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Nikolao v. Lyon

United States District Court, E.D. Michigan, Southern Division

February 23, 2017

TARA NIKOLAO, Plaintiff,



         This 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.

         Presently 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 7.1(f).

         I. Applicable Standards

         A 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).

         A 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).

         A 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 557).

         As the 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.

         In 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).

         Summary 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).

         II. Factual Background

         Michigan 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.)

         Plaintiff 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.)

         On 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.)

         According 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.)

         When 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.)

         Jane 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 ...

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