United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING IN PART MOTION FOR LEAVE
TO FILE AN AMENDED COMPLAINT
L. LUDINGTON UNITED STATES DISTRICT JUDGE
September 22, 2017, Plaintiff Rita R. Johnson filed suit in
the Saginaw County Circuit Court against Defendants City of
Saginaw and Water Department Worker No. 1. Johnson contends
that Defendants “arbitrarily and capriciously turned
off the water supply” to her business on May 7, 2011,
“without notice or authority.” Compl. at 2, ECF
No. 10, Ex. B. Defendants removed the case to this Court
several days later. ECF No. 1. On September 29, 2017, Johnson
filed a motion to remand the case, arguing that it was
improperly removed. ECF No. 3. Several days later, Defendants
filed a motion to dismiss the suit. ECF No. 7. On December
20, 2017, the Court issued an opinion and order denying the
motion to remand, denying the motion to dismiss, and
resolving several other miscellaneous motions. ECF No. 23.
January 5, 2018, the Court adopted a stipulation wherein the
parties agreed to permit Johnson to file an amended
complaint. ECF No. 27. The amended complaint in question
identified Jason Cabello as the previously unnamed water
department worker. ECF No. 28. On February 7, 2018, Johnson
filed a motion for leave to file a second amended complaint.
ECF No. 34. The proposed second amended complaint adds
another Defendant, John Stemple. Johnson alleges that Stemple
is the “public official/employee . . . who directed the
turning off of the delivery of water.” Prop. Sec. Am.
Compl. at 1. Defendants oppose the motion. For the following
reasons, the motion for leave to file a second amended
complaint will be granted in part.
first and proposed second amended complaint do not contain
additional factual allegations. Accordingly, the summary of
the factual allegations previously provided will be
reproduced here. Rita Johnson owns and operates Rita's
Southern Soul Café in Saginaw, Michigan. Am. Compl. at
2. She alleges that, on May 7, 2017, the City of Saginaw
“arbitrarily and capriciously turned off the potable
water supply” to her café. Id. Johnson
was current on her payments at the time. Johnson believes
that her water was turned off “in a backhanded way to
shut down any use of Plaintiff's building.”
Id. At the filing of the original complaint, more
than four months had passed “without the restoration of
water services[, ] . . . any notice of any sort of hearing to
challenge the discontinuation of water services[, ] . . .
[and] without any opportunity or ability to end the
discontinuation of water services.” Id.
Johnson's counsel has made verbal demands that the City
of Saginaw and its employees turn on her water services, but,
as of the filing of the complaint, that had not happened.
asserts two causes of action. First, she alleges that
Defendants' actions have violated her substantive due
process rights. She argues that Defendants “arbitrarily
and/or capriciously ended Plaintiff's delivery of water
without any ability or opportunity to have any process or
procedure to halt the proposed depravation and/or seek its
restoration.” Id. at 3. She further alleges
that “[e]nding water services when there is no on-going
violations of City Ordinances or lack of payment makes the
continued suspension of water services arbitrary and/or
capricious, of such a character to shock the consciousness of
this Court; and/or is an unreasonable restriction is [sic]
without a valid rational basis.” Id. In Count
Two, Johnson alleges that her procedural due process rights
have been violated. Specifically, Defendants did not provide
her with notice before they ended her water services, and
they did not provide a pre- (or post-) deprivation hearing.
Rule of Civil Procedure 15(a)(2) provides that a party may
amend its pleading with the court's leave and that
“the court should freely give leave when justice so
requires.” Denial of a motion to amend is appropriate,
however, “‘where there is ‘undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the amendment,
etc.'” Morse v. McWhorter, 290 F.3d 795,
800 (6th Cir. 2002) (quoting Foman v. Davis, 371
U.S. 178, 182 (1962)).
amendment would be futile if the proposed amended complaint
does not state a claim upon which relief can be based. A
pleading fails to state a claim under Rule 12(b)(6) if it
does not contain allegations that support recovery under any
recognizable legal theory. Ashcroft v. Iqbal, 556
U.S. 662, 678, (2009). In considering a Rule 12(b)(6) motion,
the Court construes the pleading in the non-movant's
favor and accepts the allegations of facts therein as true.
See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). The pleader need not provide “detailed factual
allegations” to survive dismissal, but the
“obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence,
the pleading “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face” and “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678-79 (quotations and citation
their response opposing the motion for leave to file a second
amended complaint, Defendants explained that they have
“no objection to the addition of Mr. Stemple as a
Defendant in this case in his official capacity, but
object to Mr. Stemple and Defendant Cabello being sued in
their personal capacities.” Def. Resp. Br. at 2, ECF
No. 35 (emphasis in original). They argue that Johnson's
complaint alleges injuries arising out of actions that the
individual Defendants took in their official capacities as
employees of the City of Saginaw. For that reason, Defendants
argue that the motion for leave to amend should be
argument is based on a misapprehension regarding the nature
of § 1983 claims against municipal officials. The
Supreme Court has provided a helpful articulation of the
distinction between personal- and official-capacity suits:
Personal-capacity suits seek to impose personal liability
upon a government official for actions he takes under color
of state law. See, e.g., Scheuer v. Rhodes, 416 U.S.
232, 237-238, 94 S.Ct. 1683, 1686-1687, 40 L.Ed.2d 90 (1974).
Official-capacity suits, in contrast, “generally
represent only another way of pleading an action against an
entity of which an officer is an agent.” Monell v.
New York City Dept. of Social Services, 436 U.S. 658,
690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 6111978).
As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against the
entity. [Brandon v. Holt, 469 U.S. 464, 471-72
(1985).] It is not a suit against the official personally,
for the real party in interest is the entity. Thus, while an
award of damages against an ...