Heather Kerchen; Lori Kerchen; Dale Kerchen v. University of Michigan; James H. Woods

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0103p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HEATHER KERCHEN; LORI KERCHEN; DALE KERCHEN,
Plaintiffs-Appellees,
v.
UNIVERSITY OF MICHIGAN; JAMES H. WOODS,
Defendants-Appellants,
CHRISTIAN RAPHALIDES; [UNKNOWN] DOES,
Defendants.
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No. 23-1718
Appeal from the United States District Court for the Eastern District of Michigan at Flint.
No. 4:22-cv-12492—Shalina D. Kumar, District Judge.
Argued: March 19, 2024
Decided and Filed: May 6, 2024
Before: COLE, CLAY, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ARGUED: Brian M. Schwartz, MILLER CANFIELD, PADDOCK AND STONE, P.L.C.,
Detroit, Michigan, for Appellants. Dustyn K. Coontz, COONTZ LAW, Lansing, Michigan, for
Appellees. ON BRIEF: Brian M. Schwartz, Lawrence T. Garcia, Sydney G. Rohlicek,
MILLER CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellants.
Dustyn K. Coontz, COONTZ LAW, Lansing, Michigan, William B. Norman, DEFENDING
OHIO, Berea, Ohio, for Appellees. Kyla L. Barranco. OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Amicus Curiae.
>

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_________________
OPINION
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CLAY, Circuit Judge. Plaintiffs Heather, Lori, and Dale Kerchen filed a complaint
against Defendants the University of Michigan and Dr. James Woods, alleging violations under
42 U.S.C. § 1983 and Michigan state law. Defendants appeal the district court’s order denying
their motion to dismiss without prejudice and ordering limited discovery on whether this action
is barred by the statutes of limitations applicable to Plaintiffs’ claims. For the reasons stated
below, we REVERSE the district court’s denial of Defendants’ motion to dismiss, DISMISS
various claims for lack of jurisdiction as specified below, and REMAND for proceedings
consistent with this opinion.
I. BACKGROUND
A. Factual Background
On January 25, 2000, police found Todd Kerchen (“Todd”)1 dead in his home. The night
before Todd’s death, he and his girlfriend had snorted a white powder, which Todd’s girlfriend
in later interviews referred to as either “Crystal China,” “White China,” or “China White.”
Compl., R. 1, Page ID #6, 10–11. Todd’s autopsy revealed that he had ingested a lethal dose of
fentanyl the night he died.
The Washtenaw County Sheriff’s Department (“WCSD”) investigated Todd’s death.
Todd’s girlfriend told WCSD detectives that Todd had likely gotten the drugs that he used the
night he died from Christian Raphalides. The complaint alleges that Raphalides provided the
same “China White” drug to a student at the University of Michigan in September 1998, more
than a year before Todd’s death. That student also died from an overdose, although the police
investigating the student’s death reported that he had overdosed on cocaine, not fentanyl.
1To avoid confusion with Plaintiffs, who are Todd Kerchen’s family members, we will refer to him as
“Todd.”

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Although the City of Ann Arbor Police Department investigated Raphalides in connection with
this earlier death, the Washtenaw prosecutors declined to charge Raphalides.
The complaint alleges that Raphalides obtained the fentanyl that killed Todd from a
University of Michigan pharmacology lab where Raphalides worked until November 1999. This
lab tested the effects of controlled substances on animals. At the lab, Raphalides had access to
multiple controlled substances, including fentanyl in powder form. Throughout Raphalides’
employment, Defendant Dr. James Woods led and oversaw the lab.
WCSD detectives interviewed Woods twice in connection with the investigation into
Todd’s death. In those interviews, Woods gave the detectives a detailed account of how the lab
distributed and monitored the controlled substances it used. The lab kept thousands of different
types of controlled substances on hand. These substances were kept in a locked safe for 22 hours
each day. For two hours a day—one hour in the morning and one hour in the afternoon—
employees could remove the drugs they needed for their work from the unlocked safe.
Employees weighed the amount of drugs that they needed and wrote down the type and quantity
of the drugs that they removed. “Ordinarily,” Woods or his assistant would oversee these hour-
long processes, “[b]ut not always.” Id. at Page ID #20.
In interviews with WCSD detectives concerning Todd’s death, Woods acknowledged that
it would be “common” for employees to keep controlled substances in their lockers at the lab.
Id. Indeed, Woods led the detectives to Raphalides’ locker, where they discovered 28 vials of
PCP, morphine, and other drugs. No one had opened the locker since Raphalides left the lab
almost four months earlier. The complaint also describes certain policies that the lab failed to
implement to safely manage the distribution of controlled substances. For example, the
complaint alleges that the lab did not take a regular inventory of the drugs removed from the
safe, and did not have a procedure in place to reconcile the amount of drugs removed from the
safe with the type and quantity of drugs used in procedures in the lab.
The complaint further alleges multiple facts supporting the conclusion that the fentanyl
that killed Todd came from the University of Michigan lab. For example, it alleges that the glass
vial containing white powder found on Todd’s coffee table after his death resembled the glass

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vials containing drugs used by the lab. Specifically, all the vials had a rubber stopper with an
aluminum clasp over the stopper. When WCSD detectives showed Woods a photo of the glass
vial found on Todd’s coffee table, he confirmed that the vial was “exactly” the same as one they
would use in the lab. Id. at Page ID #18.
To be sure, Woods also told the detectives that these types of glass vials would be
common in any research lab. However, the complaint alleges that specific labeling on the vial
found at Todd’s home further indicated that the fentanyl that killed him came from the
University of Michigan lab. The lab employed a unique labeling procedure whereby employees
would write the drug name, the date it was logged out of the safe, and the employee’s initials on
the aluminum clasp. The clasp found at Todd’s home listed the date “6-2-94,” the abbreviation
“Fent. 100.56mg,” and the initials “DJ.” Id. at Page ID #21. Woods told the detectives that the
initials “DJ” belonged to David Jewett, a former employee of the lab who supervised Raphalides.
Id. According to the lab’s logs, on June 2, 1994—the date listed on the vial found in Todd’s
home—Jewett logged out 100.4 milligrams of fentanyl.2 Woods also confirmed that the fentanyl
found in Todd’s home had the same molecular structure as the fentanyl used in the lab.
The complaint alleges that the investigation into Todd’s death stalled after WCSD
detectives’ second interview with Woods. Although the detectives attempted to contact
Raphalides, they were unable to locate him. The detectives never informed the Kerchen family
about their conversations with Woods, or the facts that indicated that the fentanyl that killed
Todd could have originated from the University of Michigan lab. Heather Kerchen, Todd’s
sister, discovered the connection between the University lab and the investigation into Todd’s
death only after independently investigating Todd’s death herself. She did not receive
documents detailing the detectives’ conversations with Woods until October 19, 2020.
B. Procedural History
Based on the facts above, Plaintiffs filed a complaint on October 17, 2022 against
Raphalides, the University, Woods, and other unknown Defendants, listed as “Unknown Does.”
2This is 0.16 milligrams fewer than the amount listed on the vial found in Todd’s home; but, as the
complaint alleges, the lab had no procedure in place to ensure that the amount of drugs withdrawn from the safe
matched the amount logged.

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Compl., R. 1, Page ID #1. Plaintiffs sued both Raphalides and Woods in their individual and
official capacities.3 Plaintiffs alleged six independent counts against all Defendants. First, they
asserted a Fourteenth Amendment substantive due process claim under 42 U.S.C. § 1983,
alleging that the Defendants deprived Todd of his life. They alleged that the University and
Woods’ lax policies surrounding the use of controlled substances in the lab and Raphalides’
exploitation of these lax policies “shocked the conscience.” Compl., R. 1, Page ID #29. Second,
Plaintiffs asserted a wrongful death claim under Michigan state law against all Defendants.
See M.C.L. § 600.2922. Finally, Plaintiffs asserted multiple counts under Michigan’s Drug
Dealer Liability Act (“DDLA”), which creates a civil cause of action for injuries caused by
illegal drug use. See M.C.L. § 691.1601(2).
The University and Woods moved to dismiss the complaint pursuant to Rules 12(b)(1)
and 12(b)(6) of the Federal Rules of Civil Procedure. They primarily argued that all claims
against them were barred by the statutes of limitations because Todd died more than twenty
years before Plaintiffs filed their complaint. They further argued that the complaint had not
sufficiently alleged any fraudulent concealment of facts by Defendants that may permit equitable
tolling of the statutes of limitations. Defendants also contended that they were immune from suit
under certain claims based on various theories of immunity. Specifically, they argued that the
University and Woods in his official capacity were entitled to sovereign immunity for all claims,
and that Woods in his individual capacity was entitled to qualified immunity for Plaintiffs’
§ 1983 claims and governmental immunity for Plaintiffs’ state law wrongful death claim.
Finally, they argued that Plaintiffs had failed to state a claim for relief under the Michigan
DDLA.
In supplemental briefing supporting their motion to dismiss, Defendants presented a
second ground to dismiss the state law claims asserted against the University and Woods in his
official capacity. They argued that Plaintiffs’ failure to give notice to the state of Michigan
before filing suit required dismissal of these claims. Michigan law requires a party bringing a
personal injury claim against the state to provide notice of the suit within six months of the
3Although a summons has been issued for Raphalides, he has not appeared in this lawsuit, and he is not a
party to this appeal.

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action’s accrual. See M.C.L. § 600.6431(1), (4). Previously, a panel of the Michigan Court of
Appeals held that this statutory notice requirement only applied to cases brought against the state
in the Michigan Court of Claims. See Tyrrell v. Univ. of Mich., 966 N.W.2d 219, 228 (Mich. Ct.
App. 2020). In two cases decided after Defendants filed their motion to dismiss, however, the
Michigan Supreme Court held that this notice requirement applied to all cases brought against
the state, which Defendants argued included cases brought in federal court. See Christie
v. Wayne State Univ., 993 N.W.2d 203, 209 (Mich. 2023); Elia Cos. v. Univ. of Mich. Regents,
993 N.W.2d 392, 395 (Mich. 2023).
The district court declined to dismiss Plaintiffs’ state law claims asserted against the
University and Woods in his official capacity for failure to comply with the statutory notice
requirement. It reasoned that the two new cases decided by the Michigan Supreme Court did not
retroactively bar lawsuits filed before the cases were decided. The district court also ordered
limited discovery on whether Defendants fraudulently concealed information from Plaintiffs
such that Plaintiffs could benefit from equitable tolling. The district court otherwise denied the
motion to dismiss without prejudice and did not rule on any other arguments raised by
Defendants in their motion to dismiss, including Defendants’ immunity arguments. Defendants
timely filed an interlocutory appeal from the district court’s denial of the motion to dismiss.
II. DISCUSSION
A. Jurisdiction
We may only review “final decisions” from district courts, which generally do not
include the decision to deny a motion to dismiss. 28 U.S.C. § 1291. Nevertheless, a denial of
sovereign or qualified immunity that turns purely on issues of law is a collateral order that
constitutes an appealable “final decision.” Mitchell v. Forsyth, 472 U.S. 511, 525, 530 (1985);
see also P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
A denial of immunity at the motion to dismiss stage presents a pure question of law. Ashcroft
v. Iqbal, 556 U.S. 662, 672 (2009).
In this case, although the district court did not address the merits of Defendants’
sovereign or qualified immunity defenses, its decision to deny the motion to dismiss and order

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subsequent discovery constitutes a collateral order over which this Court has jurisdiction.
See Skousen v. Brighton High Sch., 305 F.3d 520, 525–26 (6th Cir. 2002) (finding jurisdiction to
review denial of qualified immunity when district court denied a motion for summary judgment
without prejudice and ordered discovery); Summers v. Leis, 368 F.3d 881, 886–87 (6th Cir.
2004) (same); see also Smith v. Leis, 407 F. App’x 918, 926 n.6 (6th Cir. 2011) (applying the
same logic to sovereign immunity).
Although we have jurisdiction to review Defendants’ arguments that they are entitled to
sovereign and qualified immunity, our jurisdiction to review the other issues raised in this appeal
is less clear. Defendants ask us to exercise pendent appellate jurisdiction over three other issues,
namely: (1) whether Michigan governmental immunity requires dismissal of Plaintiffs’ state law
wrongful death claim against Woods in his individual capacity; (2) whether Michigan’s statutory
notice requirement requires dismissal of all state law claims against the University and Woods in
his official capacity; and (3) whether all claims are time barred by the respective statutes of
limitations.
In its discretion, this Court may exercise pendent jurisdiction over claims that are
“inextricably intertwined” with matters over which the Court has appellate jurisdiction. Williams
v. Maurer, 9 F.4th 416, 428 (6th Cir. 2021) (citation omitted). Issues in an appeal “are not
‘inextricably intertwined’ merely because they ‘overlap in some respects.’” Id. at 429 (quoting
Crockett v. Cumberland Coll., 316 F.3d 571, 579 (6th Cir. 2003)). Instead, pendent jurisdiction
is proper only “when the appellate resolution of the collateral appeal necessarily resolves the
pendent claim as well.” Crockett, 316 F.3d at 579 (emphasis in original) (quoting Moore v. City
of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)). “The ‘inextricably intertwined’ requirement
of pendent appellate jurisdiction is not meant to be loosely applied as a matter of discretion.”
Chambers v. Ohio Dep’t of Hum. Servs., 145 F.3d 793, 797 (6th Cir. 1998). Rather, the
discretion granted to this Court in exercising pendent jurisdiction is the ability to decline to hear
claims even when they are inextricably intertwined with appealable issues. Archie v. Lanier,
95 F.3d 438, 443 (6th Cir. 1996).
Plaintiffs do not oppose Defendants’ jurisdictional arguments. But we have an
independent obligation to assure ourselves of our own jurisdiction. See Bonner v. Perry, 564

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F.3d 424, 426 (6th Cir. 2009). Defendants are correct that we have jurisdiction over their claim
of governmental immunity and over Defendants’ statutory notice arguments, although not under
the doctrine of pendent appellate jurisdiction as neither presents an issue “inextricably
intertwined” with Defendants’ federal immunity arguments. Williams, 9 F.4th at 428. Instead,
for the reasons discussed below, we have independent jurisdiction to review the district court’s
decision on these claims as denials of immunity under Michigan law. Defendants are incorrect
that we may exercise pendent jurisdiction over their statutes of limitations arguments.
Defendants claim that Woods in his individual capacity is entitled to governmental
immunity under M.C.L. § 691.1407. We have held that a denial of governmental immunity
under M.C.L. § 691.1407 is immediately appealable as a final order. See Smith v. County of
Lenawee, 600 F.3d 686, 689 (6th Cir. 2010). Accordingly, we have jurisdiction to review this
claim because, in denying the motion to dismiss, which raised Woods’ entitlement to
governmental immunity, the district court implicitly denied Woods this immunity.
For similar reasons, we also have jurisdiction over Defendants’ arguments that Plaintiffs
failed to comply with the statutory notice requirements set forth in M.C.L. § 600.6431. The
Michigan Supreme Court has held that the failure to comply with the statutory notice provision
means that a state agency, such as the University of Michigan, or a state employee, such as
Woods, remains entitled to governmental immunity. See Fairley v. Dep’t of Corr., 871 N.W.2d
129, 133 (Mich. 2015). And we have long held that we have jurisdiction to review the denial of
Michigan governmental immunity. Livermore ex rel Rohm v. Lubelan, 476 F.3d 397, 408 (6th
Cir. 2007). Because, if applicable, Plaintiffs’ failure to comply with the statutory notice
requirement would mean that the University and Woods in his official capacity are entitled to
governmental immunity, we have jurisdiction to review the district court’s denial of the motion
to dismiss on this ground.
We do not, however, have jurisdiction to review Defendants’ statutes of limitations
arguments because they are not inextricably intertwined with the reviewable issues on appeal.
The parties dispute whether Plaintiffs are entitled to equitable tolling of the statutes of
limitations. Their arguments focus on whether Plaintiffs have sufficiently pleaded that any
Defendants fraudulently concealed information from Plaintiffs. This dispute has no conceivable

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overlap with the properly reviewable issues on appeal, and we do not have pendent jurisdiction
over these claims.
Defendants do not meaningfully argue that the statutes of limitations arguments have any
relationship to the reviewable issues on appeal. Instead, they—and Plaintiffs—emphasize that
we should exercise pendent jurisdiction for the sake of judicial economy. Defendants cite to
one case from this Court, which, when exercising pendent jurisdiction, stated that “judicial
economy would counsel hearing these two issues together.” O’Bryan v. Holy See, 556 F.3d 361,
377 n.7 (6th Cir. 2009). But in that case, the Court chose to exercise pendent jurisdiction over an
issue on which the reviewable issue “hinge[d].” Id. It did not extend the doctrine of pendent
jurisdiction to permit this Court to hear claims primarily in the interest of judicial economy.
Because Defendants’ arguments relating to the statutes of limitations are not inextricably
intertwined with reviewable issues, we may not consider them in this appeal.
B. Standard of Review
This Court reviews a district court’s denial of a motion to dismiss de novo. Marvaso
v. Sanchez, 971 F.3d 599, 605 (6th Cir. 2020). “In reviewing the motion to dismiss, we construe
the complaint in the light most favorable to the plaintiff, accept all well-pleaded factual
allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.”
Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016).
C. Federal Claims
On appeal, Defendants argue that the district court erred in denying sovereign immunity
to the University and Woods in his official capacity, and qualified immunity to Woods in his
individual capacity. As an initial matter, the district court should have ruled on Defendants’
immunity defenses before ordering discovery. The district court relied on this Court’s decision
in Nair v. Oakland County Community Mental Health Authority to defer ruling on Defendants’
sovereign immunity arguments until after limited discovery, but this reliance was misplaced.
443 F.3d 469, 476 (6th Cir. 2006). Nair did not hold that a district court could avoid ruling on a
sovereign immunity defense and proceed to order discovery. Instead, it held that a district court
could choose to dismiss a case based on the merits if the defendants present sovereign immunity

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as an alternative argument and if the merits present a more expeditious method for dismissing the
case entirely. Id. at 476–77.
For Nair to hold otherwise would contradict the multiple other times that this Court has
treated sovereign immunity as a jurisdictional issue. See, e.g., Haines v. Fed. Motor Carrier
Safety Admin., 814 F.3d 417, 425 (6th Cir. 2016). It would also contradict the longstanding
principle that sovereign immunity protects a state’s dignity interests in avoiding not just ultimate
liability, but litigating a suit itself. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 145; see also
Kelly v. Great Seneca Fin. Corp., 447 F.3d 944, 949 (6th Cir. 2006) (“[R]equiring a State to
appear in federal court and undergo trial when it is entitled to sovereign immunity (even if it is
later shielded on the merits) harms the State’s dignitary interests.”). A state loses
the “fundamental” protection offered by the Eleventh Amendment at each step that litigation
proceeds without deciding whether a state is entitled to sovereign immunity. P.R. Aqueduct
& Sewer Auth., 506 U.S. at 145. To vindicate states’ dignity interests implicated by their
sovereign immunity to suit, district courts must issue a ruling on properly raised sovereign
immunity defenses—even if raised as an alternative defense—before permitting litigation to
proceed.
The district court also deferred its ruling on qualified immunity. It found that qualified
immunity does not affect the district court’s subject matter jurisdiction, and that it could
therefore defer ruling on this defense as well. However, this Court has long held that district
courts may not avoid ruling on the merits of a qualified immunity defense and permit litigation to
proceed further. See Skousen, 305 F.3d at 527; see also Myers v. City of Centerville, 41 F.4th
746, 758 (6th Cir. 2022). Similar to sovereign immunity, a decision on qualified immunity at the
earliest possible stage of litigation is necessary to vindicate its protection against litigation itself.
See Skousen, 305 F.3d at 526–27. Thus, the district court also erred in failing to address
Defendants’ qualified immunity defense before ordering limited discovery. Upon an
independent review of the record, however, we find that the University and Woods in his official
capacity are entitled to sovereign immunity, and that Woods in his individual capacity is entitled
to qualified immunity.

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1. Sovereign Immunity
Defendants argue that Eleventh Amendment sovereign immunity requires dismissal of all
claims made against the University of Michigan and Woods in his official capacity. The
Eleventh Amendment states that “The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. This forbids a plaintiff from suing a state, a state agent, or a state instrumentality for
monetary damages in federal court unless that state has consented to suit, or unless Congress has
clearly and expressly abrogated the state’s immunity to suit. See Regents of the Univ. of Cal.
v. Doe, 519 U.S. 425, 429 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
120–21 (1984); Puckett v. Lexington-Fayette Urb. Cnty. Gov’t, 833 F.3d 590, 598 (6th Cir.
2016).
Plaintiffs only seek monetary damages from Defendants, implicating the Eleventh
Amendment’s bar to suit. The University of Michigan is a state agency entitled to claim
Eleventh Amendment immunity. See Ashford v. Univ. of Mich., 89 F.4th 960, 969 (6th Cir.
2024). And as an employee of the University, all claims against Woods in his official capacity
are construed as asserted against Michigan itself. See Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). Moreover, Congress has not abrogated Michigan’s immunity to suit
under § 1983 claims. See Quern v. Jordan, 440 U.S. 332, 345 (1979). Thus, unless Michigan
consented to suit in federal court in this matter or on these claims, the University and Woods in
his official capacity are entitled to sovereign immunity.
On appeal, Plaintiffs only argue that Michigan has waived its sovereign immunity in this
litigation because the University has chosen to represent Woods in his individual capacity.
Plaintiffs’ admittedly “novel” argument is that this Court should infer that the Eleventh
Amendment permits this type of waiver based on a Supreme Court case addressing an Indian
tribe’s sovereign immunity. Pl.’s Br., ECF No. 24, 22. Specifically, in Lewis v. Clarke, the
Supreme Court considered whether an individual sued in his personal capacity could benefit
from his tribe’s sovereign immunity because the tribe was required by law to indemnify him for
the accident at issue. 581 U.S. 155, 157–58, 160 (2017). The Court found that this relationship

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did not transform the suit against him in his individual capacity into one against the tribe because
“[t]he critical inquiry is who may be legally bound by the court’s adverse judgment, not who will
ultimately pick up the tab.” Id. at 165.
Plaintiffs argue that this Court should make a logical leap from Lewis’s holding to find
that Michigan has waived its sovereign immunity in this case. Lewis held that a tribe’s mandated
indemnification of an individual did not mean that the individual could benefit from tribal
immunity. Plaintiffs argue that, in this case, Lewis means that Michigan’s representation of
Woods in his individual capacity means that Michigan cannot benefit from sovereign immunity.
In essence, Plaintiffs take from Lewis the rule, “if indemnification, then no immunity,” and ask
the Court to apply this rule to this case. Not only is this an unsupported logical jump from
Lewis’s holding, but it is contradicted by Lewis itself. Lewis found that the defendant could not
benefit from tribal immunity because it would ultimately be the individual defendant, not the
tribe, held legally responsible if plaintiffs were successful in their suit. Id. By contrast, in this
case, if Plaintiffs are successful in the merits of their claims against the University and Woods in
his official capacity, Michigan will be held responsible and “legally bound by the . . . judgment,”
squarely implicating the core protection of sovereign immunity.4 Id.
Moreover, Michigan has not waived its sovereign immunity through its other conduct in
this litigation. A state may waive its sovereign immunity through litigation conduct, but its
intent to do so must be “clear.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,
620 (2002). Michigan has made no such clear indication; to the contrary, it has only filed a
motion to dismiss, which explicitly raised sovereign immunity as a defense. This alone
is enough to find that Michigan did not waive its sovereign immunity defense. See Puckett,
833 F.3d at 598 n.1 (“The Commonwealth did not file an answer but rather raised the immunity
defense in its motion to dismiss. That was sufficient to defeat any argument that the immunity
issue had been waived.”).
4Plaintiffs’ argument has a second flaw: Michigan has not indicated that it will indemnify Woods in his
individual capacity. It has only chosen to provide him with representation by the same attorneys who represent the
University and Woods in his official capacity.

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Plaintiffs only request monetary damages, and the University and Woods in his official
capacity are treated as the State of Michigan for purposes of this litigation. Moreover, contrary
to Plaintiffs’ attempt to show otherwise, Michigan has not waived its sovereign immunity in this
litigation either by representing Woods in his individual capacity or by any other litigation
conduct. Therefore, all claims against the University and Woods in his official capacity are
barred by Eleventh Amendment sovereign immunity.
2. Qualified Immunity
Defendants also argue that qualified immunity bars Plaintiffs’ substantive due process
claim under § 1983 against Woods in his individual capacity. Qualified immunity immunizes
government officials from suit to the extent that their conduct does not violate clearly established
law. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Plaintiffs bear the burden of showing that
a government official is not entitled to qualified immunity. Cahoo v. SAS Analytics Inc.,
912 F.3d 887, 898 (6th Cir. 2019). At the motion to dismiss stage, this means that a plaintiff
must plausibly allege facts showing “(1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818). Although
qualified immunity may generally be better resolved on a motion for summary judgment rather
than a motion to dismiss, a plaintiff must still sufficiently plead facts to show a clearly
established constitutional violation. See Myers, 41 F.4th at 758–59.
The Due Process Clause of the Fourteenth Amendment protects citizens from
government deprivation of “life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV, § 1. As opposed to procedural due process, “[s]ubstantive due process is ‘[t]he
doctrine that governmental deprivations of life, liberty or property are subject to limitations
regardless of the adequacy of the procedures employed.’” Range v. Douglas, 763 F.3d 573,
588 (6th Cir. 2014) (second alteration in original) (quoting Pearson v. City of Grand Blanc,
961 F.2d 1211, 1216 (6th Cir. 1992)). Substantive due process prohibits behavior from state
actors that “shock[s] the conscience” and protects those “interests that the Supreme Court has
found so rooted in the traditions and conscience of our people as to be fundamental.” Bell
v. Ohio State Univ., 351 F.3d 240, 250 (6th Cir. 2003) (citations omitted). It also protects

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individuals against deprivations based on “arbitrary and capricious” action, “another
formulation” of the “shocks the conscience” standard. Bowers v. City of Flint, 325 F.3d 758,
763 (6th Cir. 2003).
Plaintiffs allege that Woods engaged in conscience-shocking behavior by overseeing and
implementing the University lab’s “lax policies surrounding lethal controlled substances,” and
that this lax administration deprived Todd of his life. Compl., R. 1, Page ID #32. Plaintiffs have
plausibly pleaded the deprivation of a protectable interest under the Constitution, as Todd’s
death plainly constitutes a deprivation of life. See McQueen v. Beecher Cmty. Sch., 433 F.3d
460, 463 (6th Cir. 2006). The central question, therefore, is whether Woods’ alleged role in this
deprivation amounted to conscience-shocking behavior.
The principles enumerated in Rochin v. California, 342 U.S. 165 (1952) provide the
“benchmark” for what shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833,
847 (1998). In Rochin, police pumped a suspect’s stomach to obtain pills as evidence for
prosecution. Rochin, 342 U.S. at 166. The Supreme Court found that this behavior “shock[ed]
the conscience” because it was “so brutal and so offensive to human dignity” that it violated the
“decencies of civilized conduct,” and, thus, violated the Constitution. Id. at 172–74. These are
no doubt largely subjective standards that amount to “no calibrated yard stick.” Lewis, 523 U.S.
at 847. At base, however, courts have emphasized that the “shocks the conscience” standard
does not impose constitutional liability on all state actors who simply cause harm, nor does it
“purport to supplant traditional tort law in laying down rules of conduct to regulate liability for
injuries that attend living together in society.” Daniels v. Williams, 474 U.S. 327, 332 (1986);
see also Lewis, 523 U.S. at 848. Instead, it “sets a high bar” and only penalizes government
actions that offend “traditional ideas of fair play and decency” such that they violate the
Constitution. Range, 763 F.3d at 589–90 (citation omitted).
In an effort to map on some commonly understood principles to this “more fluid”
constitutional doctrine, the Supreme Court has analogized potentially conscience-shocking
behaviors to the standards governing generalized tort law. Lewis, 523 U.S. at 848–50 (citation
omitted). Governmental behavior is “most likely to rise to the conscience-shocking level” when
it is “intended to injure in some way unjustifiable by any government interest.” Id. at 849. By

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contrast, “liability for negligently inflicted harm is categorically beneath the threshold of
constitutional due process.” Id. “[C]loser calls” are presented by middle-of-the-spectrum
culpability levels, such as recklessness or gross negligence. Id. Deliberate indifference can also
form the basis for a “shocks the conscience” claim. Id. at 850. Actions taken in these middle
stages of culpability “may or may not be shocking depending on context.” Hunt v. Sycamore
Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 535 (6th Cir. 2008).
Plaintiffs admit that Woods did not take intentional action to cause Todd’s death.
Instead, they argue that his laxity in ensuring the proper distribution of controlled substances in
the lab was reckless and deliberately indifferent to the harm that this lack of supervision may
cause. Thus, the only way that Plaintiffs may prevail on their due process claim is to allege
sufficient facts to show that Woods’ administration of the lab was so deliberately indifferent or
reckless that it shocked the conscience.
“Deliberate indifference in the constitutional sense requires that the officials knew of
facts from which they could infer a ‘substantial risk of serious harm,’” and “that they did infer
it.” Range, 763 F.3d at 591 (quoting Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir.
2002)). It then requires the officials to have “act[ed] or fail[ed] to act in a manner demonstrating
‘reckless or callous indifference’ toward the individual’s rights.” Ewolski, 287 F.3d at
513 (citation omitted). In the substantive due process context, we have treated the deliberate
indifference analysis as akin to subjective recklessness. See Bukowski v. City of Akron, 326 F.3d
702, 710 (6th Cir. 2003).
To sufficiently allege that Woods inferred a “substantial risk of serious harm,” Plaintiffs
must allege that Woods knew both the “scope and substance” of the particular risk of harm at
issue. Range, 763 F.3d at 591 (citation omitted). This Court has repeatedly declined to define
the type of risk potentially contemplated by defendants at too high a level of generality. See,
e.g., Jane Doe v. Jackson Loc. Sch. Dist. Bd. of Educ., 954 F.3d 925, 934 (6th Cir. 2020) (“[A]
public official must know of more than a general risk of harm. The official must know of the
specific risk that later develops.” (emphasis in original)). For example, in Range, this Court
found that the supervisors of a county morgue employee who sexually abused corpses were not
deliberately indifferent in their supervision of the employee because they had no knowledge of

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the specific risk the employee posed. Range, 763 F.3d at 578–79, 591. Although the supervisors
knew that the employee was drinking and having sex with live women at the morgue, this Court
found that there was no evidence that the knowledge of these facts could indicate that the
defendants knew of the substantial risk that the employee would then sexually abuse corpses. Id.
Similarly, in McQueen, after one student killed his classmate, the Court declined to
impose due process liability on the teacher who left the students in the classroom together.
433 F.3d at 462–63, 469–70. Although the teacher had known that the student who killed his
classmate had previously attacked other classmates with a pencil, this Court found that this
previous behavior did not show that the teacher had a subjective knowledge of the risk that the
student would use a gun to kill his classmate. Id. at 469–70; see also Jackson Loc. Sch. Dist. Bd.
of Educ., 954 F.3d at 935 (finding that a teacher could not subjectively know that student who
had lit matches on the bus was at risk of sexually assaulting another student).
In this case, the complaint alleges that the lab had procedures in place to restrict
employees’ access to the many controlled substances present in the lab. Thus, the complaint
plausibly indicates that Woods, by implementing these procedures, knew that the unauthorized
and unrestricted access to controlled substances could pose some risk, and that this risk could
include these substances being abused. The complaint, however, does not allege that Woods had
any knowledge that would lead him to believe that one of his employees intended to remove
some of the controlled substances from the lab to distribute to the wider community. Although it
alleges that, in September 1998, Raphalides provided “China White” to another individual, it
does not allege that Raphalides obtained this drug from the lab. Compl., R. 1, Page ID #14.
More importantly, it does not allege that Woods had any knowledge of this overdose or
Raphalides’ alleged involvement with it. Because the complaint does not plausibly allege that
Woods had knowledge of the risk that Raphalides would remove drugs from the lab, it has not
sufficiently pleaded a violation of substantive due process.
Even if the risk known by Woods could be defined at a higher level of generality, such as
the risk that any lab employee could remove drugs from the lab to distribute in the community,
Woods’ actions do not amount to conscience-shocking behavior. The complaint alleges that the
following actions or omissions by Woods shocked the conscience. First, during the twice-daily,

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one-hour blocks in which Woods opened the safe containing the controlled substances, Woods or
his assistant “[o]rdinarily” would oversee the distribution of controlled substances, “[b]ut not
always.” Compl., R. 1, Page ID #20. Outside of this occasional lapse in policy, the complaint
more generally alleges that the lab did not affirmatively take other actions to properly ensure the
safe distribution of the controlled substances in the lab.5
In all, Plaintiffs allege that Woods did not “always” follow the lab’s plan to ensure a safe
distribution of the drugs, and that he did not implement any additional procedures to ensure the
drugs remained in the lab. Id. This behavior sounds in negligence, rather than the type of
“callous disregard for the safety” of the community that we have held is necessary to show a due
process violation. Ewolski, 287 F.3d at 514; see also Jackson Loc. Sch. Dist. Bd. of Educ.,
954 F.3d at 936 (“At most, however, the failure to take these additional precautions suggests
negligence, which falls well short of establishing the required ‘callous disregard for the safety’ of
Minor Doe.” (citation omitted)). Thus, because the complaint does not plausibly allege either
that Woods knew of the substantial risk that Raphalides would take drugs out of the lab, or that
Woods’ actions amounted to conscience-shocking behavior, Plaintiffs have failed to plausibly
allege that Woods violated Todd’s substantive due process rights. Accordingly, Woods is
entitled to qualified immunity.
D. State Claims
Defendants raise three other issues on appeal that concern Michigan law. First, the
parties debate whether Plaintiffs’ claims are barred by the relative statutes of limitations, as
defined by Michigan law, and specifically whether Plaintiffs have adequately pleaded facts that
could permit Plaintiffs to evade the statutes of limitations for their claims based on a theory of
fraudulent concealment. As stated, we do not have jurisdiction to review the parties’ arguments
relating to fraudulent concealment and its impact on the statutes of limitations.
Second, the parties spend a significant portion of their briefs discussing whether
Plaintiffs’ claims are barred by Michigan’s statutory notice provision that requires a plaintiff
5For example, the complaint alleges that there were no procedures employed to reconcile the amount of
drugs taken from the safe with those used in the lab, and no regular inventorying of the drugs that had been removed
from the safe. Further, there were no procedures in place to ensure that the drugs remained in the lab.

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suing the state to give notice within a certain period of time before filing suit. Defendants,
however, concede that even if we were to agree with their arguments on this point, this would
only require dismissal of the state law claims against the University and Woods in his official
capacity. Because the state law claims against these Defendants are barred by sovereign
immunity just as the federal claims are barred, Pennhurst, 465 U.S. at 120–21, we need not
decide whether Plaintiffs’ admitted failure to comply with this statutory notice provision also
bars these claims.
Finally, Defendants argue that Woods in his individual capacity is entitled to
governmental immunity under Michigan law for Plaintiffs’ wrongful death claim. But Plaintiffs
have failed to address this argument in their appellate briefing, and have therefore
abandoned appellate review of any arguments they may have had in response. See Puckett, 833
F.3d at 610–11. Even if Plaintiffs had not abandoned their arguments on this claim, however, we
would find that Woods is entitled to governmental immunity. Michigan law immunizes a
government employee from tort liability when that employee performs a governmental function
within the scope of his authority and when his “conduct does not amount to gross negligence that
is the proximate cause of the injury or damage.” M.C.L. § 691.1407(2)(c). Defendants argue
that because Plaintiffs have not alleged facts showing that Woods was either grossly negligent or
the proximate cause of Todd’s death, Woods is entitled to governmental immunity under M.C.L.
§ 691.1407.
Michigan’s standard of gross negligence is slightly lower than the federal Constitution’s
standard for deliberate indifference, and, thus, the analysis of Woods’ culpability as to the § 1983
substantive due process claim does not apply with equal force. See Reilly v. Vadlamudi,
680 F.3d 617, 627 (6th Cir. 2012). Regardless of whether Woods’ conduct reached this lower
level of culpability, Defendants are correct that the complaint does not plausibly allege that
Woods’ actions were “the proximate cause” of Todd’s death as that phrase has been understood
by Michigan courts. The Michigan Supreme Court has interpreted the use of the article “the”
preceding “proximate cause” in M.C.L. § 691.1407(2)(c) to mean that a defendant’s actions must
be “the one most immediate, efficient, and direct cause of the injury or damage, i.e., the

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proximate cause.” Robinson v. City of Detroit, 613 N.W.2d 307, 319 (Mich. 2000) (emphasis
added).
In this case, Raphalides’ choice to remove the fentanyl from the lab, even if it was not the
most direct cause of Todd’s death, was a sufficient intervening cause such that the “most
immediate” cause of Todd’s death was not Woods’ administration of the lab. See id. at 312–13,
319 (finding that the proximate cause of the death of a driver and a passenger in cars fleeing
from police were the drivers of the car, not the police); see also Jasinski v. Tyler, 729 F.3d 531,
537, 545 (6th Cir. 2013) (finding child protective services employees were entitled to
governmental immunity under M.C.L. § 691.1407 because a father’s abuse, not their lack of
investigation, was the proximate cause of a child’s death). Thus, even if Plaintiffs had not
abandoned any arguments on this issue, Defendants are correct that Plaintiffs’ wrongful death
claim against Woods in his individual capacity should be dismissed as barred by governmental
immunity.
III. CONCLUSION
For the reasons stated above, we REVERSE the district court’s denial of Defendants’
motion to dismiss and REMAND with instructions to: (1) dismiss all claims against the
University and Woods in his official capacity as barred by sovereign immunity; (2) dismiss the
§ 1983 claim against Woods in his individual capacity as barred by qualified immunity; and
(3) dismiss the wrongful death claim against Woods in his individual capacity as barred by
governmental immunity. We DISMISS the remainder of Defendants’ appeal for lack of
jurisdiction.

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