# Petition for Writ of Certiorari — Lochman v. County of Charlevoix

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1112

## Text

(\) FILED
\ 96 882 DEC 219%

geFice Ut iE CLERK

In The

Supreme Court of the United States
October Term, 1996

4

CARL LOCHMAN; ELAINE LOCHMAN,
individually and on behalf of
KELLI LOCHMAN AND KYLE LOCHMAN,

Petitioners,
Vs.

COUNTY OF CHARLEVOIX, Jointly and Severally;
and PHILO SUMNER, Jointly and Severally,

Respondents.

.

Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

*

Submitted by:

FRANK G. Becker & Associates, P.C.
by: Frank G. Becker (P-25502)
Attorney for Petitioners
18501 West Ten Mile Road
Southfield, Michigan 48075-2663
810/569-4910

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does 42 U.S.C. § 1983, which is generally and pre-
sumptively available as a remedy for claimed violations
of federal statutory law, allows the petitioners to main-

tain this action based on a clear, unexcused violation of 33
U.S.C. § 403?

TABLE OF CONTENTS

Page
QUESTION PREGENT RD) ois 66 he RT ER i
CFP AEs RRAIES 0 v0 0005 Fh ne 0b 00s pewes ba S55 ewe 1
PEs BGG 8 oko 9005 6 64 oN sR EwEE Deas bn thas 1
se ghee Bef 3 | 3 ere rrr ee ey yr 1
STATEMENT OF TRIS CAGE, oo vccceccsverccversans 3
REASONS FOR GRANTING THE WRIT ........... 7

42 U.S.C. § 1983, which is generally and presump-
tively available as a remedy for claimed violations
of federal statutory law, allows the petitioners to
maintain this action based on a clear, unexcused
viclation of 33 USC. § 466 is ccs vesesusc¥eeetes 7

CONGLUMION |. aie 14
SITU ook ic eee App. 1

iii

TABLE OF AUTHORITIES

Page
Cases
Audette v. Sullivan, 19 F.3d 254 (1994)............... 13
California v. Sierra Club, 451 U.S. 287, 101 S.Ct.
SP Ce ote eves ss vein ise cce bs G, 30, 31, 22, 13
Cort v. Ash, 422 U.S. 66, 955 S.Ct. 2080, 45 L.Ed.2d
a RMT ERE EERE SST A gue a ea a 9, 12
Horn v. Madison County Fiscal Court, 22 F.3d 653
cs vee oc OoeE Mc vba is 12
Livadas v. Bradshaw, 512 U.S. __, 114 S.Ct. 2083,
hic v's Su bubs Kad Wadevsccovs 9
Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65
SE oh 0's ohke bcc takebaancnccous os 7
Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478
U.S. 204, 106 S.Ct. 3229 n.9, 92 L.Ed.2d 650
SR a Se hs Cure Viban tc 05s nap vist Wicelar deeens 0 12
Norfolk & Western Co. v. United States of America,
re ee OE OO OE, RUIN vec cccsviiccnccvcese 12
Wilder v. Virginia Hospital Assn., 496 U.S. 498, 110
S.Ct. 2510, 110 L.Ed.2d 455 (1990) .............. 7, 10
Wood v. Thompkins, 33 F.3d 600 (6th Cir. 1994)....... 13
STATUTES
Se Es winks canvases diws ivaaevins i, 7, 9%, 18, 13

We ae BS ot us vince n'a nein Sabeneexcach passim

PETITION FOR WRIT OF CERTIORARI

Petitioners respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the United
States Court of Appeals for the Sixth Circuit entered in
this proceeding on September 3, 1996 in order to redress
the clear error of the lower courts.

¢

OPINIONS BELOW

The relevant opinion and orders are reproduced in
the Appendix beginning at p. 1a.

S

JURISDICTION

This Court’s jurisdiction is invoked pursuant to 28
U.S.C. § 1254(1).

This petition is filed within 90 days of the Court of
Appeals’ Opinion Affirming the District Court dated Sep-
tember 3, 1996.

STATUTES INVOLVED

This case involves 42 U.S.C. § 1983, which provides
in relevant part:

Every person who, under color of any stat-
ute, ordinance, regulation, custom or usage, of
any State or Territory or the District of Colum-
bia, subjects or causes to be subjected, any citi-
zen of the United States or other person within
the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action of law, suit in equity,
or other proper proceeding for redress.

by the Defendants provides as follows:

The creation of any obstruction not affirma-
tively authorized by Congress, to the navigable
capacity of any of the waters of the United
States is prohibited; and it shall not be lawful to
build or commence the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead,
jetty, or other structures in any port, roadstead,
haven, harbor, canal, navigable river, or other
water of the United States, outside established :
harbor lines, or where no harbor lines have been j
¢
f

33 U.S.C. § 403, the Federal Statute allegedly violated
f

established, except on plans recommended by
the Chief of Engineers and authorized by the
Secretary of the Army; and it shall not be lawful
to excavate or fill, or in any manner to alter or
modify the course, location, condition, or capac-
ity of, any port, roadstead, haven, harbor, canal,
lake, harbor of refuge, or inclosure within the
limits of any breakwater, or of the channel of
any navigable water of the United States, unless
the work has been recommended by the Chief of
Engineers and authorized by the Secretary of
the Army prior to beginning the same.

+

STATEMENT OF THE CASE

This case involves a tragic diving injury to twelve-
year-old Kelli Lochman. She suffered paralyzing injuries
when her head struck the lake bottom following a dive.
Whiting Park is a Charlevoix County, Michigan public
park located on Lake Charlevoix, a navigable waterway.
On July 9, 1993, the Defendant, Philo Sumner, who was
the Manager of Whiting Park and an executive policy
maker, moved the L-shaped diving dock from waters
which were at its deepest diving end over five (5') deep,
into more shallow waters near a sand bar, which were
approximately three and one-half (3'/2') feet deep. This
move was done without the required federal permit pur-
suant to 33 U.S.C. § 403, which requires approval by the
Army Corps of Engineers of any movement structures in
navigable waterways.

Pursuant to federal regulations, if a permit was
requesied, notice of a period of public comment would be
provided of the proposed obstruction to navigable waters
or movement of same, so that interested persons, such as
users of the dock, would be afforded a chance to express
their disapproval.

If the Army Corps of Engineers, based on the public
comment provided and their own analysis, determined
that members of the public may be harmed from an
unsafe diving dock, no permit would have been issued.

Petitioners adopt the “Factual Background” con-
tained in the District Court Opinion, or this Petition:

The facts upon which this decision is based are
undisputed. Whiting Park is a county park operated by

the County of Charlevoix. Defendant Philo Sumner is the
manager of Whiting Park, a position he has held since
approximately 1977. The park is open to the public free of
charge for use of the beach and recreational facilities. The
dock involved in the acident was built in 1977 or 1978 by
Mr. Sumner to replace an identical dock which had been
in place since the 1950’s. Each year, Mr. Sumner would
place the dock in relatively the same location where the
depth of the water was approximately five feet deep. The
dock was made up of twelve foot sections which locked
together. The dock was one hundred twenty feet long and
thirty five and one-half wide and was shaped like an “L”.

The Boyne City Swim School program, a community
swim program organized by parents of the community,
made use of the dock each year. Bardel Belford, the swim
program instructor, would contact Mr. Sumner at the
beginning of the summer to inform him when the dock
would be needed for the program. Except for the hours
when the swim classes were being conducted, the dock
was open for public use. Mr. Sumner stated that the dock
had been used for diving by both children and adults for
many years.

At the beginning of the 1993 swim season, Ms. Bel-
ford asked one of her students, Nissa Ryder, to enter the
water at the end of the dock to check the depth of the
water. In the original location of the dock, the water
measured approximately four and one half to five feet
deep, a level safe for diving.

On July 9, 1993, Belford arrived at the Park to con-
duct swim class and observed the dock being moved by
two employees of the Park. Mr. Sumner had requested

ee ae

° 200 srereqect

that the dock be moved because the beach was eroding
from the front of the dock, requiring people using the
dock to step from the beach into the water and onto the
dock. Upon seeing the dock moved, Ms. Belford voiced
her concern to Mr. Sumner that the water in the new
location would be too shallow for diving. Mr. Sumner
responded with his concern that having people step from
the water onto the dock would make the dock unneces-
sarily slippery.

Ms. Belford asked Nissa Ryder to check the depth of
the water at the end of the dock in the new location. Ms.
Belford determined that the water at the end of the dock
was too shallow for diving; the water only reached shoul-
der level on Nissa Ryder, who was approximately four
feet five inches tall. Mr. Belford indicated that she would
not have noticed that the dock had been moved had she
not seen the workers moving it. Ms. Belford informed Mr.
Sumner that the dock was no longer safe for diving in the
new location. She asked Mr. Sumner to either extend the
dock from the “L-shape” to a straight configuration into
deeper water, or to place a warning sign that the dock
had been moved. Mr. Sumner declined to do either. He
was concerned that people running on the dock with wet
feet might slip and injure themselves.

Mr. Sumner concedes that the depth of the Lake was
variable due to the presence of sand bars. Mr. Sumner
never made any study regarding the location of the dock
with regard to the location of the sand bars and failed to
check the depth at the end of the dock in its new location.
Mr. Sumner did not obtain permission from the Army
Corp of Engineers to place or move the dock in violation
of 33 U.S.C. § 403 of the Navigable Waters Act.

In the afternoon of July 9, 1993, Kelli Lochman, age
12, and her older brother Kyle were swimming at Whiting
Park. Kelli jumped or dove off from the dock and
allegedly struck her head on the lake bottom. Kelli sus-
tained a cervical spinal cord injury, rendering her a quad-
riplegic. The Lochmans had been to the Park in previous
years, but July 9 was the first day Kelli and Kyle had
gone swimming at the Park in 1993.

(pp. 16a-18a)

The Federal District Court ruled that no cause of
action was stated:

“Given that the Supreme Court in Sierra Club
explicitly determined that potentially harmed
plaintiffs were not the intended beneficiaries of
the statute, plaintiffs’ argument seems to be just
the result the Supreme Court rejected. This
Court does not believe that Congress or the
Supreme Court intended that any member of the
general public that is harmed in some way by a
structure on a navigable waterway becomes the
intended beneficiary of 33 U.S.C. Sec. 403.
Defendants’ motion for summary judgment on
Count I of plaintiffs’ complaint will, therefore,

be granted.

(p. 21a)

The Sixth Circuit Court of Appeals adopted this rea- |
soning in concluding the District Court was correct:

“Having conducted the required de novo review
of an order granting summary judgment, we
find that the plaintiffs failed to demonstrate the
existence of a genuine issue of material fact, and
that the Defendants were entitled to judgment '
as a matter of law. FED. R. CIV. P. 56(c).

Accordingly, the judgment of the district court is
AFFIRMED.”

(p. 14a)

This Petition timely follows from that published
Opinion.

REASONS FOR GRANTING THE WRIT

42 U.S.C. § 1983, which is generally and presumptively
available as a remedy for claimed violations of federal
statutory law, allows the petitioners to maintain this
action based on a clear, unexcused violation of 33 U.S.C.
§ 403.

In Maine v. Thiboulot, 448 U.S. 1, 100 S.Ct. 2502, 65
L.Ed.2d 555 (1980), this Court unequivocally accepted
what had been earlier implied that 42 U.S.C. § 1983 could
be used to bring an independent action for violation of
federal statutes. The United States Supreme Court relied
on the language “and laws” in upholding a cause of
action based on the Social Security Act.

In Wilder v. Virginia Hospital Assn., 496 U.S. 498, 110
S.Ct. 2510, 110 L.Ed.2d 455 (1990), this Court explained
the relevant test in determining whether a 42 U.S.C.
§ 1983 cause of action was stated for violation of federal
statutory rights.

Section 1983 provides a cause of action for “the
deprivation of any rights, privileges, or immu-
nities secured by the Constitution or laws” of
the United States. In Maine v. Thiboulot, supra,
we held that Section 1983 provides a cause of
action for violations of federal statutes as well

as the Constitution. We have recognized two
exceptions to this rule. A Plaintiff alleging a
violation of a federal statute will be permitted to
sue under Section 1983 unless (1) “the statute
[does] not create enforceable rights, privileges,
or immunities within the meaning of Section
1983,” or (2) “Congress has foreclosed such
enforcement of the statute in the enactment
itself.” Wright v. Roanoke Redevelopment and
Housing Authority, 479 U.S. 418, 423, 107 S.Ct.
766, 770, 93 L.Ed.2d 781 (1987). Petitioners argue
first that the Boren Amendment does not create
any “enforceable rights” and second, that Con-
gress had foreclosed enforcement of the action
under Section 1983. We address these conten-
tions in turn.

“Section 1983 speaks in terms of ‘rights’, privi-
leges, or immunities,’ not violations of federal
law.” Golden State Transit Corp v. Los Angeles, 493
U.S. 103, 106, 120 S.Ct. 444, 448, 107 L.Ed.2d 420
(1989) (emphasis added). We must therefore
determine whether the Boren Amendment cre-
ates a “federal right” that is enforceable under
Section 1983. Such an inquiry turns on whether
“the provision in question was intend[ed] to
benefit the putative Plaintiff.” Ibid. If so, the
provision creates an enforceable right unless it
reflects merely a “congressional preference” for
a certain kind of conduct rather than a binding
obligation on the governmental unit, Pennhurst
State School and Hospital v. Halderman, 451 U.S. 1,
19, 101 S.Ct. at 774). Under this test, we con-
clude that the Act creates a right enforceable by
health care providers under Section 1983 to the
adoption of reimbursement rates that are rea-
sonable and adequate to meet the costs of an
efficiently and economically operating facility

A NOU EER

EN EN ET Cem wee O

that provides care to Medicaid patients. The
right is not merely a procedural one that rates
be accompanied by findings and assurances
(however perfunctory) of reasonableness and
adequacy; rather the Act provides a substantive
right to reasonable and adequate rates as well.

(496 U.S. at 508-510, 110 S.Ct. at 2547-49)

More recently, in Livadas v. Bradshaw, 512 U.S. __, 114
S.Ct. 2083, 129 L.Ed.2d 93 (1994), the United States
Supreme Court indicated that “apart from exceptional
cases, Section 1983 remains a generally and presump-
tively available remedy for claimed violations of fed-
eral law.”

Of course, in determining whether a 42 U.S.C. § 1983
cause of action exists, the inquiry is different than deter-
mining whether a private right of action can be implied.
This separate test was not fully distinguished by the
lower courts:

This is a different inquiry than that involved
in determining whether a private right of
action can be implied from a particular statute.
See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45
L.Ed.2d 26 (1975). In implied right of action
cases, we employ the four-factor Cort test to
determine “whether Congress intended to create
the private remedy asserted” for the violation of
statutory rights. See Transamerican Mortgage
Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100
S.Ct. 242, 245-246, 62 L.Ed.2d 146 (1979); Touche
Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99
S.Ct. 2479, 2488-2489, 61 L.Ed.2d 82 (1979). The
test reflects a concern, grounded in separation
of powers, that Congress rather than the courts

10

controls the availability of remedies for viola-
tions of statutes. See e.g. Thompson v. Thompson,
484 U.S. 174, 191-192, 108 S.Ct. 513, 5-22-523, 98
L.Ed.2d 512 (1988); Cannon v. University of Chi-
cago, 441 U.S. 677, 742-749, 99 S.Ct. 1946,
1981-1985, 60 L.Ed.2d 560 (1979). Because Sec-
tion 1983 provides an “alternative source of
express Congressional authorization of private
suits,” Middlesex County Sewage Authority v.
National Sea Clammers Assn., 453 U.S. 1, 19, 101
S.Ct. 2615, 1625, 69 L.Ed.2d 435 (1981), these
separation-of-powers concerns are not present
in a Section 1983 case. Consistent with this view,
we recognize an exception to the general rule
that Section 1983 provides a remedy for viola-
tion of federal statutory rights only when Con-
gress has affirmatively withdrawn the remedy.
See Golden State Transit Corp. v. Los Angeles,
supra, Wright v. Roanoke Redevelopment and Hous-
ing Authority, supra.

(Wilder v. Virginia Hospital Assn.,
496 U.S. at 508, fn. 9, 110 S.Ct. 1417 fn. 9
(emphasis added))

Consequently, because there is no direct cause of action
under 33 U.S.C. § 403, it is more likely that Plaintiffs’ rights
would be enforced pursuant to a 42 U.S.C. § 1983 cause of
action.

In ruling that the Petitioners did not state a cause of
action, the Lower Courts relied principally on California v.
Sierra Club, 451 U.S. 287, 101 S.Ct. 1775 (1981). Petitioners
respectfully submit that California v. Sierra Club, supra, is
not dispositive as that case (1) arose in the context of a
direct cause of action pursuant to 33 U.S.C. § 403 and a
different test is involved for cases brought under 42

11

U.S.C. § 1983; (2) the test of an implied cause of action
utilized in California v. Sierra Club, supra, has been super-
seded by Merrell Dow Pharmaceuticals Inc. v. Thompson, 478
U.S. 204, 106 S.Ct. 3229 n.9, 92 L.Ed.2d 650 (1986), which
emphasizes the Congressional intent; (3) the Opinion of
Justice White in California v. Sierra Club, supra, was not
joined by any other justice as to whether a special benefit -
was attempted to be granted pursuant to 33 U.S.C. § 403;
(4) the body of federal regulations promulgated by the
Army Corp of Engineers is centered on a “public benefit
analysis” which focuses on benefits to the public at large
with an opportunity for the public to express their opin-
ion on proposed navigable obstructions.

The concurring Opinion of Justice Stevens proves
that the intent of 33 U.S.C. § 403 was to create public
rights.

In 1988 this Court reversed a decree enjoining
the construction of a bridge over a navigable
river. Willamett Iron Bridge Co. v. Hatch, 125 US.
1, 8 S.Ct. 811, 31 L.Ed.2d 629. The Court’s opin-
ion in that case did not question the rights of the
private parties to seek relief in a federal court;
rather, the Court held that no federal rule of law
prohibited the obstruction of the navigable
waterway. Congress responded to the Willamette
case in the Rivers and Harbors Act of 1890 by
creating a federal prohibition of such obstruc-
tions absent a permit from the Secretary of War,
26 Stat. 426, 454. At the time the statute was
enacted, I believe the lawyers in Congress sim-
ply assumed that private parties in a position
comparable to that of the litigants in the Will-
amette case would have a remedy for any injury
suffered by reason of a violation of the new

12

federal statute. For at that time the implication
of private causes of action was a well-known
practice at common law and in American courts.
Therefore, in my view, the Members of Congress
merely assumed that the federal courts would
follow the ancient maxim “ubi jus, ibi
remedium” and imply a private right of action.
See Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33,
39-40, 36 S.Ct. 482, 60 L.Ed. 874. Accordingly, if I
were writing on a clean slate, I would hold that
an implied remedy is available to respondents
under this statute.

(footnotes omitted, 451 U.S. 298-302)

Of course under the post Cort v. Ash, 422 U.S. 66, 95 S.Ct.
2080, 45 L.Ed.2d 26 (1975) test, the focus ie 2i:ost exclu-
sively on Congressional intent, Merrell Dow -“harmaceuti-
cal v. Thompson, supra).

Of special note, is the Sixth Circuit’s decision of
Norfolk & Western Co. v. United States of America, 641 F.2d
1201 (6th Cir. 1980). In Norfolk, it was held that there was
a private cause of action pursuant to 33 U.S.C. § 403.
While this specific holding is not good law in the fact of
California v. Sierra Club, supra, it is noteworthy that Nor-
folk certainly indicated that persons harmed by failure to
comply with the statute would be the intended benefici-
aries of the statute. This is unambiguous support of the
theory that rights have been created pursuant to this
statute.

The Sixth Circuit’s Opinion is inconsistent with other
decisions of that Circuit. For instance, in Horn v. Madison
County Fiscal Court, 22 F.3d 653, 658 (6th Cir. 1994) speci-
fically held that the Juvenile Justice Act constituted a |

i
'

ikl

13

deprivation of right, privilege and immunity which
would be enforceable under a 42 U.S.C. § 1983 cause of
action. In their holding the Sixth Circuit in Horn empha-
sized that the provisions in the act were specific and
mandatory as in 33 U.S.C. § 403.

Similarly, in Audette v. Sullivan, 19 F.3d 254, 256 (6th
Cir. 1994) the Sixth Circuit stressed that the federal stat-
ute must impose an obligation on the state actors and not
only on federal officials. Likewise, in Wood v. Thompkins,
33 F.3d 600, 605-607 (6th Cir. 1994), this Circuit upheld a
42 U.S.C. § 1983 action based on the Medicaid statute.
Importantly, the Wood Court ruled that the defendant
would have the burden of proving that no cause of
action for violation of statute could be brought.

Even in California v. Sierra Club, supra, in rejecting a
private cause of action, Justice White in his Opinion did
indicate that the legislative history supports the view that
“the act was designed to benefit the public at large by
empowering the federal government to exercise its
authority over interstate commerce with respect to
obstructions on navigable rivers caused by bridges and
similar structures.” 451 U.S. at 295, 101 S.Ct. at 1780.

The undeniable fact that the Army Corp of Engineers
is attempting to enforce 42 U.S.C. § 403 to benefit the
public with public input cannot be overlooked. Relevant
are the general regulatory policies promulgated by the
Corp of Army Engineers pursuant to 33 U.S.C. § 403.

(a) Regulatory approach of the Corp of Engineers.
(1) The U.S. Army Corp of Engineers has been
involved in regulating certain activities in the

14

nation’s waters since 1890. Until 1968, the pri-
mary thrust of the Corp regulatory program was
the protection of navigation. As a result of sev-
eral new laws and judicial decisions, the pro-
gram has evolved to one involving the
consideration of the full public interest by bal-
ancing the favorable impacts against the detri-
mental impacts. This is known as the “public
interest review.” The program is one which
reflects the national concerns for both the pro-
tections and utilization of important resources.

(33 C.F.R. 320.1)

Also, very relevant regarding the regulations of the Army
Corp of Engineers is the requirement of a public hearing
as mandated by 33 C.F.R. § 327.9.

+

CONCLUSION

For the foregoing reasons, the petition for writ of
certiorari should be granted.

Frank G. Becker P25502
Attorney for Plaintiffs-Appellants
18501 West Ten Mile Road
Southfield, MI 48075-2663
(810) 469-4910

la

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1996 FED App. 0287P (6th Cir.)
File Name: 96a0287p06

No. 95-1930

UNIED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Cart LOCHMAN; ELAINE
LocHMaAN, Individually and on
behalf of Kelli Lochman

and Kyle Lochman,

On Appear from the
United State District
Court for the
Western District

of Michigan

Plaintiffs-Appellants,
v.

County oF CHARLEVOIX, Jointly
and Severally; and Puito
SUMNER,

Jointly and Severally,

ed

Defendants-Appellees.

Decided and Filed September 3, 1996

Before: LIVELY, KENNEDY, and SILER, Circuit
Judges.

LIVELY, Circuit Judge. This case arose out of a tragic
accident in which a 12-year-old girl suffered serious and
permanent injuries while diving into a lake in a public

2a

park from a pier or dock owned by Charlevoix County,
Michigan. The single legal issue is whether a federal
statute, section 10 of the Rivers and Harbors Appropria-
tion Act of 1899 (the Act), 33 U.S.C. § 403 (1988), created a
“right” that is enforceable in an action brought pursuant
to 42 U.S.C. § 1983.

I.
A.

The facts are undisputed. Whiting Park is a county
park located in and operated by Charlevoix County. The
park offers beach and recreational facilities to the public
free of charge. The beach facility includes several docks.
One of the docks, known as the “T dock” or the “L dock,”
was used for diving by both children and adults for many
years prior to 1993. The defendant, Philo Sumner, the
manager of Whiting Park, built the dock at issue some-
time in 1977 or 1978 to replace a similar dock that had
been at the park since the 1950s.

Historically, each fall Mr. Sumner removed the dock
from the lake to store it for the winter, and each spring he
placed the dock back in the lake at its traditional location.
Following his usual practice, sometime in May 1993, Mr.
Sumner took the dock from storage and placed it in its
usual location, where the water was at least 4'/2 to 5 feet
deep, a depth safe for diving. The dock remained in that
position without incident throughout June and early July.

On the morning of July 9, 1993, an instructor from the
Boyne City Swim School, a community swim program
that made use of the beach facility for swimming and

3a

diving lessons, arrived at the park before time for her
class and noticed two park employees moving the dock
from its traditional location to an area of shallower water.
The instructor sought out Mr. Sumner and voiced her
concern that the new location would be unsafe for diving.
Mr. Sumner stated that he had instructed the park
employees to move the dock due to beach erosion at the
dock’s old location, which forced swimmers to step into
the water before stepping onto the dock. Mr. Sumner
indicated he was concerned that having people step from
the water onto the dock would make the dock unneces-
sarily slippery and potentially dangerous. After confirm-
ing that the water at the end of the dock was less than 4/2
feet deep, a dangerous depth for diving, the instructor
requested that Mr. Sumner either lengthen the dock or
place a warning sign to alert divers of the potential
danger of diving into the shallow water. He declined to
do either. Later that day, Kelli Lochman dove off the end
of the dock, struck her head on the shallow bottom, and
sustained severe injuries to her cervical spine, which
rendered her quadriplegic.

In February 1995, the Lochmans filed a multi-count
complaint for damages. In Count I of their complaint, the
Lochmans brought an action under § 1983 against Mr.
Sumner and Charlevoix County based on an alleged vio-
lation of the Act. The remaining counts contained due
process claims under § 1983 and various pendent state
law claims. Only the § 1983 claim based on alleged viola-
tion of § 10 of the Act is before us on appeal.

4a

Section 10 of the Act, 33 U.S.C. § 403, relied upon by
the plaintiffs, prohibits “(t]he creation of any obstruction
not affirmatively authorized by Congress, to the navigable
capacity of any of the waters of the United States... .” In
addition, the statute makes it unlawful to build any wharf,
pier or similar structure in navigable waters without
obtaining approval of the Corps of Engineers acting for the
Secretary of the Army. The park lake is an arm of Lake
Charlevoix, a navigable body of water. The county con-
ceded that it did not obtain the permission or approval of
the Army Corps of Engineers before moving the dock to
shallower water in 1993.

The defendants filed a motion for summary judg-
ment, arguing that there is no right of action under § 1983
for the alleged violation of § 10 of the Act. After review-
ing the parties’ arguments in light of Supreme Court
precedents, the district court granted summary judgment
on all federal claims and declined to exercise supplemen-
tal jurisdiction over the state law claims, dismissing them
without prejudice.

II.

In granting summary judgment on Count I, the dis-
trict court relied principally on Wilder v. Virginia Hospital
Ass'n, 496 U.S. 498 (1990) and California v. Sierra Club, 451
U.S. 287 (1981), after first noting that in Maine v.
Thiboutot, 448 U.S. 1 (1980), the Supreme Court held that
§ 1983 provides a remedy for viciations of federal statutes
as well as for violations of the Constitution.

ne ee eee Ne |

5a

A.

In Wilder, a group of private hospitals sued the gov-
ernor of Virginia and other state officials under § 1983 to
challenge the method by which the State was reimbursing
health care providers under the Medicaid Act, 42 U.S.C.
§ 1396. The Court stated that there are two exceptions to
the Thiboutot holding that § 1983 is an availabie remedy
for injuries caused by violation of a federal statute. The
first exception is that there can be no § 1983 action if the
statute does not create “enforceable rights, privileges, or
immunities within the meaning of § 1983.” The second
exception applies if “Congress has foreclosed such
enforcement of the statute in the enactment itself.” Id. at
508 (quoting Wright v. Roanoke Redevelopment and Housing
Authority, 479 U.S. 418, 423 (1987)). The presence of either
exception forecloses a § 1983 claim based on an alleged
statutory violation. Cline v. Rogers, 87 F.3d 176, 182-83, n.5
(6th Cir.1996). In Wilder, 496 U.S. at 508, the Court listed
the exceptions in the disjunctive.

In determining whether the first exception applies,
that is, whether a particular statute creates a “federal
right” that is enforceable under § 1983, a court's inquiry
“turns on whether ‘the provision in question was
intend[ed] to benefit the putative plaintiff.’” Id. at 509
(quoting Golden State Transit Corp. v. Los Angeles, 493 U.S.
103, 106 (1989)). If the provision in question was intended
to benefit one in the plaintiff’s position, it creates an
enforceable right and the first exception does not apply.
The inquiry with respect to the second exception is
whether the administrative remedial measures provided
in a given statute are “ ‘sufficiently comprehensive . . . to

demonstrate congressional intent to preclude the remedy

6a

of suits under § 1983.'” Id. at 521 (quoting Middlesex
County Sewerage Authority v. National Sea Clammers Ass‘n,
453 U.S. 1, 20 (1981)).

The Wilder Court, 496 U.S. at 509, prescribed a three-
part test for determining whether the first exception
applies. We stated the test as follows in Wood v. Tompkins,
33 F.3d 600 (6th Cir.1994):

To determire whether the first of these two
exceptions applies, the Court has developed a
three part test:

(1) Was the provision in question intended
to benefit the plaintiff?

(2) Does the statutory provision in ques-
tion create binding obligations on the
defendant governmental unit, rather
than merely expressing a congressional
preference? and

(3) Is the interest the plaintiff asserts spec-
ific enough to be enforced judicially,
rather than being “vague and amor-
phous”?

Id. at 604-05. Ali three questions must be answered affir-
matively to demonstrate the existence of a remedy under
§ 1983. Significantly, we held in Wood that “[t]he plaintiff
bears the burden of proving that this exception does not
apply.” Id. at 605.

In Sierra Club, the Supreme Court held that Congress
did not create a private right of action, either explicitly or
by implication, on behalf of persons claiming to have

7a

been injured by alleged violations of 33 U.S.C. § 403. The
Court stated that the “ultimate issue is whether Congress
intended to create a private right of action” in the statute.
451 U.S. at 293. This intent is to be discerned by applying
the four factors set forth in Cort v. Ash, 422 U.S. 66 (1975),
“for determining whether a private right of action should
be implied from a federal statute. ...” Id. at 292 (quoting
Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11,
26 (1979) (White, J., dissenting)).

The first of the four Cort factors is “whether the
plaintiff is a member of a class for ‘whose especial benefit
the statute was enacted.’” Id. at 293 (quoting Cort, 422
U.S. at 78, 80-82). The Court cautioned that “[t]he ques-
tion is not simply who would benefit from the Act, but
whether Congress intended to confer federal rights upon
those beneficiaries.” Id. at 294. After reviewing the lan-
guage of the Act and its legislative history, the Court
concluded that Congress’ intention in enacting § 10 was
to give the Secretary of War (now the Secretary of the
Army) authority to take action with respect to obstruc-
tions and nuisances in navigable waters. “Congress was
not concerned with the rights of individuals.” Id. at 295.

The Court then considered the second Cort factor,
whether Congress intended to create a private remedy for
violation of the Act. “[T]he focus of the inquiry is on
whether Congress intended to create a remedy.” Id. at
297. After considering the Act’s language and the legisla-
tive history, the Court concluded that Congress did not
intend to provide a private remedy.

Having found that analysis under the first two Cort
factors indicated no congressional intent to confer federal

8a

rights on the Sierra Club and other plaintiffs in the case,
or to provide a private remedy for violations of § 10 of
the Act, the Court found it unnecessary to consider the
remaining Cort factors. These remaining factors, whether
the purpose of the statute would be advanced by imply-
ing a private action and whether such a remedy is within
the federal domain interest, “are only of relevance if the
first two factors give indication of congressional intent to
create the remedy.” Id. at 298.

Ill.
A.

The plaintiffs argue that California v. Sierra Club is not
dispositive of their claim. They contend that because
Sierra Club involved a direct action under § 10 rather than
an action under § 1983 for violation of § 10, a different
approach is required.

The Wilder Court stated, as the plaintiffs point out,
that there is a different inquiry when a court is seeking to
determine whether a private right of action can be
implied from a particular statute and when it seeks to
determine whether a statute creates enforceable rights
under § 1983. Wilder, 496 U.S. at 509 n.9. Given the
Supreme Court’s reluctance to find “ ‘that Congress
intended to preclude reliance on § 1983 as a remedy’ for
the deprivation of a federally secured right” id. at 520
(quoting Smith v. Robinson, 468 U.S. 992, 1012 (1984)), the
plaintiffs argue that there is no basis for holding that
§ 1983 does not provide a remedy for violation of § 10.
Rather, the plaintiffs contend, § 10 was designed to pro-
tect all persons using the lake who are affected by a

9a

structure such as the dock that was moved without the
required authorization. According to the plaintiffs, the
very fact that there is no direct action available to a
person injured by such a violation strengthens their claim
that § 1983 provides a remedy.

The defendants assert that both exceptions to the
Thiboutot rule apply to § 10. In the first place, they main-
tain that the statute does not create enforceable rights,
privileges or immunities within the meaning of § 1983.
They reach this conclusion on the basis of the first ques-
tion in the three-part test outlined in Wilder and followed
by this court in Wood.

The first question under Wilder is whether Congress
intended to confer a benefit on persons with claims such
as those of the plaintiffs in enacting § 10. This is essen-
tially the same as the first inquiry under Cort, according
to the defendants. Concededly, the inquiry in a case when
a plaintiff claims a right to proceed under § 1983 for an
alleged violation of a federal statute is directed to deter-
mination of whether Congress created a right, privilege
or immunity rather than a determination of whether Con-
gress created a cause of action by implication. Neverthe-
less, the first test for making the determination is the
same in both cases: Did Congress intend to confer a
benefit on the plaintiff? The Supreme Court answered
this question in Sierra Club, say the defendants, by find-
ing that Congress did not intend to afford a private right
of action for persons injured by an alleged violation of
§ 10.

10a

With respect to the second exception to Thiboutot, the
defendants argue that a review of the entire Act demon-
strates that Congress provided the type of comprehensive
enforcement mechanism for the prohibitions of § 10 that
the Supreme Court has found to foreclose the availability
of obtaining a remedy under § 1983. They point out that
§ 12 of the Act provides criminal penalties for violations
of § 10 and that § 17 directs the Department of Justice to
“conduct the legal proceedings necessary to enforce the
provisions of [Sec. 10].” 33 U.S.C. § 413. The defendants
contend that this enforcement scheme is inconsistent with
the notion that Congress intended to afford individual
plaintiffs claiming injury by reason of violations of § 10 a
federal right enforceable under § 1983.

IV.
A.

There is no § 1983 remedy for violation of a federal
statute unless the statute creates “rights, privileges, or
immunities”; the violation of every federal statute does
not lead to the conclusion that § 1983 provides a remedy.
Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106
(1989). In determining whether a statute creates the
required rights, privileges or immunities, we look to see
if it creates binding obligations on the governmental unit
charged with the violation and whether Congress
intended it to benefit the putative plaintiff. Id.

We conclude that, unlike the statutes at issue in
Thiboutot and Wilder, there is no indication that § 10 was
intended to benefit any particular person or group of

lla

persons. We reach this conclusion by examining both the
language of the Act itself and its legislative history.

The language of the Act! leads us to agree with the
district court that the text indicates no intent by Congress
to create federal rights in every person who is affected by
any obstruction or other structure placed in a waterway
without the required approval. Rather, the tenor of the
Act indicates that its purpose was to keep the waterways
open for unimpeded navigation. The Supreme Court set-
tled this question in Sierra Club, stating:

Here, the statute states no more than a general
proscription of certain activities; it does not
unmistakably focus on any particular class of
beneficiaries whose welfare Congress intended

? Section 10, 33 U.S.C. § 403 provides:

Sec, 403. Obstruction of navigable waters generally; wharves;
piers, etc.; excavations and filling in

The creation of any obstruction not affirmatively
authorized by Congress, to the navigable capacity of any of the
waters of the United States is prohibited; and it shall not be
lawful to build or commence the building of any wharf, pier,
dolphin, boom, weir, breakwater, bulkhead, jetty, or other
structures in any port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside
established harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the Army; and it
shall not be lawful to excavate or fill, or in any manner to alter
or modify the course, location, condition, or capacity of, any
port, roadstead, haven, harbor, canal, lake, harbor of refuge, or
inclosure within the limits of any breakwater, or of the channel
of any navigable water of the United States, unless the work has
been recommended by the Chief of Engineers and authorized by
the Secretary of the Army prior to beginning the same.

' 12a

to further. Such language does not indicate an
intent to provide for private rights of action... .
Section 10... is the kind of general ban which
carries with it no implication of an intent to confer
rights on a particular class of persons.

451 U.S. at 294 (emphasis added).

The Court then briefly discussed the legislative his-
tory of the Act:

Neither the Court of Appeals nor respon-
dents have identified anything in the legislative
history suggesting that § 10 was created for the
especial benefit of a particular class. On the
contrary, the legislative history supports the
view that the Act was designed to benefit the
public at large by empowering the Federal Gov-
ernment to exercise its authority over interstate
commerce with respect to obstructions on navi-
gable rivers caused by bridges and similar struc-
tures. In part, the Act was passed in response to
this Court’s decision in Willamette Iron Bridge Co.
v. Hatch, 125 U.S. 1 (1888). There the Court held
that there was no federal common law “which
prohibits obstructions and nuisances in naviga-
ble rivers.” Id., at 8... . [T]he clear implication
of the Court’s opinion was that in the absence of
specific legislation no party, including the Fed-
eral Government, would be empowered to take
any action under federal law with respect to
such obstructions. The Act was intended to
enable the [Government] to take such action.
Congress was not concerned with the rights of
individuals.

Id. at 294-95 (footnote and citations omitted).

13a

In summary the Court stated that in enacting § 10,
“Congress was concerned not with private rights but
with the Federal Government's ability to respond to
obstructions on navigable waterways.” Id. at 296 (foot-
note omitted).

It is true that the Court conducted a Cort v. Ash
analysis in Sierra Club for the purpose of determining
whether § 10 contained an implied right of action rather
than a Wilder analysis to determine whether § 10 creates
rights, privileges and immunities making a § 1983 rem-
edy available for a violation. This difference does not
render Sierra Club irrelevant to our decision, as claimed
by the plaintiffs. This is so because the first and most
fundamental question to be answered in both determina-
tions is the same: In enacting this statute, did Congress
intend to benefit these plaintiffs? See Wilder, 496 U.S. at
509 (in determining whether a given statute creates a
federal right enforceable under § 1983, the inquiry “turns
on whether ‘the provision in question was intend[ed] to
benefit the putative plaintiff’ ”). See also, Suter v. Artist
M., 503 U.S. 347, 363-64 (1992) (the “most important
inquiry” in determining whether a statute contains an
implied right of action for private enforcement is
“whether Congress intended to create the private remedy
sought by the plaintiffs”). The plaintiffs did not carry
their burden of demonstrating that Congress created a
federal right intended to benefit individuals claiming
injury from a violation of § 10.

14a

Because we have concluded that § 10 was not
intended to protect individuals suffering the injuries for
which the plaintiffs in this case seek damages, we need
not determine whether the second Thiboutot exception
would deny validity to their § 1983 action. Wood v.
Tompkins, 33 F.3d at 608; Dumas v. Kipp, 90 F.3d 386 (9th
Cir. 1996).

CONCLUSION

Having conducted the required de novo review of an
order granting summary judgment, we find that the
plaintiffs failed to demonstrate the existence of a genuine
issue of material fact, and that the defendants were enti-
tled to judgment as a matter of law. Fep. R. Crv.P. 56(c).
Accordingly, the judgment of the district court is
AFFIRMED.

i es EE

15a

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CAROL LOCHMAN and ELAINE
LOCHMAN, individually and on
behalf of KELLI LOCHMAN and

KYLE LOCHMAN, Case No.
Plaintiffs, 1:95-CV-69
Vv. HON. GORDON
| J. QUIST

CHARLEVOIX COUNTY, and
PHILO SUMNER, jointly and
severally,

Defendants.
/

OPINION

This case arises from a tragic diving accident in
which 12 year old Kelli Lochman broke her neck, render-
ing her a quadriplegic. Plaintiffs Carl and Elaine Loch-
man, individually and on behalf of their children Kelli
and Kyle Lochman, brought this action against Char-
levoix County and Philo Sumner, manager of Whiting
Park in Charlevoix County, alleging a right of recovery
for Keili Lochman’s injuries under 42 U.S.C. § 1983 based
upon violations of 33 U.S.C. § 403 and the due process
clause of the Fourteenth Amendment. The complaint also
contains pendent claims. This matter is before the Court
on defendants’ motion for summary judgment.

Fa IES OTT oT eee ee

l6a

FACTUAL BACKGROUND

The facts upon which this decision is based are
undisputed. Whiting Park is a county park operated by
the County of Charlevoix. Defendant Philo Sumner is the
manager of Whiting Park, a position he has held since
approximately 1977. The park is open to the public free of
charge for use of the beach and recreational facilities. The
dock involved in the incident was built in 1977 or 1978 by
Mr. Sumner to replace an identical dock which had been
in place since the 1950’s. Each year, Mr. Sumner would
place the dock in relatively the same location where the
depth of the water was approximately five feet deep. The
dock was made up of twelve foot sections which locked
together. The dock was one hundred twenty feet long and
thirty five and one-half inches wide and was shaped like
an “L”.

The Boyne City Swim School program, a community
swim program organized by parents of the community,
made use of the dock each year. Bardel Belford, the swim
program instructor, would contact Mr. Sumner at the
beginning of the summer to inform him when the dock
would be needed for the program. Except for the hours
when the swim classes were being conducted, the dock
was open for public use. Mr. Sumner stated that the dock
had been used for diving by both children and adults for
many years.

At the beginning of the 1993 swim season, Ms. Bel-
ford asked one of her students, Nissa Ryder, to enter the
water at the end of the dock to check the depth of the
water. In the original location of the dock, the water

17a

measured approximately four and one half to five feet
deep, a level safe for diving.

On July 9, 1993, Belford arrived at the Park to con-
duct swim class and observed the dock moved by two
employees of the Park. Mr. Sumner had requested that
the dock be moved because the beach was eroding from
the front of the dock, requiring people using the dock to
step from the beach into the water and onto the dock.
Upon seeing the dock moved, Ms. Belford voiced her
concern to Mr. Sumner that the water in the new location
would be too shallow for diving. Mr. Sumner responded
with his concern that having people step from the water
onto the dock would make the dock unnecessarily slip-

pery.

Ms. Belford asked Nissa Ryder to check the depth of
water at the end of the dock in the new location. Ms.
Belford determined that the water at the end of the dock
was too shallow for diving; the water only reached shoul-
der level on Nissa Ryder, who was approximately four
feet five inches tall. Ms. Belford indicated that she would
not have noticed that the dock had been moved had she
not seen the workers moving it. Ms. Belford informed Mr.
Sumner that the dock was no longer safe for diving in the
new location. She asked Mr. Sumner to either extend the
dock from the “L-shape” to a straight configuration into
deeper water, or to place a warning sign that the dock
had been moved. Mr. Sumner declined to do either. He
was concerned that people running on the dock with wet
feet might slip and injure themselves.

Mr. Sumner concedes that the depth of the Lake was
variable due to the presence of sand bars. Mr. Sumner
never made any study regarding the location of the dock

18a

with regard to the location of the sand bars and failed to
check the depth at the end of the dock in its new location.
Mr. Sumner did not obtain permission from the Army
Corp of Engineers to place or move the dock in violation
of 33 U.S.C. § 403 of the Navigable Waters Act.

In the afternoon of July 9, 1993, Kelli Lochman, age
12, and her older brother Kyle were swimming at Whiting
Park. Kelli jumped or dove off from the dock and
allegedly struck her head on the lake bottom. Kelli sus-
tained a cervical spinal cord injury, rendering her a quad-
riplegic. The Lochmans had been to the Park in previous
years, but July 9 was the first day Kelli and Kyle had
gone swimming at the Park in 1993.

DISCUSSION
§ 1983 Violation of Federal Statute 33 U.S.C. § 403

Plaintiffs argue that defendants violated 33 U.S.C.
§ 403, a provision of the Navigable Waters Act which
prevents the creation of any structure on the navigable
waters of the United States without proper authority
granted by the Army Corps of Engineers.! Plaintiffs

1 33 U.S.C. § 403 provides:

The creation of any obstruction not affirmatively
authorized by Congress, to the navigable capacity of
any of the waters of the United States is hereby
prohibited; and it shall not be lawful to build or
commence the building of any . . . [structure] outside
established harbor lines, or where no harbor lines
have been established, except on plans recommended
by the Chief of Engineers and authorized by the
Secretary of the Army....

19a

allege that defendants moved and erected a dock, extend-
ing into Lake Charlevoix, without federal authorization
as mandated by the statute. Plaintiffs seek remedy under
42 U.S.C. § 1983 which provides that any person who,
under color of law, deprives any citizen of the United
States of any rights, privileges, or immunities secured by
the Constitution and laws shall be held liable.

The Supreme Court has established that 42 U.S.C.
§ 1983 encompasses claims based on purely statutory
violations of federal law. Maine v. Thiboutot, 448 U.S. 1,
5-7, 100 S. Ct. 2502, 2504-05 (1980). The Court has subse-
quently created two exceptions to the general rule. “A
plaintiff alleging a violation of a federal statute will be
permitted to sue under § 1983 unless (1) ‘the statute
[does] not create enforceable rights, privileges, or immu-
nities within the meaning of § 1983,’ or (2) ‘Congress has
foreclosed such enforcement of the statute in the enact-
ment itself.’ ” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498,
508, 110 S. Ct. 2510, 2517 (1990) (citing Wright v. Roanoke
Redevelopment and Housing Authority, 479 U.S. 418, 423,
107 S. Ct. 766, 770 (1987)).

The Supreme Court has developed a three part test to
determine whether a particular statute creates an enforce-
able federal right under § 1983. First, the provision in
question must be intended to benefit the putative plain-
tiff. Wilder, 496 U.S. at 509, 110 S. Ct. at 2517. If the
plaintiff is the intended beneficiary, the provision creates
an enforceable right unless it reflects merely a congres-
sional preference rather than a binding obligation, or
unless it is so vague and amorphous as to be beyond the
competence of the judiciary to enforce. Wilder, 496 U.S. at
509, 100 S. Ct. at 2517. See also Horn by Parks v. Madison

20a -

County Fiscal Court, 22 F.3d 653, 657 (6th Cir. 1994), cert.
denied, __ U.S. __, 115 S. Ct. 199 (1994).

The Supreme Court has concluded that the test for
determining the intended beneficiary of a statute is, in
part, functionally the same test as that for determining
whether a statute provides for a private right of action.
Suter v. Artist M., 503 U.S. 347, 112 S. Ct. 1360, 1370
(1992). In deciding whether a private right of action
should be implied from a federal statute, the Supreme
Court has adopted a four prong analysis. The first consid-
eration of the analysis is whether the plaintiff is a mem-
ber of a ciass for whose benefit the statute was enacted.
Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2087 (1975).

Plaintiffs argue that 33 U.S.C. § 403 was intended to
benefit the public at large, making all potentially harmed
plaintiffs intended beneficiaries. In California v. Sierra
Club, 451 U.S. 287, 294, 101 S. Ct. 1775, 1779 (1981), the
Supreme Court held that 33 U.S.C. § 403 does not provide
a private right of action. According to the Court, private
parties were not the intended beneficiaries of the statute,
Sierra Club, 451 U.S. at 294, 101 S. Ct. at 1779. The Court
reasoned if any person who could be harmed by an
unauthorized obstruction was the intended beneficiary of
the statute, the Cort analysis would be meaningless. The
Court found that “(t]he question is not simply who would
benefit from the Act, but whether Congress intended to
confer federal rights upon those beneficiaries.” Id. In
Sierra Club, the Court concluded that § 403 states no more
than a general proscription of activities; it does not focus
on any particular beneficiaries upon whom Congress
intended to confer federal benefits. Therefore, plaintiffs
are not the intended beneficiaries of the statute, and 33

21a

U.S.C. § 403 does not create for the plaintiffs an enforce-
able right without the meaning of § 1983.

Given that the Supreme Court in Sierra Club explicitly
determined that potentially harmed plaintiffs were not
the intended beneficiaries of the statute, plaintiffs’ argu-
ment seems to be just the result the Supreme Court
rejected. This Court does not believe that Congress or the
Supreme Court intended that any member of the general
public that is harmed in some way by a structure on a
navigable waterway becomes the intended beneficiary of
33 U.S.C. § 403. Defendants’ motion for summary judg-
ment on Count I of plaintiffs’ complaint will, therefore, be
granted.

§ 1983 Violation of the Due Process Clause

In Counts II and III, plaintiffs allege that the County
of Charlevoix and Philo Sumner, respectively, violated
their substantive due process rights. Plaintiffs claim that
the County of Charlevoix was deliberately indifferent to
the safety of persons using Whiting County Park for
swimming and diving by failing to provide adequate
training to Mr. Sumner in park and water safety. Plaintiffs
allege Mr. Sumner was deliberately indifferent to the
safety of persons using Lake Charlevoix and grossly neg-
ligent in failing to move the dock to a safer location or to
place signs indicating the depth of the water at the dock’s
new location.?

2 In their complaint, plaintiffs use the same facts
interchangeably to advance a “deliberate indifference” and a
“gross negligence” claim against the defendants. In their

22a

The threshold requirement of a § 1983 action relates
to “whether the plaintiff has been deprived of a right
‘secured by the Constitution, and laws’ ” Lewellen v. Met-
ropolitan Gov't of Nashville, 34 F.3d 345, 347 (6th Cir. 1994),
cert. denied, 115 S. Ct. 903 (1995) (quoting Baker v.
McCollan, 443 U.S. 137, 140, 99 S. Ct. 2689, 2692 (1979)). A
plaintiff’s injury must have been caused by a constitu-
tional violation. Collins v. City of Harker Heights, Tex., 503
U.S. 115, 112 S. Ct. 1061, 1066 (1992).

The due process clause of the Fourteenth Amend-
ment protects against the arbitrary exercise of govern-
mental power and guarantees individual freedom from
deliberate acts by government officials which deprive an
individual of life, liberty, or property. Daniels v. Williams,
474 U.S. 327, 331, 106 S. Ct. 662, 665 (1986).

In Collins, the Supreme Court established that a
municipality’s “deliberate indiffrence” to the safety of its
employees did not constitute a violation of any constitu-
tionally protected interest. 503 U.S. at 128, 112 S. Ct. at
1070. In Collins, the widow of a city sanitation depart-
ment employee who died of asphyxia after entering a
manhole brought a § 1983 action against the city. The
plaintiff alleged that the city’s deliberate indifference to
her husband’s safety constituted arbitrary government
action in violation of the due process clause. In rejecting

response brief, plaintiffs fail to mention upon which theory they
are basing their due process claim, but instead reiterate some of
the facts mentioned in the complaint. Given the case law,
however, this Court does not believe that it matters which
standard plaintiffs are arguing.

23a

plaintiff’s claim, the Court noted “[w]e are also not per-
suaded that the city’s alleged failure to train its
employees, or to warn them about known risks of harm,
was an omission that can properly be characterized as
arbitrary, or conscience-shocking, in a constitutional
sense.” Collins, 503 U.S. at 127, 112 S. Ct. at 1070. The
Court refused to impose federal duties under the due
process clause which were analogous to those imposed by
state tort law.

The Sixth Circuit has expanded Collins by holding
that even gross negligence does not establish a violation
of substantive due process under § 1983. In Lewellen, the
Court held that the defendants’ deliberate disregard of a
very high risk of harm to the plaintiff did not constitute a
violation of the due process clause. 34 F.3d at 351. In
Lewellen, the plaintiff, a workman who was accidentally
injured on a school construction project, brought suit
under § 1983. The plaintiff contended that the accident
was a result of grossly negligent acts and omissions by
the school board. He characterized the school board’s
conduct in deliberately choosing to build the school
directly beneath a high voltage conductor line, in deliber-
ately delaying removal of line, and in willfully disregard-
ing the very high risk to workman safety created by the
line as “reckless and/or undertaken with deliberate indif-
ference to plaintiff’s personal safety.” Lewellen, 34 F.3d at
346.

Although it recognized a genuine material dispute of
fact as to whether the defendants had been negligent, the
Court relied on Collins and found that no constitutional
violation had occurred as a matter of law. The Court

24a

concluded by noting that “the injuries suffered by plain-
tiff Lewellen, like the death of Mr. Collins, resulted from
what at worst was gross negligence. Gross negligence is
not actionable under § 1983, because it is not ‘arbitrary in
the constitutional sense.’ ” Lewellen, 34 F.3d at 351 (quot-
ing Collins, 112 S. Ct. at 1071).

A substantive due process violation requires an
intentional act designed to inflict injury on the plaintiff.
Wilson v. Beebe, 770 F.2d 578, 586 (6th Cir. 1985) (en banc);
Lewellen, 34 F.3d at 348. Unless a defendant engages in
arbitrary conduct deliberately designed to inflict injury
on the plaintiff, a feccral § 1983 claim is simply not
triggered.

The plaintiffs allege that Mr. Sumner deliberately
chose to move the dock to water of unknown depth,
deliberately delayed moving the dock or posting a warn-
ing after being warned of the danger, and willfully disre-
garded the very high risk of injury which he created. Like
the plaintiffs in Lewellen and Collins, the plaintiffs’ allega-
tions are not enough to establish a constitutional viola-
tion. Taking deliberate steps which result in death or
injury to someone (e.g., driving too fast) is substantively
different from acting deliberately to kill or injure some-
one (trying to run over a person). Kelli Lochman’s injury
resulted from — at worst - the gross negligence of Mr.
Sumner, not Mr. Sumner’s intent to injure her. Because
Mr. Sumner did not intentionally subject the plaintiff to
severe spinal cord injuries, the plaintiffs cannot sustain a
§ 1983 claim based on a violation of the due process
clause. Whatever the strength of plaintiffs’ claim under
Michigan state tort law, plaintiffs do not have a federal

25a

claim. Defendants’ motion for summary judgment on
Counts II and III of plaintiffs’ complaint will be granted.

Supplemental Claims

This Court does not have original jurisdiction over
the remaining claims. Instead, this Court was asked to
exercise its supplemental jurisdiction under 28 U.S.C.
§ 1367(a). Also, from reading the Complaint and the
briefs in the pending motion, it appears that the supple-
mental claims may require significant interpretation and
analysis under Michigan law. These matters are best han-
dled by the state courts. This Court expresses no opinion
on the state law claims. Therefore, this Court will dismiss
the remaining Counts IV through XII without prejudice
pursuant to 28 U.S.C. § 1367(c). The parties should take
note of the tolling provisions of 28 U.S.C. § 1367(d).

A separate Order will be entered.
Dated: July 18, 1995

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES
DISTRICT JUDGE

26a

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CARL LOCHMAN and ELAINE
LOCHMAN, individually and on
behalf of KELLI LOCHMAN and

KYLE LOCHMAN, Case No.
Plaintiffs, 1:95-CV-69

Vv HON. GORDON

: J. QUIST

CHARLEVOIX COUNTY, and
PHILO SUMNER, jointly and
severally,

Defendants.

OPINION AND ORDER

On July 18, 1995, this Court issued an Order granting
defendants’ motion for summary judgment. This matter
is presently before the Court on Plaintiffs’ Motion for
Relief from Order Pursuant to Fed. R. Civ. P. 60(b)(6) and
Plaintiffs’ Motion for an Extension of Time to File an
Appeal Pursuant to Fed. R. App. P. 4(a)(5) for Good
Cause. The Court has considered these motions. The
arguments made by plaintiffs have been duly considered
in the Opinion previously issued by this Court. The addi-
tional discovery requested by plaintiffs would have no
bearing on the Court’s analysis. Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ Motion for
Relief from Order (docket no. 19) is DENIED.

27a

IT IS FURTHER ORDERED that plaintiffs’ Motion
for an Extension of Time (docket no. 22) is DENIED.

Dated: August 21, 1995

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES
DISTRICT JUDGE

Counts IV, V, VI, VII, VIII, IX, X, XI, and XII are
DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the hearing sched-
uled for July 24, 1995, at 10:00 AM is cancelled.

This case is, therefore, terminated before this Court.
Dated: July 18, 1995

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES
DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1894%3A1. Public record. Not legal advice.