JOHN DOE V STATE OF MICHIGAN
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN DOE, Minor, by Next Friend, Mother of
JOHN DOE, ,
UNPUBLISHED
December 8, 2009
Plaintiff-Appellant,
v
STATE OF MICHIGAN, DEPARTMENT OF
HUMAN SERVICES, and DEPARTMENT OF
HUMAN SERVICES WEXFORD-MISSAUKEE
COUNTY,
No. 285274
Court of Claims
LC No. 07-000119-MM
Defendants-Appellees.
Before: Donofrio, P.J., and Wilder and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order of the Court of Claims granting summary
disposition to defendants under MCR 2.116(C)(7) (governmental immunity) and (C)(8) (failure
to state a claim). We affirm.
This case involves an alleged sexual assault in the public restroom of a public beach of
plaintiff by another minor who was a ward of the State.
Plaintiff brought the instant action against defendants, seeking monetary damages, and
alleging that defendants failed to adequately supervise the ward’s foster parent or adequately
inform the ward’s foster parent that a court order prohibited the ward from associating with
minors without supervision, and that such failure constituted a “state-created danger” in violation
of plaintiff’s substantive due process rights guaranteed under the Michigan Constitution, art 1,
§ 17, and a violation of plaintiff’s substantive due process rights guaranteed under the Michigan
Constitution by virtue of custom and policy. We review constitutional questions and the grant of
a motion for summary disposition de novo. Travelers Insurance Co v Detroit Edison Co, 465
Mich 185, 205; 631 NW2d 733 (2001); People v Geno, 261 Mich App 624, 627; 683 NW2d 687
(2004).
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Plaintiff requests that we recognize the viability of the state-created danger doctrine
under the Due Process Clause of Michigan’s Constitution, Const 1963, art 1, § 17, and thus
credit his cause of action. This doctrine provides that the Due Process Clause1 of the United
States Constitution protects individuals from private acts of violence in so far as the state caused
or greatly increased the risk of such violence through an affirmative state action. Kallstrom v
City of Columbus, 136 F3d 1055, 1066 (CA 6, 1998). Substantive due process claims are
traditionally remedied by means of 42 USC 1983, when a plaintiff demonstrates a deprivation of
a federal constitutional or federal statutory right and that the violation was committed by a
person acting under the color of state law. See, e.g., Harbin-Bey v Rutter, 420 F3d 571, 575 (CA
6, 2005).2 “The Due Process Clause of the Fourteenth Amendment does not impose upon the
state an affirmative duty to protect its citizens against private acts of violence, but rather, places
limitations on affirmative state action that denies life, liberty, or property without due process of
law.” Kallstrom, supra at 1065. Imposition of liability under the state-created danger doctrine
requires a showing of (1) an affirmative act that creates or increases the risk of private acts of
violence, (2) a special danger to the victim as distinguished from the public at large, and (3)
deliberate indifference on the part of the state. McQueen v Beecher Community School, 433 F3d
460, 464, 470 (CA 6, 2006).
It is unnecessary for us to reach the issue of whether such a cause of action is or should
be recognized in Michigan, because even if the state-created danger test was applicable,
defendants’ actions fail to satisfy its requisites. Plaintiff alleges that defendant’s failure to
adequately supervise the ward’s foster parent and its alleged failure to inform her of a court order
prohibiting the ward from associating with minors without supervision constitute affirmative
actions. These are clearly alleged failures to act, and the “failure to act is not an affirmative act
under the state created danger theory.” Cartwright v City of Marine City, 336 F3d 487, 493 (CA
6, 2003).
Further, there was no foreseeable special danger to plaintiff in particular, because he was
at a public beach when the alleged assault occurred, and the State’s actions did not put him at
any special risk as opposed to the public at large. See Jones v Reynolds, 438 F3d 685, 697-698
(CA 6, 2006) (a person injured as a result of a drag race that police officers permitted to take
place was found to not have been an identifiable potential victim because she was one of 150
people present).
Alternatively, plaintiff argues that defendants had a custom or policy of deliberately
withholding information about foster children’s history or propensity for sexual abuse from
foster parents, which in turn resulted in a violation of plaintiff’s substantive due process rights.
Governmental immunity is not available in a state court action alleging that a state governmental
agency, by custom or policy, violated a right conferred by the Michigan Constitution. Jones v
Powell, 462 Mich 329, 336; 612 NW2d 423 (2000); Smith v Dep’t of Public Health, 428 Mich
1
US Const, Am XIV.
2
Section 1983 does not provide a remedy for a violation of the Michigan Constitution. Mettler
Walloon, LLC v Melrose Twp, 281 Mich App 184, 196; 761 NW2d 293 (2008).
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540, 544; 410 NW2d 749 (1987). “‘A claim for damages against the state arising from violation
by the state of the Michigan Constitution may be recognized in appropriate cases.’” Powell,
supra at 336, quoting Smith, supra at 544 (emphasis added by Jones).3
We conclude, however, that we need not address the issue of whether a damages remedy
is inferred by the state Constitution in this particular case, because the facts alleged by plaintiff
do not establish a custom or policy that violates constitutional rights. Plaintiff alleges that
defendants inadequately train and supervise their employees and foster parents and improperly
place children in foster care. However, the factual allegations in the complaint are wholly
conclusory and only recount the facts as they relate to the incident between the instant parties,
rather than a wide-ranging policy or custom that the State and its agencies follow. Plaintiff fails
to plead the existence of an officially executed policy or specific custom by the State, the identity
of the policy maker, the course of action taken by the State in adopting the official policy or
custom, or that the identified course of action was the policy maker’s deliberate choice from
among various alternatives. Monell v New York Dept of Soc Services, 436 US 658, 690-691; 98
S Ct 2018; 56 L Ed 2d 611 (1978). Accordingly, the trial court did not err in concluding that
plaintiff failed to state a claim upon which relief could be granted.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
3
Jones acknowledged that because a claimant can sue a municipality under 42 USC 1983, there
is no need to infer a damages remedy for violation of the state Constitution allegedly committed
by a municipality or municipal actor. Jones, supra at 337. “Smith only recognized a narrow
remedy against the state on the basis of the unavailability of any other remedy.” Jones, supra at
337. “Our Supreme Court has held that there is no cause of action for damages against entities
other than the state for a violation of state constitutional rights.” Bennett v City of Detroit Police
Chief, 274 Mich App 307, 316 n 3; 732 NW2d 164, 170 (2006), citing Jones, supra at 335-337.
Therefore, as against the Department of Human Services of Wexford-Missaukee County,
plaintiff has failed to state a claim on which relief can be granted. Jones, supra at 337; Bennett,
supra at 316 n 3.
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