United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION TO DISMISS
F. Cox United States District Judge.
filed this action, asserting multiple claims against multiple
Defendants. All claims against Defendant Managed Medical
Review Organization, Inc. (“MMRO”) have been
dismissed by Plaintiff. The matter is currently before the
Court on a Motion to Dismiss Plaintiff's First Amended
Complaint brought by the remaining Defendants. The motion has
been fully briefed by the parties, including supplemental
briefing ordered by this Court. The Court finds that oral
argument would not aid the decisional process. See
Local Rule 7.1(f)(2), U.S. District Court, Eastern District
of Michigan. The Court therefore orders that the motion will
be decided upon the briefs. For the reasons set forth below,
the Court shall grant the motion in part and deny it in part.
The Court shall grant the motion to the extent that the Court
shall dismiss Counts I, II, IV, V, and VII of Plaintiff's
First Amended Complaint. The motion shall be denied in all
other respects, leaving Counts III and VI remaining in this
11, 2016, Plaintiff Craig Shaw filed this action, asserting
claims against the following five Defendants: 1) the City of
Riverview; 2) the City of Riverview Retirement Board of
Trustees; 3) Gary Chevillet; 4) Douglas Drysdale; 5) and
MMRO. Plaintiff has since dismissed all claims against MMRO.
filed a First Amended Complaint, as of right, on July 12,
2016. (D.E. No. 20). That First Amended Complaint includes
the following counts that are asserted against the City, the
Board, Chevillet, and Drysdale (“the Remaining
Defendants”): 1) “Count I: Declaratory Relief
(Unlawful Impairment of Contract)”; 2) “Count II:
Declaratory Relief (Unlawful Taking)”; 3) “Count
III: Declaratory Relief (Deprivation of Property Without Due
Process”; 4) “Count IV: Violation of 42 U.S.C.
§ 1983) (As To Individual Defendants)”; 5)
“Count V: Conspiracy To Violate Plaintiff's Federal
Civil Rights (All Defendants)”; 6) “Count VI:
Declaration of Rights (All Defendants)”; and 7)
“Count VII: Writ of Mandamus.”
over-arching request for relief (First Am. Compl. at Pg ID
297) asked for this Court to order the following relief:
A. Assume jurisdiction of this case;
B. Enter a declaratory judgment pursuant to 28 U.S.C.
§§ 2201-2202 declaring that the ordinance, as
applied to plaintiff, violated plaintiff's rights
protected by the United States and Michigan constitutions;
C. Issue a permanent injunction barring defendants from
revoking plaintiff's duty disability retirement;
D. Award plaintiff money damages to make him whole for any
loss and to restore him to the position he would have been in
but for the constitutional violations;
E. Enter a money judgment against Riverview, Chevillet, and
Drysdale, punitive damages in the amount of $376, 092.36,
plus interest, costs, attorney fees, and any other relief the
Court deems just;
F. Award attorney fees and costs incurred in this action
pursuant to 42 USC 1988 and/or any other provision of law;
G. Issue such other relief as the Court deems just and
Remaining Defendants filed a motion seeking to dismiss
Plaintiff's First Amended Complaint. (D.E. No. 29).
the parties had briefed the issues, Defense Counsel filed a
supplemental brief, advising the Court that the Sixth Circuit
had recently issued an opinion in a case with similar claims
and issues, and asking the opportunity to submit supplemental
briefing. (D.E. No. 38).
September 20, 2016, this Court issued an order that provided
that both Plaintiff and the Remaining Defendants could file
supplemental briefs, addressing Counts I, II, and III of
Plaintiff's First Amended Complaint, and the Sixth
Circuit's decision in Puckett v. Lexington-Fayette
Urban Cty. Govt., 833 F.3d 590 (6th Cir. Aug. 15, 2016).
(D.E. No. 39). Thereafter, the parties filed those
supplemental briefs. (D.E. Nos. 43 and 48).
ruling on a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), the court must construe the complaint in a light
most favorable to the plaintiff and accept all the
well-pleaded factual allegations as true. Evans-Marshall
v. Board of Educ., 428 F.3d 223, 228 (6th Cir. 2005).
Although a heightened fact pleading of specifics is not
required, the plaintiff must bring forth “enough facts
to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007).
purposes of this motion, the Court may consider: 1) documents
referenced in, or attached to, the complaint and central to
the plaintiff's claims; 2) matters of which a court may
properly take notice; and 3) public documents and records.
Devlin v. Kalm, 531 F. App'x 697, 703 (6th Cir.
2013); Costell v. Bank of New York Mellon, 2013 WL
317746 (E.D. Mich. 2013); Meyer v. Citimortgage,
Inc., 2012 WL 511995 (E.D. Mich. 2012).
City of Riverview (“the City”) is a municipal
corporation established pursuant to Mich. Comp. Laws §
117.1 et seq. (Pl.'s Am. Compl. at ¶ 16).
City of Riverview Retirement System is a retiree benefit plan
available to eligible city employees that is administered and
managed by a Board of Trustees (“the Board”) and
governed by the City's ordinances. (Id. at
¶ 17; Exs. B & D to Defs.' Br.). At all relevant
times, Defendant Gary Chevillet (“Chevillet”) has
been the Chairmen of the Board and Defendant Douglas Drysdale
(“Drysdale”) has been the Treasurer of the Board.
(Pl.'s Am. Compl. at ¶¶ 19-20).
was hired as a full-time utility worker by the City in 1992.
(Id. at ¶ 25). By virtue of his employment,
Plaintiff was a member of the system and was entitled to
certain benefits, including retirement pension and disability
benefits. (Id. at ¶ 30-31). The terms of
Plaintiff's employment, including his compensation
package and fringe benefits, are controlled by the local
ordinances adopted by the City. (Id. at ¶ 27).
At all relevant times, the City's ordinance has provided
for a disability retirement in the event an eligible member
becomes disabled while on duty. (Defs.' Exs. B & C,
January and February of 2009, Plaintiff sustained injury to
his right shoulder during the course of his employment, which
caused him to file an application with the Board for
disability retirement. (Id. at ¶ 32-33).
version of the applicable City ordinance (§ 2-351) in
effect at that time provided that “[u]pon the filing of
a written application with the board by a member, or the city
manager or his designee, a member who become permanently and
totally incapacitated for their prescribed duty as a city
employee, shall be retired by the board, if, and only if,
” certain conditions are met. (D.E. No. 29 at Pg ID
302-03). The ordinances in effect at that time also provided,
in pertinent part:
2-359. - Conditions for disability retirants.
(a) Once each three years following the retirement of a
member with a disability pension the board shall require any
disability retirant, who has not attainted the age 55 years,
to undergo a medical examination to be made by or under the
direction of a teaching medical facility having experts in
the field of claimed disability. Notwithstanding the
provisions of this section, the board may accept an attending
physician's certification of continued incapacitation
where an on sight examination is not feasible. If the
retirant refuses to submit to the medical examination (or
furnish certification) in any such period the retirant's
disability, pension may be discontinued by the board until
the retirant's withdrawal of such refusal. . . . If
upon such medical examination of a retirant, the medical
facility finds that the retirant is physically able and
capable of resuming employment in the job held at retirement,
the retirant's pension shall terminate and the
retirant shall be returned to city employment in a pay grade
not lower than the pay grade held at the time of retirement.
If the retirant refuses to return to city employment in such
vacancy, the retirant shall be considered separated from city
employment and the retirant's interest in the retirement
system shall be determined by the provisions of the
retirement system ordinance at that time.
(D.E. No. 29 at Pg ID 305-06) (emphasis added).
undisputed that on July 1, 2010, the Board granted
Plaintiff's application for a disability retirement.
(Pl.'s Am. Compl. at ¶ 36).
December of 2015, the City amended § 2-359 to read:
Sec. 2-359. Conditions for disability retirants.
(a) Once every year following the retirement of a member
with a disability pension or if circumstances warrant on a
more often basis, the board shall require any disability
retirant to undergo a medical examination to be made by or
under the direction of the Medical Director or other
Physician. The board may also require and accept an
attending Physician's certification of continued