitted).

In an effort to map on some commonly understood principles to this “more fluid”

constitutional doctrine, the Supreme Court has analogized potentially conscience-shocking

behaviors to the standards governing generalized tort law. Lewis, 523 U.S. at 848–50 (citation

omitted). Governmental behavior is “most likely to rise to the conscience-shocking level” when

it is “intended to injure in some way unjustifiable by any government interest.” Id. at 849. By

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 15

contrast, “liability for negligently inflicted harm is categorically beneath the threshold of

constitutional due process.” Id. “[C]loser calls” are presented by middle-of-the-spectrum

culpability levels, such as recklessness or gross negligence. Id. Deliberate indifference can also

form the basis for a “shocks the conscience” claim. Id. at 850. Actions taken in these middle

stages of culpability “may or may not be shocking depending on context.” Hunt v. Sycamore

Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir. 2008).

Plaintiffs admit that Woods did not take intentional action to cause Todd’s death.

Instead, they argue that his laxity in ensuring the proper distribution of controlled substances in

the lab was reckless and deliberately indifferent to the harm that this lack of supervision may

cause. Thus, the only way that Plaintiffs may prevail on their due process claim is to allege

sufficient facts to show that Woods’ administration of the lab was so deliberately indifferent or

reckless that it shocked the conscience.

“Deliberate indifference in the constitutional sense requires that the officials knew of

facts from which they could infer a ‘substantial risk of serious harm,’” and “that they did infer

it.” Range, 763 F.3d at 591 (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir.

2002)). It then requires the officials to have “act[ed] or fail[ed] to act in a manner demonstrating

‘reckless or callous indifference’ toward the individual’s rights.” Ewolski, 287 F.3d at

513 (citation omitted). In the substantive due process context, we have treated the deliberate

indifference analysis as akin to subjective recklessness. See Bukowski v. City of Akron, 326 F.3d

702, 710 (6th Cir. 2003).

To sufficiently allege that Woods inferred a “substantial risk of serious harm,” Plaintiffs

must allege that Woods knew both the “scope and substance” of the particular risk of harm at

issue. Range, 763 F.3d at 591 (citation omitted). This Court has repeatedly declined to define

the type of risk potentially contemplated by defendants at too high a level of generality. See,

e.g., Jane Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 934 (6th Cir. 2020) (“[A]

public official must know of more than a general risk of harm. The official must know of the

specific risk that later develops.” (emphasis in original)). For example, in Range, this Court

found that the supervisors of a county morgue employee who sexually abused corpses were not

deliberately indifferent in their supervision of the employee because they had no knowledge of

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 16

the specific risk the employee posed. Range, 763 F.3d at 578–79, 591. Although the supervisors

knew that the employee was drinking and having sex with live women at the morgue, this Court

found that there was no evidence that the knowledge of these facts could indicate that the

defendants knew of the substantial risk that the employee would then sexually abuse corpses. Id.

Similarly, in McQueen, after one student killed his classmate, the Court declined to

impose due process liability on the teacher who left the students in the classroom together.

433 F.3d at 462–63, 469–70. Although the teacher had known that the student who killed his

classmate had previously attacked other classmates with a pencil, this Court found that this

previous behavior did not show that the teacher had a subjective knowledge of the risk that the

student would use a gun to kill his classmate. Id. at 469–70; see also Jackson Loc. Sch. Dist. Bd.

of Educ., 954 F.3d at 935 (finding that a teacher could not subjectively know that student who

had lit matches on the bus was at risk of sexually assaulting another student).

In this case, the complaint alleges that the lab had procedures in place to restrict

employees’ access to the many controlled substances present in the lab. Thus, the complaint

plausibly indicates that Woods, by implementing these procedures, knew that the unauthorized

and unrestricted access to controlled substances could pose some risk, and that this risk could

include these substances being abused. The complaint, however, does not allege that Woods had

any knowledge that would lead him to believe that one of his employees intended to remove

some of the controlled substances from the lab to distribute to the wider community. Although it

alleges that, in September 1998, Raphalides provided “China White” to another individual, it

does not allege that Raphalides obtained this drug from the lab. Compl., R. 1, Page ID #14.

More importantly, it does not allege that Woods had any knowledge of this overdose or

Raphalides’ alleged involvement with it. Because the complaint does not plausibly allege that

Woods had knowledge of the risk that Raphalides would remove drugs from the lab, it has not

sufficiently pleaded a violation of substantive due process.

Even if the risk known by Woods could be defined at a higher level of generality, such as

the risk that any lab employee could remove drugs from the lab to distribute in the community,

Woods’ actions do not amount to conscience-shocking behavior. The complaint alleges that the

following actions or omissions by Woods shocked the conscience. First, during the twice-daily,

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 17

one-hour blocks in which Woods opened the safe containing the controlled substances, Woods or

his assistant “[o]rdinarily” would oversee the distribution of controlled substances, “[b]ut not

always.” Compl., R. 1, Page ID #20. Outside of this occasional lapse in policy, the complaint

more generally alleges that the lab did not affirmatively take other actions to properly ensure the

safe distribution of the controlled substances in the lab.5

In all, Plaintiffs allege that Woods did not “always” follow the lab’s plan to ensure a safe

distribution of the drugs, and that he did not implement any additional procedures to ensure the

drugs remained in the lab. Id. This behavior sounds in negligence, rather than the type of

“callous disregard for the safety” of the community that we have held is necessary to show a due

process violation. Ewolski, 287 F.3d at 514; see also Jackson Loc. Sch. Dist. Bd. of Educ.,

954 F.3d at 936 (“At most, however, the failure to take these additional precautions suggests

negligence, which falls well short of establishing the required ‘callous disregard for the safety’ of

Minor Doe.” (citation omitted)). Thus, because the complaint does not plausibly allege either

that Woods knew of the substantial risk that Raphalides would take drugs out of the lab, or that

Woods’ actions amounted to conscience-shocking behavior, Plaintiffs have failed to plausibly

allege that Woods violated Todd’s substantive due process rights. Accordingly, Woods is

entitled to qualified immunity.

D. State Claims

Defendants raise three other issues on appeal that concern Michigan law. First, the

parties debate whether Plaintiffs’ claims are barred by the relative statutes of limitations, as

defined by Michigan law, and specifically whether Plaintiffs have adequately pleaded facts that

could permit Plaintiffs to evade the statutes of limitations for their claims based on a theory of

fraudulent concealment. As stated, we do not have jurisdiction to review the parties’ arguments

relating to fraudulent concealment and its impact on the statutes of limitations.

Second, the parties spend a significant portion of their briefs discussing whether

Plaintiffs’ claims are barred by Michigan’s statutory notice provision that requires a plaintiff

5

For example, the complaint alleges that there were no procedures employed to reconcile the amount of

drugs taken from the safe with those used in the lab, and no regular inventorying of the drugs that had been removed

from the safe. Further, there were no procedures in place to ensure that the drugs remained in the lab.

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 18

suing the state to give notice within a certain period of time before filing suit. Defendants,

however, concede that even if we were to agree with their arguments on this point, this would

only require dismissal of the state law claims against the University and Woods in his official

capacity. Because the state law claims against these Defendants are barred by sovereign

immunity just as the federal claims are barred, Pennhurst, 465 U.S. at 120–21, we need not

decide whether Plaintiffs’ admitted failure to comply with this statutory notice provision also

bars these claims.

Finally, Defendants argue that Woods in his individual capacity is entitled to

governmental immunity under Michigan law for Plaintiffs’ wrongful death claim. But Plaintiffs

have failed to address this argument in their appellate briefing, and have therefore

abandoned appellate review of any arguments they may have had in response. See Puckett, 833

F.3d at 610–11. Even if Plaintiffs had not abandoned their arguments on this claim, however, we

would find that Woods is entitled to governmental immunity. Michigan law immunizes a

government employee from tort liability when that employee performs a governmental function

within the scope of his authority and when his “conduct does not amount to gross negligence that

is the proximate cause of the injury or damage.” M.C.L. § 691.1407(2)(c). Defendants argue

that because Plaintiffs have not alleged facts showing that Woods was either grossly negligent or

the proximate cause of Todd’s death, Woods is entitled to governmental immunity under M.C.L.

§ 691.1407.

Michigan’s standard of gross negligence is slightly lower than the federal Constitution’s

standard for deliberate indifference, and, thus, the analysis of Woods’ culpability as to the § 1983

substantive due process claim does not apply with equal force. See Reilly v. Vadlamudi,

680 F.3d 617, 627 (6th Cir. 2012). Regardless of whether Woods’ conduct reached this lower

level of culpability, Defendants are correct that the complaint does not plausibly allege that

Woods’ actions were “the proximate cause” of Todd’s death as that phrase has been understood

by Michigan courts. The Michigan Supreme Court has interpreted the use of the article “the”

preceding “proximate cause” in M.C.L. § 691.1407(2)(c) to mean that a defendant’s actions must

be “the one most immediate, efficient, and direct cause of the injury or damage, i.e., the

No. 23-1718 Kerchen, et al. v. Univ. of Mich., et al. Page 19

proximate cause.” Robinson v. City of Detroit, 613 N.W.2d 307, 319 (Mich. 2000) (emphasis

added).

In this case, Raphalides’ choice to remove the fentanyl from the lab, even if it was not the

most direct cause of Todd’s death, was a sufficient intervening cause such that the “most

immediate” cause of Todd’s death was not Woods’ administration of the lab. See id. at 312–13,

319 (finding that the proximate cause of the death of a driver and a passenger in cars fleeing

from police were the drivers of the car, not the police); see also Jasinski v. Tyler, 729 F.3d 531,

537, 545 (6th Cir. 2013) (finding child protective services employees were entitled to

governmental immunity under M.C.L. § 691.1407 because a father’s abuse, not their lack of

investigation, was the proximate cause of a child’s death). Thus, even if Plaintiffs had not

abandoned any arguments on this issue, Defendants are correct that Plaintiffs’ wrongful death

claim against Woods in his individual capacity should be dismissed as barred by governmental

immunity.

III. CONCLUSION

For the reasons stated above, we REVERSE the district court’s denial of Defendants’

motion to dismiss and REMAND with instructions to: (1) dismiss all claims against the

University and Woods in his official capacity as barred by sovereign immunity; (2) dismiss the

§ 1983 claim against Woods in his individual capacity as barred by qualified immunity; and

(3) dismiss the wrongful death claim against Woods in his individual capacity as barred by

governmental immunity. We DISMISS the remainder of Defendants’ appeal for lack of

jurisdiction.