United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART DEFENDANTS'
MOTIONS TO DISMISS
H. CLELAND UNITED STATES DISTRICT JUDGE
David MacDonald sues Defendants City of Detroit (the
“City”), Detroit Building Authority
(“DBA”), and Detroit Land Bank Authority
(“DLBA”) alleging various constitutional
violations stemming from Plaintiff's involvement in the
Detroit Demolition Program (“DDP” or the
“Program”). Currently pending before the court
are three motions to dismiss the amended complaint, one filed
by each Defendant. The motions have been fully briefed. Upon
review of the parties' filings, the court concludes that
a hearing is not necessary and that the motions can be
decided on the briefs. See E.D. Mich. LR 7.1(f)(2).
For the reasons explained, below, the court will grant in
part Defendants' motions and will dismiss Count I (Due
Process), Count II (Equal Protection), and Count IV (Invasion
of Privacy) of the amended complaint.
following facts are drawn from the amended complaint and the
documents attached thereto. In 2014, Detroit Mayor Mike
Duggan initiated the Program to help combat blight within the
City by demolishing abandoned houses. The Program is
administered by the DLBA, which is overseen by the DBA. The
Program relies on demolition contractors and requires
contractors to test and remediate homes for asbestos prior to
contract has been awarded to a demolition contractor, either
the City or the DLBA will issue a Notice to Proceed, and the
specific house is scheduled for asbestos abatement. The
asbestos abatement process is tracked using the website
Salesforce. Each property with the Program has a unique
Salesforce webpage, and all parties involved in the
demolition process can access the Salesforce website for each
the house is abated for asbestos, it is scheduled for a
“Post Abatement Verification” (“PAV”)
inspection, and the inspection date is added to Salesforce.
If the PAV inspection report indicated that the asbestos has
been totally abated, the contractor may schedule a demolition
date for the house, also referred to as a “Planned
Knock Date.” The Planed Knock Date must be entered into
Salesforce as must the date on which the remnants are hauled
away and the date on which the lot is backfilled. A final
inspection occurs after the grading to determine whether the
demolition was properly completed.
August 2017, Plaintiff began working for Den-Man contractors,
a demolition subcontractor for the Program. While employed at
Den-Man, Plaintiff “was critical” of another
contractor, BBEK Environmental and its owner, Kevin Woods,
for their handling of asbestos abatement work for the
Program. Plaintiff alleges that he voiced his concerns about
BBEK Environmental to Defendants. (ECF No. 17, PageID.165,
¶¶ 33- 39.) Woods has since been banned from the
Program for falsifying Asbestos Clearance Reports and is
currently being “prosecuted” by the Michigan
Department of Environmental Quality. (Id. at ¶
March 5, 2018, Den-Man hired Renee Alter as an administrative
assistant. She was eventually tasked with scheduling
demolition work for Den-Man. Several months later, Den-Man
also hired Dennis Kolorov to manage backfilling operations.
Shortly thereafter, Plaintiff began looking for other
employment. He asserts that his responsibilities were
transitioned to Alter on September 10, 2018, but also alleges
that he continued to manage backfilling operations for
Den-Man as of September 17, 2018. (ECF No. 17, PageID.166-68
¶¶ 44, 55.)
September 10, 2018, Alter sent a list of houses scheduled to
be demolished that week to Plaintiff, which included a house
located at 14444 Flanders. The house at 14444 Flanders
contained unabated asbestos. According to Plaintiff, had
Alter entered the address into the Salesforce website
pursuant to the City's policy, Salesforce would not have
allowed a demolition date for 14444 Flanders to be scheduled.
However, the property was not entered into Salesforce prior
to demolition, and 14444 Flanders was demolished on September
13, 2018. Plaintiff asserts that he had no involvement in the
decision to demolish 14444 Flanders.
one hour after the demolition, Alter informed Plaintiff that
14444 Flanders had not yet been abated for asbestos before
demolition. Plaintiff “immediately” advised David
Holman of Den-Man that the property had not been properly
abated. Holman reported the incident to the DBA in an email
dated October 26, 2018. The email reads as follows:
I regret to inform you that the 1444 Flanders [m]ay have been
wrecked and completed without removal of asbestos.
David Macdonald [sic] who was in charge of my demolition
operation and scheduling demolished this house on 9-13-18.
His last day of work was 9-14-18. I have no knowledge of any
abatement work that was done prior to demolition.
I was unaware that this job was scheduled or completed until
after [D]ave [M]c[D]onald had left.
(ECF No. 17-5, PageID.233.)
began working for another contractor, Smalley Construction,
on September 17, 2018. In response to the October 26 email
from Holman, the Deputy Director of the DBA, Timothy
Palazzolo, issued a stop-work order to Smalley Construction,
Plaintiff's new employer. (ECF No. 17-7, PageID.240).
Attached to the stop-work-order was a letter dated November
6, 2018, from the Director and Health Officer of the
City's Health Department, Joneigh S. Khaldum. In relevant
part, the letter stated:
It has come to my attention that a home located at 14444
Flanders in the City of Detroit was demolished without proper
environmental abatement. I am [sic] receipt of documentation
indicating that Mr. David MacDonald- then employed by Den-Man
construction-either ignored or overlooked explicit
instructions from an abatement contractor that stated the
following in regards to 1444 Flanders: “DO NOT
WRECK” and “bad survey.” . . .
Accordingly, pursuant to my authority to issue “rules
and polices necessary for enforcement” of any laws
pertaining to “public health and safety”
(see Detroit City code 24-1-1.2), I am hereby
declaring that it is the policy of the City of Detroit Health
Department that no demolition within the City limits shall be
conducted by any company, firm, or LLC that employs Mr. David
MacDonald in a ...