Maryann Godboldo v. County of Wayne , 686 F. App'x 335 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0221n.06
No. 15-2438
UNITED STATES COURT OF APPEALS
FILED
Apr 14, 2017
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
MARYANNE GODBOLDO, et al.,
Plaintiffs-Appellees,
v.
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
COUNTY OF WAYNE, et al.,
EASTERN DISTRICT OF MICHIGAN
Defendants-Appellants.
BEFORE: DAUGHTREY, CLAY, and COOK, Circuit Judges.
CLAY, Circuit Judge. Plaintiffs Maryanne Godboldo and her daughter, identified as
“AG-H,” initiated this suit, pursuant to 42 U.S.C. § 1983, against Defendants Wayne County and
Mia Wenk, among others, for unreasonably seizing AG-H in violation of the Fourth Amendment
based on allegations that the putative order providing for the taking of AG-H into state protective
custody was unsupported by probable cause and was not reviewed or authorized by a judicial
officer.1 Wenk filed this interlocutory appeal challenging the district court’s October 2, 2015
order denying in part Wenk’s motion to dismiss and/or for summary judgment based on qualified
immunity. For the reasons set forth below, we hold that Wenk is entitled to immunity on all of
the claims asserted against her. We therefore REVERSE the district court’s partial denial of
1
Wayne County and the other defendants, with the exception of Wenk, have been
dismissed from this suit. (R. 18, Stipulation of Dismissal, PageID #266; R. 47, Op. & Order
Granting in Part & Denying in Part Mot. to Dismiss, PageID #895.)
No. 15-2438
Wenk’s motion to dismiss and REMAND this action to the district court for further proceedings
consistent with this opinion.
BACKGROUND
In September 2009, Maryanne Godboldo started noticing behavioral changes in her
eleven-year-old daughter, AG-H, after she was given vaccinations. Godboldo sought treatment
for her daughter at the New Oakland Child-Adolescent and Family Center (“the Center”). AG-H
was prescribed Risperdal, an anti-psychotic medication. Godboldo was told that she could
withdraw her consent to the administration of the drug at any time.
After AG-H started taking the medication, Godboldo noticed that her daughter was
experiencing side effects, which included a thirty-two pound weight gain, extreme behavioral
changes, and agitation. Godboldo subsequently contacted the Center to complain about the side
effects and to withdraw her consent for this medication to be administered to her daughter. With
the assistance of an outside medical consultant, Godboldo began weaning AG-H off the
medication.
The Center, after learning that Godboldo had taken AG-H off the medication, contacted
Child Protective Services (“CPS”) to report Godboldo’s action as alleged neglect. Mia Wenk, a
social worker with CPS, was assigned to this case and scheduled a Permanent Placement
Conference for March 23, 2011, but did not conduct any further investigation into the allegations
of abuse. At this conference, which Godboldo did not attend, Wenk and others decided to
petition the court for removal of AG-H from Godboldo’s custody, even though the only
information available was that Godboldo had “abruptly” taken AG-H off of the Risperdol. The
following day, on March 24, 2011, Wenk submitted an “Order to Take Child(ren) into Protective
Custody” to the Wayne County Circuit Court. This order was approved, though not by a judge.
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No. 15-2438
Instead, a probation officer used a judge’s stamp to approve the order without any judicial input
or review.
Wenk then enlisted the help of the Detroit police in order to take AG-H into protective
custody. After Godboldo refused entry to the police and Wenk, the police used a crowbar to
break into the home. Godboldo was arrested and charged for having endangered the lives of the
police officers. AG-H was taken to the Hawthorne Center, where she stayed until December 12,
2011.
Godboldo and AG-H (“Plaintiffs”) filed suit in the United States District Court for the
Eastern District of Michigan on March 12, 2014, and named Mia Wenk, along with the County
of Wayne, the Wayne County Circuit Court, and three additional individuals, as Defendants.
Relevant to this appeal, the complaint asserts the following claims against Wenk: violation of
Plaintiffs’ Fourth and Fourteenth Amendment rights to due process, equal protection, to be free
from unreasonable searches and seizures, and to be free from the use of excessive force (Count
III); liability under state law, including statutes, common law, rules, regulations, and ordinances,
for the violation of Plaintiffs’ rights “to be free from the negligent, reckless, knowingly and/or
intentionally tortuous [sic], wilful [sic], wanton and/or grossly negligent execution of ministerial-
operational duties contrary to the Michigan Constitution” (R. 1, Compl., ¶ 48) (Count IV); and
intentional infliction of emotional distress (Count V).
Wenk filed a “Motion to Dismiss and/or for Summary Judgment” on May 19, 2014,
which asserted that Wenk was entitled to qualified immunity, Eleventh Amendment immunity,
and statutory and common law immunity under state law. The district court found that a motion
for summary judgment was premature, and decided the motion as a motion to dismiss for failure
to state a claim upon which relief can be granted. In its opinion and order issued on October 2,
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2015, the court first found that Wenk was entitled to absolute immunity in connection with her
actions in filing the petition to take AG-H into protective custody. The court further determined
that Plaintiffs had failed to plead a claim against Wenk for substantive and procedural due
process violations and that the complaint, insofar as it asserted such claims, should be dismissed.
The district court further dismissed the § 1983 claim against Wenk for violation of Plaintiffs’
rights to equal protection under the law because Plaintiffs failed to allege that they were
members of a suspect class or that they were treated differently from others similarly-situated to
them. The district court, however, denied Wenk’s motion to dismiss the § 1983 claim against
Wenk for the allegedly unreasonable seizure.
As for the state law claims against Wenk, the district court first noted that Count IV did
not actually specify which state laws Wenk allegedly violated. The court, however, went on to
find that Wenk failed to meet her burden of establishing that she was entitled to governmental
immunity as to any intentional torts asserted against her. The court therefore denied her motion
to dismiss as to Counts IV and V. Finally, the court denied Wenk’s motion to dismiss insofar as
it sought to dismiss the intentional infliction of emotional distress claim in Count V because the
complaint alleged facts that, if true, would establish all of the elements of that claim.
On October 16, 2015, Wenk filed a motion for reconsideration, in which she argued that
the district court should have considered the records attached to the motion to dismiss and that
such consideration would not have improperly converted the motion into one for summary
judgment. She also argued that the Fourth Amendment claim should be dismissed because there
was probable cause to believe that abuse or neglect was occurring. Wenk also asked for
reconsideration of the court’s order denying her qualified immunity on the federal claims
asserted against her and denying her governmental immunity on the state law claims. Wenk
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No. 15-2438
further challenged the district court’s determination that the complaint alleged facts that would
establish that her actions were extreme and outrageous, as required for the intentional infliction
of emotional distress claim against her. The court denied her motion for reconsideration on
October 27, 2015, and this timely appeal followed.
DISCUSSION
I. Jurisdiction
We generally have jurisdiction to hear an appeal of an order denying qualified immunity
pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, we may
exercise jurisdiction over such an appeal only if “it turns on an issue of law.” Kennedy v. City of
Cincinnati, 595 F.3d 327, 333 (6th Cir. 2010) (quoting Estate of Carter v. City of Detroit, 408
F.3d 305, 309 (6th Cir. 2005)). A defendant entitled to invoke qualified immunity “may not
appeal a district court’s . . . order insofar as that order determines whether or not the pretrial
record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–320
(1995). “[T]o the extent that the denial of qualified immunity is based on a factual dispute, such
a denial falls outside of the narrow jurisdiction of this Court.” Harrison v. Ash, 539 F.3d 510,
517 (6th Cir. 2008) (citations omitted).
Plaintiffs argue that this Court lacks jurisdiction to hear this appeal because Wenk seeks
to challenge the facts alleged in the complaint and is not presenting a pure legal argument about
whether a clearly established constitutional right was violated. Wenk, however, argues that
jurisdiction is proper, as she is not disputing the facts. We find that Wenk is, in fact, presenting a
purely legal question about whether the facts as pled by Plaintiffs establish that Wenk is liable in
spite of collateral estoppel and the qualified immunity doctrine. Therefore we have jurisdiction
to entertain this interlocutory appeal.
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No. 15-2438
II. Analysis
A. Standard of Review
“When a defendant appeals the denial of a motion to dismiss based on qualified
immunity, we review de novo whether the complaint alleges violation of a clearly established
constitutional right.” Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011)
(citations omitted). “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) (citing Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th
Cir. 2007); and Heyne, 655 F.3d at 562–63).
B. Qualified Immunity
Public officials who violate a plaintiff’s constitutional rights while acting under the color
of state law may be liable under 42 U.S.C. § 1983. Kentucky v. Graham, 473 U.S. 159, 166
(1985). However, the qualified immunity defense bars individual liability where “a reasonable
official in the defendant’s position would not have understood his or her actions to violate a
person’s constitutional rights.” Gregory v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006)
(citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). “Qualified immunity ‘gives ample
room for mistaken judgments by protecting all but the plainly incompetent or those who
knowingly violate the law.’” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)
(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).
To determine whether an officer is entitled to qualified immunity, a court must consider
“(1) whether the facts, when taken in the light most favorable to the party asserting the injury,
show the officer’s conduct violated a constitutional right; and (2) whether the right violated was
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No. 15-2438
clearly established such ‘that a reasonable official would understand that what he is doing
violates that right.’” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Saucier v.
Katz, 533 U.S. 194, 201–02 (2001)). These two prongs of the qualified immunity test may be
addressed in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Plaintiffs bear the
burden of showing that a clearly established right has been violated and that the official’s
conduct caused that violation. See Chappell, 585 F.3d at 907.
Plaintiffs in the instant case allege that Wenk violated their Fourth Amendment right to
be free from unreasonable seizures, which applies to the states and their political subdivisions
through incorporation by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961);
Ker v. State of Cal., 374 U.S. 23, 30–31 (1963). Neither the complaint nor the accompanying
briefing specify how, exactly, Plaintiffs contend Wenk violated that right. However, the district
court attempted to clarify and describe the violation as follows:
Plaintiffs say that Wenk took advantage of the deficient review process in place at
the Wayne County Circuit Court by presenting a facially invalid petition, knowing
that it would not be subject to review by a judge. Indeed, a fair reading of the
Complaint is that Wenk knew that there was no probable cause to take AG-H into
custody.
(R. 47, Op. & Order Granting in Part & Denying in Part Mot. to Dismiss, PageID #888.) During
oral argument, Plaintiffs represented that Wenk violated their Fourth Amendment rights by
initiating the investigation in the first place. However, under either theory we conclude that
Plaintiffs are collaterally estopped from claiming that their Fourth Amendment rights were
violated because the Michigan state courts have already determined the dispositive issues in this
case—that there was probable cause to take AG-H into custody and that the order authorizing the
taking of AG-H was valid despite the lack of judicial review or authorization.
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No. 15-2438
As an initial matter, we are not coming to this case with a blank slate. Instead, Plaintiffs
have litigated both the existence of probable cause and the validity of the court order taking
AG-H into custody in state court, as those issues were relevant for both AG-H’s custody
determination and Godboldo’s criminal prosecution. Wenk now asks this Court to give
preclusive effect to the relevant opinions. Wenk first points to the decision by the referee, which
was affirmed by a judge, that probable cause existed to take AG-H into protective custody based
on the allegations of abuse relating to the withdrawal of her medication. (See R. 17-5, Probable
Cause Hr’g Tr., PageID #210–11; R. 17-7, Request & Order for Review of Referee
Recommendation, PageID #218.) This probable cause determination was not challenged on
appeal, and jurisdiction over AG-H was held to be proper. In re Godboldo-Hakim, Nos. 305858,
308040, 2012 WL 2914260, at *1–2 (Mich. Ct. App. July 17, 2012). In the second opinion,
People v. Godboldo, No. 323261, 2016 WL 299707 (Mich. Ct. App. Jan. 21, 2016), the
Michigan Court of Appeals specifically held that the order to take AG-H into custody was valid
both under Michigan law and the Fourth Amendment of the United States Constitution. Id. at
*4–6. In doing so, the Michigan Court of Appeals reversed the state district court’s
determination, which was affirmed by the Wayne County Circuit Court, “that the order to take
the child into protective custody was invalid since it was not signed by a judge and there was no
judicial review of the order.” Id. at *3. Plaintiffs, for their part, do not address the elements
required for collateral estoppel, but instead argue that consideration of these state court decisions
is improper on a Rule 12(b)(6) motion.
Plaintiffs’ argument that we cannot consider the Michigan state court opinions is
unavailing. Contrary to Plaintiffs’ representations, we are not being asked to take judicial notice
of adjudicative facts, as contemplated by Federal Rule of Evidence 201. See Getty Petroleum
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No. 15-2438
Mktg., Inc. v. Capital Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004) (Lipez, J., concurring)
(explaining the difference between judicial notice of facts, which is governed by Federal Rule of
Evidence 201, and judicial notice of law). Instead, Wenk seeks to enforce the decisions of two
dispositive Michigan state court opinions, as they directly relate to the § 1983 action filed against
her. As we have previously held, we “are required to take judicial notice of the statute and case
law of each of the states.” Schultz v. Tecumseh Prods., 310 F.2d 426, 433 (6th Cir. 1962)
(citations omitted); see also Lamar v. Micou, 114 U.S. 218, 223 (1885) (“The law of any state of
the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the
courts of the United States are bound to take judicial notice, without plea or proof.”). Therefore,
consideration of these Michigan court opinions is not only proper, it is required.
Moreover, the district court erred to the extent that it failed to consider the relevant state
court orders attached to Wenk’s motion on the basis that they were extra-pleading materials not
referenced in the complaint. While it is generally true that an “[a]ssessment of the facial
sufficiency of the complaint must ordinarily be undertaken without resort to matters outside the
pleadings,” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (citation
omitted), we have recognized exceptions to that blanket rule. One such exception includes
public records, including court orders. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir.
2008) (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). Therefore,
consideration of the state court orders taking AG-H into state custody and finding that probable
cause existed are properly considered on a 12(b)(6) motion. For the same reason, or based on
judicial notice, we can consider the Michigan Court of Appeals’ decision, which was released
during the pendency of this appeal, determining that the protective custody order allowing Wenk
to take AG-H from Godboldo’s home was valid.
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“The Full Faith and Credit Act mandates that ‘judicial proceedings . . . shall have the
same full faith and credit in every court within the United States . . . as they have by law or usage
in the courts of such State . . . from which they are taken.’” Spectrum Health Continuing Care
Grp. v. Anna Marie Bowling Irrevocable Tr. Dated June 27, 2002, 410 F.3d 304, 310 (6th Cir.
2005) (alterations in original) (quoting 28 U.S.C. § 1738). “The United States Supreme Court
has interpreted the act as requiring that ‘a federal court must give to a state-court judgment the
same preclusive effect as would be given that judgment under the law of the State in which the
judgment was rendered.’” Id. (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984)). Therefore, we turn to Michigan law to determine whether prior decisions in the
Michigan state courts foreclose Plaintiffs’ claims here.
Under Michigan law, the application of collateral estoppel requires that “(1) a question of
fact essential to the judgment must have been actually litigated and determined by a valid and
final judgment; (2) the same parties must have had a full [and fair] opportunity to litigate the
issue; and (3) there must be mutuality of estoppel.” Monat v. State Farm Ins. Co., 677 N.W.2d
843, 845–46 (Mich. 2004) (alteration in original) (internal quotations and footnote omitted).
Collateral estoppel further requires that “the same issue was actually litigated in the first
proceeding,” and that the “issue was necessary to the judgment.” Spectrum Health Continuing
Care Grp., 410 F.3d at 310 (quoting United States v. Dominguez, 359 F.3d 839, 842 (6th Cir.
2004)). The Michigan Supreme Court has since determined that “mutuality [is] not required
when collateral estoppel [is] being used defensively,” as it is here. Gilbert v. Ferry, 413 F.3d
578, 581 (6th Cir. 2005) (per curiam) (citing Monat, 677 N.W.2d at 850).
It is clear from the record that the issues to which Wenk seeks to give preclusive effect—
probable cause to take AG-H into custody and the validity of the court order—were actually
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No. 15-2438
litigated and determined by a valid and final judgment. The parties also had a full opportunity to
litigate the issue. As noted by the Michigan Court of Appeals, the issue of probable cause was
addressed extensively and ended with a state court referee determining that probable cause
existed. In re Godboldo-Hakim, 2012 WL 2914260, at *2. That determination was subsequently
reviewed by a judge. Godboldo chose not to challenge the probable cause determination on
appeal. Id. at *1. Based on the transcripts from the probable cause hearing, as well as the
subsequent court orders, it is clear that the issue of probable cause was actually litigated and
necessary to the judgment, as the entire purpose of those proceedings was to determine whether
probable cause existed for the state to take AG-H out of Godboldo’s custody. (See R. 17-5, at
210–11; R. 17-7, at 218); see also In re Godboldo-Hakim, 2012 WL 2914260, at *1.
Similarly, the validity of the court order was challenged first in front of a state district
court, then a circuit court, and was eventually resolved by the Michigan Court of Appeals.
People v. Godboldo, 2016 WL 299707, at *3–6. The Michigan Supreme Court subsequently
denied leave to appeal, thus meaning the decision is final. People v. Godboldo, 878 N.W.2d 856
(Mich. 2016) (mem). The Michigan Court of Appeals also necessarily determined that the lack
of judicial review of the order allowing Wenk to take AG-H into custody did not render the order
invalid under state law and the Fourth Amendment. The state district and circuit courts clearly
held that the order was invalid based on the fact that it was signed by a probation officer and not
a judge. Godboldo, 2016 WL 299707, *3. However, the Michigan Court of Appeals reversed
that ruling and held both that “the order to take [AG-H] into protective custody complied with
the court rule that was in effect at the time that the order was entered,” id. at *4, and that “the
order was also a constitutional warrant under the Fourth Amendment to the United States
Constitution,” id. at *5. In doing so, the Michigan Court of Appeals necessarily rejected the
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basis upon which the two lower courts invalidated the order—the lack of judicial review or
oversight—despite the fact that the court did not explicitly state the reasons for its holding. The
holding was also necessary to the judgment of the court, as the Michigan Court of Appeals relied
on the finding that the order was valid and lawful to conclude that Godboldo could not argue that
she was properly resisting the unlawful arrest of her daughter. Id. at *7.
Moreover, both AG-H and Godboldo were parties, or were in significant enough privity
to a party, to the child-protective custody determination. See In re Godboldo-Hakim, 2012 WL
291420, at *1; see also Marran v. Marran, 376 F.3d 143, 151–52 (3d Cir. 2004) (collecting cases
and holding that “[e]ven if a child is not a party to a custody action her federal claims will be
barred if the child is in privity with the named parties (her parents)”); Aguilar v. Los Angeles
Cty., 751 F.2d 1089, 1093 (9th Cir. 1985) (citation omitted) (noting that collateral estoppel has
been expanded “to prevent children from relitigating an issue decided in a previous action
brought by their mother”). Thus, both AG-H and Godboldo are bound by the Michigan court’s
determination that there was probable cause to take AG-H into protective custody. Furthermore,
Godboldo is bound by the Michigan Court of Appeals’ decision holding that the order taking
AG-H into custody was valid under the Fourth Amendment, as she was the defendant in that
case.
Based on the foregoing analysis, we conclude that Plaintiffs are collaterally estopped
from re-litigating the existence of probable cause to take AG-H into custody and the validity of
the related court order, based on the Michigan courts’ previous decisions on these issues.
However, we must pause to note that this case may very well have been decided differently had
this Court been able to address Plaintiffs’ constitutional claims outside the confines of the
Michigan courts’ previous decisions. The Supreme Court has recognized that an individual
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issuing a warrant is not required to be a lawyer or a judge, but still “must be neutral and
detached, and he must be capable of determining whether probable cause exists for the requested
arrest or search.” Shadwick v. City of Tampa, 407 U.S. 345, 349–50 (1972). The “neutral and
detached” requirement is meant to ensure that the issuing magistrate is not associated with any
law enforcement activity. Id. at 350–51. This Court, however, has noted that the person signing
a warrant must also be authorized by state law to do so. United States v. Master, 614 F.3d 236,
240 (6th Cir. 2010). Regrettably, the Michigan Court of Appeals failed to adequately explain
why, exactly, the “rubber-stamping” procedure used by probation officers in the Wayne County
Circuit Court was valid under either Michigan law or the Fourth Amendment, despite being
presented with the question and two lower court decisions invalidating the court order based on
the lack of judicial review. Instead, the Michigan Court of Appeals simply stated that the order
was valid under the laws of both Michigan and the United States. Notwithstanding the complete
lack of any clear legal analysis by the Michigan Court of Appeals and our concern that the
procedure used in Wayne County, Michigan at the time AG-H was removed from her mother’s
custody may have been constitutionally suspect, we must still give preclusive effect to the state
court’s holding, as the issue of the order’s validity was raised and necessarily decided. See
Spectrum Health Continuing Care Gp., 410 F.3d at 310; People v. Godboldo, 2016 WL 299707,
at *3–6. However, our opinion should not be interpreted to foreclose all future challenges to the
procedures used in Wayne County or elsewhere in Michigan, should such an appropriate case
arise that is not barred by preclusion.
We further find that the issues decided by the Michigan courts are dispositive of
Plaintiffs’ Fourth Amendment claim that AG-H was unlawfully seized. “[A] social worker, like
other state officers, is governed by the Fourth Amendment’s warrant requirement.” Kovacic v.
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Cuyahoga Cty. Dep’t of Children & Family Servs., 724 F.3d 687, 695 (6th Cir. 2013) (alteration
in original) (quoting Andrews v. Hickman Cty., 700 F.3d 845, 859 (6th Cir. 2012)). “The
removal of a child from his custodial parents’ home is a seizure for Fourth Amendment purposes,
which is constitutionally reasonable if it is pursuant to a court order, is supported by probable
cause, or is justified by exigent circumstances.” Krantz v. City of Toledo Police Dep’t, 197 F.
App’x 446, 453 n.5 (6th Cir. 2006) (citing Brokaw v. Mercer Cty., 235 F.3d 1000, 1010 (7th Cir.
2000)) (additional citation omitted). However, as the Michigan state courts have already
determined, albeit unpersuasively, that there was both probable cause and a valid warrant to take
AG-H into protective custody, Plaintiffs cannot establish that a Fourth Amendment violation
occurred. Moreover, Plaintiffs’ attempt to re-characterize the violation as related to Wenk’s
allegedly improper or insufficient investigation is unavailing, inasmuch as the Michigan courts
have decided that the order to take AG-H into custody was supported by sufficient probable
cause to be valid. Whether Wenk could have investigated more thoroughly is irrelevant to the
determination of whether a Fourth Amendment violation occurred as long as the Michigan courts
have determined that probable cause existed to support the order.
Because Plaintiffs have not established that their constitutional rights were violated, we
reverse the district court’s denial of qualified immunity as to the Fourth Amendment claim
asserted against Wenk.
C. State Governmental Immunity
“Under Sixth Circuit precedent, a district court’s ruling denying Michigan governmental
immunity under Michigan Compiled Laws § 691.1407 is a ‘final order’ that may be immediately
appealed under 28 U.S.C § 1291.” Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015)
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(citing Smith v. Cty of Lenawee, 600 F.3d 686, 689–90 (6th Cir. 2010)). A government official is
entitled to governmental immunity for an intentional tort if he establishes the following:
(a) The acts were undertaken during the course of employment and the employee
was acting, or reasonably believed that he was acting, within the scope of his
authority,
(b) the acts were undertaken in good faith, or were not undertaken with malice,
and
(c) the acts were discretionary, as opposed to ministerial.
Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008). Lack of good faith is defined as
“‘malicious intent, capricious action or corrupt conduct’ or ‘willful and corrupt misconduct.’”
Id. at 225 (first quoting Veldman v. Grand Rapids, 265 N.W. 790, 794 (Mich. 1936); then
quoting Amperse v. Winslow, 42 N.W. 823, 827 (Mich. 1889)). Specifically, “willful and wanton
misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such
indifference to whether harm will result as to be the equivalent of willingness that it does.” Id.
(quoting Burnett v. City of Adrian, 326 N.W.2d 810, 812 (Mich. 1982)).
Plaintiffs attempt to assert various state law claims against Wenk, stating that Wenk
violated Plaintiffs’ rights “under statutes, common law, rules, regulations and/or ordinances of
the State of Michigan, to be free from the negligent, reckless, knowingly and/or intentionally
tortuous [sic], wilful [sic], wanton and/or grossly negligent execution of ministerial-operational
duties contrary to the Michigan Constitution.” (R. 1, at ¶ 48.) As the district court noted, “the
legal basis of Plaintiffs’ claims in Count IV is unclear: they do not cite any particular theory or
state law. Nor does Plaintiffs’ response shed any light on the matter.” (R. 47, at 892.) We are
thus faced with the difficulty of evaluating whether state governmental immunity applies based
on pleadings that would not satisfy the requirements of Federal Rule of Civil Procedure 8.
See Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (“The factual
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allegations in the complaint need to be sufficient to give notice to the defendant as to what
claims are alleged . . . .”). However, Plaintiffs also assert a claim against Wenk for intentional
infliction of emotion distress, which the district court interpreted to be based “not only on
Wenk’s execution of the order (especially the use of police officers to remove the child from the
home), but also on Wenk’s conduct in initiating the investigation and taking advantage of the
practices of the court in allowing probation officer review of custody petitions in order to remove
AG-H from the home.” (R. 47, at 893.)
To the extent that Plaintiff asserts intentional torts, including the intentional infliction of
emotion distress claim, against Wenk based on the same conduct underlying the Fourth
Amendment § 1983 claim against her, we conclude that such claims should be dismissed. As
explained above, the Michigan courts have already determined that Wenk acted lawfully in
procuring an order to take AG-H into custody, as the order was supported by probable cause and
was valid under Michigan law and the Fourth Amendment. Assertion of liability under tort is
appropriate only when there has actually been wrongdoing on the part of the alleged tortfeasor.
See In re Bradley Estate, 835 N.W.2d 545, 555 (Mich. 2013) (“We therefore hold that ‘tort
liability’ as used in MCL 691.1407(1) means all legal responsibility arising from a
noncontractual civil wrong for which a remedy may be obtained in the form of compensatory
damages.”); cf. Allen v. McCurry, 449 U.S. 90, 102 n.18 (1980) (recognizing that “a state court
decision that the police acted legally cannot but foreclose a claim that they acted in bad faith”).
Because Wenk’s actions were authorized by law, she was entitled to immunity from any tort
actions based on those actions. We therefore reverse the district court’s denial of immunity for
the tort claims asserted against Wenk based on her actions in investigating, obtaining, and
executing the order taking AG-H into custody.
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No. 15-2438
CONCLUSION
Because the Michigan state courts previously determined that probable cause existed to
take AG-H into custody and that the order authorizing the taking of AG-H was valid, we
REVERSE the district court’s denial of qualified immunity and the denial of state governmental
immunity, and REMAND the action for further proceedings consistent with this opinion.
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No. 15-2438
COOK, Circuit Judge, concurring. I join the majority opinion with one exception.
Given the court’s conclusion that “Plaintiffs are collaterally estopped from re-litigating the
existence of probable cause,” I do not join the discussion of how this case may “have been
decided differently had this Court been able to address Plaintiffs’ constitutional claims.” See Op.
at 12–13.
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