MacDonald v. City of Detroit

434 F.Supp.3d 587

David MACDONALD, Plaintiff,

v.CITY OF DETROIT, Detroit Building Authority, and Detroit Land Bank Authority, Defendants.

Case No. 19-12183

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

Signed January 16, 2020

Cindy Rhodes Victor, Kus Ryan & Associates, PLLC, Auburn Hills, MI, for Plaintiff.

Hallam Stanton, City of Detroit, James D. Noseda, Detroit City Law Department, Kevin J. Campbell, Floyd E. Allen & Associates, P.C., Monica N. Hunt, The Allen Law Group, Detroit, MI, Darryl Bressack, Fink Bressack, David H. Fink, Nathan J. Fink, Fink Associates Law, Bloomfield Hills, MI, for Defendants.

OPINION AND ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO DISMISS

ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff 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.

II. BACKGROUND

The 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 demolition.

Once a 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 individual house.

After 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.

In 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 ¶ 34.)

On 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.)

On 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.

Approximately 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.)

Plaintiff 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 demolition-related capacity. This policy is effective immediately, and shall remain in effect until rescinded by me.

(ECF No. 17-7, PageID.253.)

The letter was sent to all contractors involved in demolition work under the Program. Plaintiff claims that he was not afforded a hearing prior to the issuance of stop-work order, which he claims violated of the DBA's contractor discipline policy. Additionally, Plaintiff alleges that neither the DBA or the DLBA contacted him prior to issuing the stop-work order.

On November 29, 2018, Plaintiff entered into a voluntary separation agreement with Smalley Construction. (ECF No. 17-11.) Thereafter, he filed the instant lawsuit.

III. STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for failure to state a claim upon which relief may be granted. Under the Rule, the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded factual allegations as true. Barber v. Miller , 809 F.3d 840, 843 (6th Cir. 2015).

Federal Rule of Civil Procedure 8 requires a plaintiff to present in the complaint "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must provide sufficient facts to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that defendant acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "Threadbare 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, 127 S.Ct. 1955 ).

"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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory." Boland v. Holder , 682 F.3d 531, 534 (6th Cir. 2012) (emphasis removed) (citing League of United Latin Am. Citizens v. Bredesen , 500 F.3d 523, 527 (6th Cir. 2007) ). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

In reviewing a motion to dismiss, the court may consider "any exhibits attached [to the complaint], public records, items appearing in the record of the case and exhibits attached to defendant's motion to dismiss so long as they are referred to in the Complaint and are central to the claims...