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Kanuszewski v. Michigan Department of Health and Human Services

United States Court of Appeals, Sixth Circuit

June 10, 2019

Adam Kanuszewski, et al., Plaintiffs-Appellants,
v.
Michigan Department of Health and Human Services; Nick Lyon; Sandip Shah; Sarah Lyon-Callo; Mary Kleyn; Michigan Neonatal BioBank, Incorporated, aka Michigan Neonatal Biorepository; Antonio Yancey, Defendants-Appellees.

          Argued: March 13, 2019

          Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:18-cv-10472-Thomas L. Ludington, District Judge.

         ARGUED:

          Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants.

          Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-Callo, and Mary Kleyn.

         ON BRIEF:

          Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellants.

          Thomas F. Cavalier, WAYNE STATE UNIVERSITY, Detroit, Michigan, for Appellee Antonio Yancey in his individual capacity. Jeremy C. Kennedy, Jerold Lax, PEAR SPERLING EGGAN & DANIELS, Ann Arbor, Michigan, for Appellees Neonatal BioBank and Antonio Yancey in his capacity as Director of the Michigan Neonatal BioBank, Inc. Aaron Levin, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellees Michigan Department of Health and Human Services, Nick Lyon, Sandip Shad, Sarah Lyon-Callo, and Mary Kleyn.

          Before: MERRITT, CLAY, and ROGERS, Circuit Judges.

          OPINION

          CLAY, Circuit Judge.

         Plaintiffs Adam and Ashley Kanuszewski, Shannon Laporte, and Lynnette Wiegand, individually and as parent-guardians to their minor children, appeal the district court's grant of a motion to dismiss Plaintiffs' claims filed by Defendants Michigan Department of Health and Human Services and its employees[1] being sued in their official and individual capacities; and Michigan Neonatal Biobank, Incorporated, and its Director, Dr. Antonio Yancey, sued in his official and individual capacities. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the district court's judgment and REMAND for further proceedings consistent with this opinion.

         BACKGROUND

         Plaintiffs' alleged constitutional violations concern Michigan's Newborn Screening Program ("NSP"). The NSP, which Michigan has operated since the 1960s, involves Defendant Michigan Department of Health and Human Services and its agents collecting blood samples (sometimes referred to as "blood spots") with a filter paper collection device known as a Dried Blood Spot card from nearly every newborn baby in Michigan, to test for various diseases. On April 30, 2018, Plaintiffs filed their First Amended Complaint for Injunctive and Declaratory Relief with Possible Money Damages for Constitutional Violations. According to the Complaint, [2] the facts are as follows:

         Plaintiffs Adam Kanuszewski and Ashley Kanuszewski have three minor children born over the last eleven years. Plaintiff Shannon Laporte has two minor children born over the last eleven years. Plaintiff Lynnette Wiegand has four minor children born over the last eight years. The Complaint alleges, with respect to the NSP, that blood is drawn from newborns without the consent or knowledge of the newborns' parents. Once collected, the blood samples are tested for over fifty maladies, disorders, or diseases. Defendants retain the samples after screening them for these diseases; the samples are transferred to Defendant Michigan Neonatal Biobank, a nonprofit corporation, under the custody and control of Defendant Dr. Antonio Yancey, where they are stored for future use by the state. Plaintiffs allege that Defendants lack parental consent to retain, transfer, store, or otherwise use the children's blood samples after they have been screened for diseases.[3]

         Plaintiffs allege that despite Defendants' assurances that all blood samples are secure and not identifiable to the individuals from whom they were taken, some samples kept in storage at the Neonatal Biobank have been given up pursuant to state court orders and some samples either have been or are in the process of being sold to third-party businesses and researchers. Plaintiffs do not allege that the children's specific blood samples have been sold or given up pursuant to a court order.

         Plaintiffs allege that Defendants violated their substantive due process rights by not allowing them to decide whether to accept or reject the medical procedure in question prior to the collection of their babies' blood. Plaintiffs allege that Defendants "deprived the Infants [of] their liberty interest in their guardians self-making informed personal and private medical procedure decisions without due process of law." (R. 26, Complaint, Page ID# 325.) Plaintiffs allege that collecting the blood samples constituted an unconstitutional search or seizure under the Fourth Amendment. Plaintiffs allege that the transfer of the samples to, and the samples' storage with, Defendant Neonatal Biobank constituted a further, ongoing seizure for which the Neonatal Biobank was "a state actor or . . . otherwise liable via civil conspiracy under 42 U.S.C. § 1983 despite being formed as a non-profit domestic corporation." (R. 26, Complaint, Page ID# 328, 329.)

         Plaintiffs seek declaratory judgment declaring Defendants' conduct violative of the Fourth and Fourteenth Amendments. Plaintiffs seek many forms of prospective injunctive relief, including the following: to halt "the illegal processes and procedures"; to halt continued possession and retention of all blood samples taken, transferred, or stored without informed consent; and to command Defendants "to destroy all data collected or extracted regarding the Infants, and return to the Parents all blood samples and spots of the Infants" that were obtained without informed consent. (R. 26, Complaint, Page ID# 329-32.) Finally, Plaintiffs seek damages in connection with Defendants' alleged constitutional violations.

         Defendants filed motions to dismiss Plaintiffs' claims. After briefing, the district court granted Defendants' motions to dismiss and dismissed Plaintiffs' Complaint with prejudice. Plaintiffs then filed this timely appeal.

         DISCUSSION

         Plaintiffs allege that Defendants, through their operation of and participation in the NSP, have violated and continue to violate their substantive due process rights because blood is drawn from the children and retained without parental consent. Plaintiffs also allege that Defendants have violated and continue to violate the Fourth Amendment rights of the children because drawing the children's blood constituted a search for which a warrant was required. Before we analyze whether Defendants have violated Plaintiffs' constitutional rights, we will address the question of Plaintiffs' standing to bring these claims.

          I. Standing

         Defendants argue that Plaintiffs lack standing to bring their claims.

         This Court reviews de novo determinations of standing. Shearson v. Holder, 725 F.3d 588, 592 (6th Cir. 2013). Because standing doctrine comes from Article III's case-or-controversy requirement, it is jurisdictional and must be addressed as a threshold matter. Nikolao v. Lyon, 875 F.3d 310, 315 (6th Cir. 2017). Standing requires Plaintiffs to show 1) that they have suffered an injury-in-fact that was 2) caused by Defendants' conduct and that 3) this Court can likely redress the injury with a decision for Plaintiffs. Id. at 315-16. Plaintiffs, as the parties invoking federal jurisdiction, bear the burden of proving the three elements of standing. Shearson, 725 F.3d at 592. At the pleadings stage, a plaintiff "must 'clearly . . . allege facts demonstrating' each element." Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)).

         The questions of standing in this case concern the injury-in-fact requirement. To satisfy this requirement, Plaintiffs must allege that they "have suffered an injury in fact, which is 'concrete, particularized, and actual or imminent.'" Shearson, 725 F.3d at 592 (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013)). The threat of future harm can satisfy this requirement as long as there is a "substantial risk" that the harm will occur. Clapper, 568 U.S. at 414 n.5 (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 153 (2010). By the same token, "'[a]llegations of possible future injury' are not sufficient." Id. at 409 (emphasis in original) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). The Supreme Court has noted that "a highly attenuated chain of possibilities [] does not satisfy the requirement that threatened injury must be certainly impending." Id. at 410.

         The distinction between past and ongoing or future harms is significant because the type of harm affects the type of relief available. Past harm allows a plaintiff to seek damages, but it does not entitle a plaintiff to seek injunctive or declaratory relief. This is because the fact that a harm occurred in the past "does nothing to establish a real and immediate threat that" it will occur in the future, as is required for injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 106 (1983). Obtaining standing for declaratory relief has the same requirements as obtaining standing for injunctive relief. National Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997) ("When seeking declaratory and injunctive relief, a plaintiff must show actual present harm or a significant possibility of future harm in order to demonstrate the need for pre-enforcement review.").

         Our standing analysis in this case is complicated because Plaintiffs raise numerous claims, each of which must independently meet the requirements for standing. Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017) ("[A] plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought." (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 734 (2008)). Further, within each claim we must determine whether the alleged harm affords Plaintiffs standing to seek injunctive and declaratory relief, or only damages. Accordingly, to properly analyze standing, we will disaggregate Plaintiffs' claims and the forms of relief sought. See Town of Chester, 137 S.Ct. at 1650.

         As a brief overview, there are two types of constitutional violations alleged (substantive due process and the Fourth Amendment) and two types of Plaintiffs (the parents and the children). Under the broader heading of substantive due process, Plaintiffs allege violations of the "children's right to refuse medical treatment" and of the "parents' own fundamental liberty interest in the care, custody and management of their children."[4] (Appellants' Br. 21 (emphasis added).) Plaintiffs also claim that Defendants violated the children's Fourth Amendment rights. With respect to the temporal aspect of their harm, Plaintiffs complain of the completed collection of the children's blood samples, as well as the ongoing storage of the samples and the risk of the future use of the samples by third parties.

         To simplify this complex analysis, we will divide it into four relevant questions: 1) Did the children suffer an injury-in-fact when blood samples were taken from them? 2) Did their parents suffer an injury-in-fact when their children's blood samples were taken? 3) Do the children suffer an injury-in-fact from either the ongoing storage of their samples or the risk of future use of the samples? 4) Do the parents suffer an injury-in-fact from either the ongoing storage of their children's samples or the risk of future use of the samples? The answers to these questions may determine whether and in what forms Plaintiffs may seek relief under each of their claims.

         1. Whether the children suffered an injury-in-fact when blood samples were taken from them

         Plaintiffs assert that the children have standing to raise claims for injunctive and declaratory relief and damages based on injuries that occurred when their blood was initially drawn and screened for diseases. Plaintiffs argue that the children's substantive due process right to have their parents direct their medical care was violated when Defendants drew a sample of the children's blood without first obtaining parental consent, and that this drawing of blood constituted an injury-in-fact affording the children standing to pursue their substantive due process claims. Plaintiffs also claim that the children's Fourth Amendment rights were violated when Defendants drew a sample of the children's blood because this constituted a warrantless search to which no exception to the warrant requirement applied, and that this drawing of blood constituted an injury-in-fact affording the children standing to pursue their Fourth Amendment claims. Because the blood samples have already been collected, the children's Fourth and Fourteenth Amendment claims arising out of the initial drawing of blood both pertain to a completed harm and therefore afford the children standing to seek only damages-not injunctive or declaratory relief-resulting from this alleged violation. See Lyons, 461 U.S. at 105.

         We begin our injury-in-fact analysis by noting that it can be very invasive to draw an individual's blood. Drawing blood involuntarily denies an individual bodily autonomy and interferes with one's bodily integrity. Missouri v. McNeely, 569 U.S. 141, 148 (2013). Drawing blood can also violate one's privacy by revealing sensitive, confidential information about that individual. See id.; Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989) (noting that "chemical analysis of urine, [or] blood, can reveal a host of private medical facts about an [individual], including whether he or she is epileptic, pregnant, or diabetic").

         With respect to their Fourth Amendment claims, Plaintiffs allege that the children's Fourth Amendment rights were violated when the state drew a blood sample from them and tested it for diseases. Our standing analysis does not consider the merits of Plaintiffs' claims; instead, we must assume that "if proved in a proper case," Defendants' alleged practices "would be adjudged violative of the [Plaintiffs'] constitutional rights." Warth, 422 U.S. at 502. The completed harm from Defendants' alleged Fourth Amendment violation affords the children standing to seek damages, but because there is no allegation that the state will once again collect blood from the children in the future, the children lack standing to pursue a claim for injunctive or declaratory relief. See Lyons, 461 U.S. at 105 (denying standing to pursue injunctive relief because the fact "[t]hat Lyons may have been illegally choked by the police . . ., while presumably affording Lyons standing to claim damages . . ., does nothing to establish a real and immediate threat that he would again [be illegally choked]").

         With respect to Plaintiffs' substantive due process claim, this same reasoning applies. The completed harm from Defendants' alleged substantive due process violation affords the children standing to seek damages, but there is no allegation of a real or immediate threat that the state will do so again.

         Thus, with respect to their Fourth Amendment and substantive due process claims concerning the initial drawing of blood, the children have standing to pursue damages but not injunctive or declaratory relief.

         2. Whether the parents suffered an injury-in-fact when their children's blood samples were taken

         Plaintiffs similarly assert that the parents have standing to raise claims for injunctive and declaratory relief and damages based on injuries that occurred when their children's blood was initially drawn and screened for diseases. Plaintiffs argue that the parents' substantive due process right to direct their children's medical care was violated when Defendants drew a sample of the children's blood without first obtaining parental consent, and that this drawing of blood constituted an injury-in-fact affording the parents standing to pursue their substantive due process claims. But this is a completed harm that only gives the parents standing to pursue damages resulting from this alleged violation. See Lyons, 461 U.S. at 105.

         If parents have a substantive due process right to make decisions relating to their children's medical care, then the parents in this case have suffered an injury-in-fact from having been denied the exercise of the right, which affords them standing to pursue damages. However, the parents cannot seek prospective relief because they do not allege a real or immediate threat that the state will repeat the alleged violation. Perhaps the parents could have argued (although they did not) that the threat remains because they have the ability to have more children, who would at birth be subject to having their blood drawn, which would again infringe upon the parents' substantive due process rights. However, even if this argument were raised, without further description of the parents' concrete reproductive plans it would be foreclosed by the Supreme Court's decision in Lujan v. Defenders of Wildlife. 504 U.S. 555, 564 (1992) ("'[S]ome day' intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the 'actual or imminent' injury that our cases require.").

         Thus, like the children, the parents have standing to pursue damages, but not injunctive or declaratory relief with regard to the initial taking of the blood samples from the children.

         3. Whether the children suffer an ongoing injury-in-fact from the storage of their samples or face a substantial risk of future harm from the use of their samples

         Plaintiffs argue that the children have standing to raise claims for injunctive and declaratory relief and damages based on ongoing injuries and the threat of further injuries resulting from the transfer and storage of their blood samples, which they allege violated the Fourth and Fourteenth Amendments. Because the storage of the blood samples represents an ongoing violation, the children will be able to pursue all three forms of relief, i.e., injunctive, declaratory, and damages, in connection with both their Fourth and Fourteenth Amendment claims.

         We begin with Plaintiffs' claims relating to the children's Fourth Amendment rights. Plaintiffs allege violations of the children's Fourth Amendment rights in connection with Defendants' transfer and storage of the blood samples. Assuming that the storage is a Fourth Amendment violation, it is the sort of actual, ongoing harm that affords a plaintiff standing to sue for damages, as well as injunctive and declaratory relief. See National Wildlife Federation v. U.S. Army Corps of Engineers, 170 F.Supp.3d 6, 14 (D.D.C. 2016) ("Still viable at this juncture is the conservation groups' claim of an actual ongoing harm to their recreational and aesthetic interests, which supports standing . . . ."). Thus, Plaintiffs have alleged an injury-in-fact sufficient for standing to seek all three types of relief.

         With respect to Plaintiffs' claims relating to the children's substantive due process rights, Plaintiffs assert two types of injury. One asserted injury is too speculative to constitute an injury-in-fact for prospective relief, but the ...


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