United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTIONS TO DISMISS
V. PARKER U.S. DISTRICT JUDGE
lawsuit arises from Plaintiff Tara Nikolao's interaction
with employees at the Wayne County Health Department while
procuring the forms necessary to exempt her children from the
State of Michigan's vaccination requirement to attend
public school. In a Complaint filed July 7, 2016, Plaintiff
alleges the following claims against Defendants: (1)
violation of the Free Exercise Clause of the First Amendment;
(2) violation of the Establishment Clause of the First
Amendment; (3) violation of Article 1, Section 4 of the
Michigan Constitution; and (4) violation of Michigan Compiled
Laws Section 333.9215. Defendants are: Nick Lyon
(“Director Lyon”), sued in his individual
capacity and in his official capacity as Director of the
Michigan Department of Health and Human Services
(“MDHHS”); the Wayne County Department of Health,
Veterans, and Community Wellness (“DHVCW”); Dr.
Mouhanad Hammami (“Dr. Hammami”), sued
individually and in his official capacity as Director of
DHVCW; Carol Austerberry (“Ms. Austerberry), sued
individually and in her official capacity as Division
Director and Deputy Health Officer of DHVCW; and Jane Does 1
and 2, sued individually and in their official capacities as
nurse and nurse manager, respectively, for DHVCW.
before the Court is Director Lyon's motion to dismiss
pursuant to Federal Rules of Civil Procedure 12(b)(1) and
(6), filed August 24, 2016. (ECF No. 11.) Also before the
Court is a motion to dismiss pursuant to Rule 12(b)(6) or, in
the alternative, Rule 56, filed by DHVCW, Dr. Hammami, and
Ms. Austerberry (collectively “Wayne County
Defendants”). (ECF No. 10.) Plaintiff filed a brief
responding to both motions on September 14, 2016. (ECF No.
12.) Director Lyon and the Wayne County Defendants filed
reply briefs on September 28, 2016. (ECF Nos. 13, 14.)
Finding the facts and legal arguments sufficiently presented
in the parties' briefs, the Court is dispensing with oral
argument pursuant to Eastern District of Michigan Local Rule
motion to dismiss pursuant to Rule 12(b)(1) challenges the
Court's subject matter jurisdiction. Fed.R.Civ.P.
12(b)(1). Where subject matter jurisdiction is challenged
under this rule, the plaintiff bears the burden of proving
jurisdiction. Moir v. Cleveland Reg'l Transit
Auth., 895 F.2d 266, 269 (6th Cir. 1990). Rule 12(b)(1)
motions to dismiss for lack of subject matter jurisdiction
fall into two general categories: facial attacks and factual
attacks. Fed.R.Civ.P. 12(b)(1); United States v.
Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).
facial attack challenges the sufficiency of the pleading
itself. In that instance, the court accepts the material
allegations in the complaint as true and construes them in
the light most favorable to the nonmoving party.
Ritchie, 15 F.3d at 598 (citing Scheuer v.
Rhodes, 416 U.S. 232, 235-37 (1974)). In contrast, a
factual attack is “not a challenge to the sufficiency
of the pleading's allegation, but a challenge to the
factual existence of subject matter jurisdiction.”
Id. Where the motion presents a factual attack, the
court does not afford a presumption of truthfulness to the
allegations but weighs the evidence to determine whether
subject matter jurisdiction exists. On a factual attack, the
court has broad discretion to consider extrinsic evidence,
including affidavits and documents, and can conduct a limited
evidentiary hearing if necessary. See DLX, Inc. v.
Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir.1990).
motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the complaint. RMI Titanium Co. v.
Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.
1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” To survive a motion to dismiss, a complaint
need not contain “detailed factual allegations, ”
but it must contain more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action . . ..” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint
does not “suffice if it tenders ‘naked
assertions' devoid of ‘further factual
enhancement.' ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
Supreme Court provided in Iqbal and
Twombly, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Id. (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard “does not impose a probability
requirement at the pleading stage; it simply calls for enough
facts to raise a reasonable expectation that discovery will
reveal evidence of illegal [conduct].”
Twombly, 550 U.S. at 556.
deciding whether the plaintiff has set forth a
“plausible” claim, the court must accept the
factual allegations in the complaint as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). This presumption,
however, is not applicable to legal conclusions.
Iqbal, 556 U.S. at 668. Therefore,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. (citing Twombly, 550
U.S. at 555).
judgment pursuant to Rule 56 is appropriate “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The central inquiry
is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). After adequate time for discovery
and upon motion, Rule 56 mandates summary judgment against a
party who fails to establish the existence of an element
essential to that party's case and on which that party
bears the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
law requires children to receive certain vaccinations in
order to attend public school, with two exceptions:
(1) A child is exempt from the requirement of this part as to
a specific immunization for any period of time as to which a
physician certifies that a specific immunization is or may be
detrimental to the child's health or is not appropriate.
(2) A child is exempt from this part if a parent, guardian,
or person in loco parentis of the child presents a written
statement to the administrator of the child's school
… to the effect that the requirements of this part
cannot be met because of religious convictions or other
objection to immunization.
Mich. Comp. Laws § 333.9215. In December 2014, a new
administrative rule was implemented in Michigan requiring
individuals seeking a nonmedical exemption from the
vaccination requirement to obtain certification from
“the local health department that the individual
received education on the risks of not receiving the vaccines
being waived and the benefits of vaccination to the
individual and the community.” Mich. Admin. Code R.
325.176(12). The rule states that “[a]ll waivers shall
be submitted using the waiver form prescribed by the
department.” Id. MDHHS provides local health
department employees with materials outlining inter
alia responses to concerns about vaccinations and
asserted religious reasons for rejecting immunizations.
(Compl. ¶ 26, Ex. B.) Plaintiff alleges that the
materials “contain[s] many misrepresentations and
falsehoods about Catholic beliefs and teachings relating to
vaccines.” (Id. ¶ 27.)
is a devout Roman Catholic and the mother of four children.
(Id. ¶¶ 12, 13.) Plaintiff opposes all
vaccines based on her religious beliefs “that the body
is God's temple and injecting it with chemicals that
permanently alter the body violates the will of God.”
(Id. ¶ 14.) Prior to October 2015, Plaintiff
received religious exemptions from the State vaccination
requirement approximately ten times by submitting her
objection in writing and providing it to her children's
school. (Id. ¶ 38.)
October 5, 2015, in accordance with administrative rule
325.176(12), Plaintiff went to the Wayne County Health
Department (“WCHD”) to obtain the certification
now needed for her children's exemption forms.
(Id. 39.) Plaintiff alleges that to obtain the
forms, she had to leave work early, pack up her four
children, and drive approximately two hours to travel
roundtrip between her home and the WCHD. When she arrived at
the WCHD, Plaintiff met with Defendant Jane Doe 1, a WCHD
nurse. (Id. ¶¶ 21, 42.)
to Plaintiff, after she stated she had a religious objection
to vaccines, the nurse “asked [Plaintiff] what her
actual reason was for objecting.”
(Id. ¶ 42, emphasis in original.) When
Plaintiff repeated that she had a religious objection to
vaccines, Jane Doe 1 stated that Plaintiff needed to be more
specific. (Id. ¶43.) Plaintiff refused because
she did not want to share her personal beliefs; however, Jane
Doe 1 insisted on specifics stating that the “
‘State's got documentation that a lot of the
religions are now going for the vaccines.' ”
(Id. 45.) Plaintiff claims Jane Doe 1 “pressed
harder, repeatedly asking what [Plaintiff's] religious
belief was and if it had to do with the ingredients in
vaccines or injections.” (Id. ¶ 47.)
Plaintiff continued to offer nothing more than that she is
requesting an exemption based on her religious beliefs, Jane
Doe 1 left to get Defendant Jane Doe 2, the nurse manager.
(Id. ¶ 22, 49.) According to Plaintiff, she
then told the nurses that State law only required a person to
assert a religious objection. (Id. ¶ 50.)
Plaintiff claims that Jane 2 issued in response “an
ultimatum: if [Plaintiff] wanted the statutorily mandated
religious waiver, she needed to declare what religion she
practices, explain her religious beliefs, and engage in a
back and forth discussion with the Wayne County nurse
concerning her religious objection because, according to
Defendant Jane Doe 2, there are no religions that have
objections to vaccines.” (Id. ¶ 51.)
Doe 2 next showed Plaintiff MDHHS educational materials,
which Plaintiff claims “contain misrepresentations
and lies about Catholic beliefs and teachings.”
(Id. ¶ 52.) Plaintiff specifically points to
this statement in the materials:
In 2005, Pope Benedict XVI addressed [vaccines made from
aborted fetal cells]. It was determined that parents who
chose not to give vaccines derived from these cells would be
in “more proximate cooperation with evil” than
those who gave their children the ...