Nathaniel Brent v. Wayne Cty. Dep't of Human Servs. , 901 F.3d 656 ( 2018 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0184p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
17-1428 ┐
│
NATHANIEL BRENT; ROBERT BRENT,
│
Plaintiffs-Appellees,
│
v. │
> Nos. 17-1428/1811
WAYNE COUNTY DEPARTMENT OF HUMAN SERVICES et │
al., │
Defendants, │
MIA WENK; SHEVONNE TRICE; HEATHER DECORMIER- │
MCFARLAND; MONICIA SAMPSON; CHARLOTTE │
MCGEHEE; JOYCE LAMAR, │
Defendants-Appellants. │
│
___________________________________________ │
17-1811 │
NATHANIEL BRENT; ROBERT BRENT, │
Plaintiffs-Appellants, │
│
v. │
WAYNE COUNTY DEPARTMENT OF HUMAN SERVICES; │
MIA WENK; SHEVONNE TRICE; HEATHER DECORMIER- │
MCFARLAND; MONICIA SAMPSON; CHARLOTTE │
MCGEHEE; JOYCE LAMAR; EMINA BIOGRADLIJA; │
MICHAEL BRIDSON; DETROIT POLICE DEPARTMENT; │
TWO UNKNOWN DETROIT POLICE OFFICERS; │
METHODIST CHILDREN’S HOME SOCIETY; THE │
CHILDREN’S CENTER; LESLIE SMITH, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 5:11-cv-10724—Judith E. Levy, District Judge.
Decided and Filed: August 23, 2018
Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 2
_________________
COUNSEL
ON BRIEF IN 17-1428: Lisa C. Geminick, OFFICE OF THE ATTORNEY GENERAL OF
MICHIGAN, Lansing, Michigan, for Appellants. Nathaniel Brent, Robert Brent, Detroit,
Michigan, pro se. ON BRIEF IN 17-1811: Lisa C. Geminick, OFFICE OF THE ATTORNEY
GENERAL OF MICHIGAN, Lansing, Michigan, for State of Michigan Appellees. Christyn M.
Scott, DYKEMA GOSSETT PLLC, Bloomfield Hills, Michigan, for Appellee Methodist
Children’s Home Society. David M. Saperstein, MADDIN, HAUSER, ROTH & HELLER,
P.C., Southfield, Michigan, for Appellee The Children’s Center. Sheri L. Whyte, CITY OF
DETROIT, Detroit, Michigan, for Appellees City of Detroit, Emina Biogradlija, and Michael
Bridson. Nathaniel Brent, Robert Brent, Detroit, Michigan, pro se.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. This case marks the latest appeal in the
nearly eight-year-long litigation between the Brent family and the various entities involved in the
State of Michigan’s temporary removal of Nathaniel and Sherrie Brent’s children from their
home in 2010. After six years and 270 docket entries, the district court ultimately entered
judgment in all the various defendants’ favor. We now AFFIRM in part, REVERSE in part,
and REMAND this case to the district court for further proceedings consistent with this opinion.
I. BACKGROUND
A. Factual Background
On January 17, 2010, fifteen-year-old Robert Brent ran away from home and arrived at a
Detroit Police station wearing no shirt, no shoes, and a pair of shorts. R. 222 (Second Am.
Compl. at 5) (Page ID #5174). This ultimately led employees of Wayne County Department of
Health Services (“DHS”)—including child-protective-services caseworker Mia Wenk, supervisor
Monica Sampson, and intern Heather Decormier-McFarland—to open an investigation into
Robert’s parents, Nathaniel and Sherrie Brent, for potential child abuse and child neglect. Id. at
5–8 (Page ID #5174–77). During the course of their investigation, DHS employees visited the
Brents’ home on two occasions. Id. During the second visit, Sampson and Decormier-
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McFarland allegedly took photographs of the interior of Brents’ home without the Brents’
consent. Id. at 8 (Page ID #5177).
On February 18, 2010, the DHS employees petitioned the Family Division of the Third
Judicial Circuit Court for Wayne County (“Family Court”) for an order authorizing the removal
of the five Brent children from their home. Id. at 14–15 (Page ID #5183–84). Wenk drafted and
submitted the petition, and Sampson and Sampson’s supervisor, Joyce Lamar, co-signed the
petition. Id. at 50 (Page ID #5220). In a page of “Allegations” accompanying the petition,
Wenk detailed the poor conditions of the Brents’ home, her concerns about lead-based paint on
the walls, and her concerns about the Brents’ youngest child, who was ten-years old and
appeared to have a severe speech impediment. R. 231-1 (Petition at 2) (Page ID #5324).
According to plaintiffs, Wenk knowingly included false information in the petition and withheld
other relevant information. R. 222 (Second Am. Compl. at 12, 14) (Page ID #5181, 5183).
Plaintiffs further allege that the Family Court judge whose signature appeared on the order,
Judge Leslie Smith, never actually reviewed or approved the order. Id. at 12–13 (Page ID
#5181–82). Instead, according to plaintiffs, Judge Smith instituted a policy allowing probation
officers to use a rubber stamp bearing her name to approve child removal orders, and that policy
was purportedly followed in this case. R. 115 (Pl. Mot. for Reconsideration at 3–4) (Page ID
#2376–77).
The removal order was executed that same evening. R. 222 (Second Am. Compl. at 13,
53) (Page ID #5182, 5223). Wenk allegedly enlisted the assistance of Detroit Police Officers to
execute the order by falsely claiming that previous attempts to remove the children had been
unsuccessful. Id. at 13 (Page ID #5182). When the police arrived at the Brents’ home, Officer
Bridson knocked on the door and told Nathaniel Brent (“Brent”) that the police had a warrant to
remove the children. Id. at 53 (Page ID #5223). Brent asked to see the warrant, and Officer
Michael Bridson refused and stated that the police were “going to secure the area first.” Id. He
then “pushed his way past” Brent and entered the home, and Officer Emina Biogradlija followed
behind him. Id. Five minutes later, two additional officers entered the house and showed Brent
the removal order. Id. Brent reviewed the order and told the officers that it was facially
defective, but the police officers removed the children nonetheless. Id. at 54 (Page ID #5224).
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When the youngest child attempted to hold onto his mother, one of the officers “ripped him from
his mother and pushed him out the front door.” Id. According to Brent, the Detroit Police
Department’s internal policy bars Detroit Police Officers from serving civil orders. Id.
On February 19, 2010, a preliminary hearing was held before Referee Bobak, and the
court appointed guardians at litem and counsel for the parents. R. 163 (Order at 6) (Page ID
#4117); R. 222 (Second Am. Compl. at 35) (Page ID #5205). On February 24, 2010, the Family
Court held a probable-cause hearing and found probable cause to authorize the petition of
removal. R. 113 (Order at 3) (Page ID #2262). Also on that date, Shevonne Trice, a foster-care
caseworker with the Wayne County DHS Foster Care Department, was appointed as the
caseworker for the Brent family. R. 222 (Second Am. Compl. at 3, 35) (Page ID #5172, 5205).
On March 3, 2010, Trice placed Brent’s male children in the home of Michael and Noel
Chinavare. Id. at 36 (Page ID #5206). Trice allegedly drafted and gave the Chinavares a
document claiming they were the temporary guardians of the children, even though neither the
parents nor the court had authorized this guardianship. Id. Brent’s male children were later
placed with Methodist Children’s Home Society (“Methodist”), a “residential care facility
licensed and regulated by the State of Michigan for the care, treatment, and detainment of court
and state wards.” Id. at 56 (Page ID #5226).
While Brent’s male children were staying at the Methodist, Robert became ill. Id. at 57
(Page ID #5227). On April 14, 2010, Brent and his wife learned during a family visit with their
children that the facility nurse at Methodist, Mary Ann Stokes, had given Robert medication for
his cough that had expired in October 2008. Id. The Brents immediately informed Trice, who
was also at the family visit, but Trice failed to report Methodist for its allegedly medically
negligent treatment of Robert. Id. at 41 (Page ID #5211). The next day, Brent spoke with Stokes
and told her that Robert needed to be seen by a doctor as soon as possible. Id. at 57 (Page ID
#5227). On April 16, 2010, Robert’s condition worsened and he repeatedly asked to see a
doctor. Id. After his requests were denied for several hours, Robert left Methodist and went to a
hospital. Id. By that point, Robert was coughing up blood and was diagnosed with acute
bronchitis and acute pharyngitis. Id. After Robert returned to Methodist, his condition initially
improved and then again worsened. Id. at 58 (Page ID #5228). Brent and Robert repeatedly
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asked for Robert to see a doctor, but these requests were denied “the entire time [Robert]
remained at Methodist.” Id.
Meanwhile, Trice had transferred Brent’s female children to the home of Renee Samples
on April 28, 2010. Id. at 42 (Page ID #5212). Also on that date, Trice transferred supervision of
their placement to the Children’s Center. Id. On May 2, 2010, the Children’s Center, Methodist,
and Trice held a conference to set the family’s visitation schedule, but neither the children nor
the parents were allowed to participate in the conference. Id. at 42–43 (Page ID #5212–13).
When Brent complained about the new visitation schedule, the Children’s Center told him that
this was the set schedule “whether he liked it or not.” R. 114 (First Am. Compl. at 77) (Page ID
#2359). A few days later, the Brents’ sons were late in arriving to the family’s first scheduled
visit. Id. When the Brents complained to the Children’s Center that their sons had not yet
arrived, the Children’s Center supervisor allegedly told the Brents that if they “didn’t stop
complaining she would suspend all visitation.” Id. Also during this visit, the Children’s Center
supervisor told the Brents in front of their children that “if they loved their children they would
take the plea deal” that had been offered. Id. at 78 (Page ID #2360). When the parents refused
to “admit to false allegations,” the Children’s Center supervisor announced that she was ending
all phone contact between the parents and their female children. Id.
Ultimately, a trial was held in Family Court from May 11, 2010 through May 13, 2010,
and a jury found that “one or more statutory grounds existed for the Family Court to exercise
jurisdiction over the Brent children.” R. 113 (Order at 3) (Page ID #2262). The children were
released to the Brents on June 2, 2010 but remained under DHS supervision. Id. After finding
that the conditions in the family’s home had improved and that the children’s needs were being
met, the Family Court ended its supervision on September 10, 2010. Id. at 3–4 (Page ID #2262–
63).
B. Procedural History
Nathaniel Brent first filed suit in federal court on February 22, 2011, levying a variety of
federal and state-law claims against seemingly every person or agency involved in the removal,
custody, and care of his five children. R. 1 (Compl.) (Page ID #1–29). On November 28, 2011,
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the district court dismissed Brent’s claims against all the “Judicial Defendants”—i.e., the Wayne
County Family Court judges and referees involved in Brent’s case. R. 113 (Order at 22) (Page
ID #2281). Among those defendants was Judge Leslie Smith, the Wayne County Family Court
judge whose stamped signature appeared on the order authorizing the removal of Brent’s
children. At the same time, the district court granted Brent leave to file an amended complaint,
but the district court instructed Brent not to reassert any claims against the Judicial Defendants
(or any other defendants who had been dismissed from the case). Id. Brent filed his first
amended complaint, R. 114 (First Am. Compl.) (Page ID #2283–2365), and moved for
reconsideration of the district court’s dismissal of his claims against the Judicial Defendants,
including Judge Smith, R. 115 (Pl. Mot. for Reconsideration) (Page ID #2366–90). The district
court denied Brent’s motion for reconsideration on November 15, 2012. R. 163 (Order at 7–16)
(Page ID #4118–27).
Also on November 15, 2012, the district court denied in part and granted in part various
dispositive motions filed in response to Brent’s amended complaint. As is relevant for the
purposes of this appeal, the district court dismissed all claims against Methodist and all but two
state-law claims against Children’s Center. Id. at 71–72 (Page ID #4182–83). The district court
held that Fourth and Fourteenth Amendment claims brought under § 1983 against the Wayne
County DHS in its official capacity could proceed, as could Brent’s various § 1983 and state-law
claims against Wenk, Sampson, Decormier-McFarland, Trice, McGehee, and Lamar. Id. at 72–
73 (Page ID #4183–84).
The individual State Defendants (Wenk, Sampson, Decormier-McFarland, Trice,
McGehee, and Lamar) appealed the district court’s order denying them immunity under federal
and state law. R. 168 (Notice of Appeal) (Page ID #4219). We held that the defendants were
entitled to qualified immunity from Brent’s § 1983 claims alleging that the individual State
Defendants violated his Fourth Amendment rights when they exceeded the scope of his consent
when speaking with Robert during the first home visit on January 20, 2010 and photographed the
interior of his home without consent during the second home visit on January 21, 2010. Brent v.
Wenk, 555 F. App’x 519, 524–27 (6th Cir. 2014). We further granted qualified immunity to the
individual State Defendants from Brent’s § 1983 claims alleging procedural and substantive
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violations of Brent’s Fourteenth Amendment due-process rights in parenting and raising his
children. Id. at 529–34. We agreed, however, with the district court’s denial of state-law
governmental immunity on Brent’s gross-negligence and intentional-infliction-of-emotional
distress claims. Id. at 535–37. Finally, we held that Brent lacked standing to pursue a claim
against Trice under Mich. Comp. Laws § 722.633(1) for her alleged failure to report the medical
neglect of Robert because Michigan law intended liability under the state statute to “be limited to
claims for damages by the identified abused child about whom no report was made.” Id. at 537(quoting Murdock v. Higgins, 559 N.W.2d 639, 646 (Mich. 1997)).
In the meantime, Wayne County DHS and the individual State Defendants had moved for
reconsideration of the November 15, 2012 order. They argued that Wayne County DHS is an
arm of the State, and therefore all claims against Wayne County DHS and the individual State
Defendants in their official capacities should be dismissed. R. 164 (Mot. for Reconsideration at
2) (Page ID #4187). On February 4, 2013, the district court granted this motion and entered
summary judgment in favor of Wayne County DHS and Wenk, Sampson, Lamar, McGehee,
Trice, and Decormier-McFarland as to all claims brought against them in their official capacities.
R. 171 (Order at 3–4) (Page ID #4225–26).
Children’s Center had also moved the district court to reconsider its November 15, 2012
order, arguing that the district court erred in allowing Brent’s two-remaining claims against
Children’s Center—a state-law claim for gross negligence and a state-law claim for intentional
infliction of emotional distress—to proceed. R. 165 (Mot. for Reconsideration 2) (Page ID
#4195). Children’s Center insisted that it was entitled to absolute immunity under state law from
these two claims. Id. The district court ultimately agreed and entered summary judgment in
Children’s Center’s favor on Brent’s gross-negligence and IIED claims. R. 199 (Order at 17)
(Page ID #4775).
On July 11, 2013, Robert Brent—who had turned eighteen years old on July 11, 2012—
moved to join his father as a plaintiff, arguing that he ought to able to assert his own claims
given that Brent lacked standing to vindicate the injuries suffered by Robert. R. 182 (Mot. to
Join at 1–2) (Page ID #4612–13). Because Robert failed to elucidate what claims he intended to
raise, the district court denied Robert’s motion “as presently written,” but instructed Brent to file
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a motion for leave to file a second amended complaint along with a proposed amended complaint
that names Robert as a plaintiff and includes his additional claims. R. 199 (Order at 16–17)
(Page ID #4774–75). Brent filed the motion for leave to amend the complaint along with a
proposed second amended complaint, but the district court denied the motion because the
proposed second amended complaint restated claims by Brent against parties who had already
been dismissed from the suit. R. 210 (Order at 15) (Page ID #4983). As is relevant for this
appeal, the district court instructed Brent to refile his motion for leave to file an amended
complaint, but to exclude from the proposed amended complaint any claims—by either Robert or
Brent—against the Judicial Defendants, Wayne County DHS or its employees in their official
capacities, or Children’s Center. Id. at 16–18 (Page ID #4984–86). The district court further
denied leave for Brent to file any federal-law claims against Methodist Children’s Home, though
it held that Robert could potentially allege a plausible claim against Methodist for gross
negligence. Id. at 17–18 (Page ID #4985–86).
On December 9, 2015, Brent refiled a motion for leave to file a proposed second
amended complaint and attached a new proposed amended complaint. R. 211 (Motion for Leave
to File Second Am. Compl.) (Page ID #4988–5051). On March 4, 2016, the district court
granted in part and denied in part Brent’s motion.1 First, the district court held that Robert could
join the case as a plaintiff, thereby rejecting Methodist’s argument that the statute of limitations
barred Robert’s request for joinder. R. 221 (Order at 22–23) (Page ID #5149–50). Second, the
district court reversed its earlier suggestion that Robert could assert a gross-negligence claim
against Methodist, holding instead that “concerns for ‘finality of judgments and expeditious
termination of litigation’” counseled against allowing “amendments asserting anew claims
against Methodist.” Id. at 24 (Page ID #5151). Third, the district court noted that all claims
against the City of Detroit and its police officers (“the City Defendants”) had been stayed
pending the City’s bankruptcy proceedings. Id. at 25 (Page ID #5152). Because the stay had
been lifted in February 2016, the district court held that Brent’s claims against the officers could
now proceed via the second amended complaint. Id. Fourth, the district court rejected Brent’s
efforts to assert new claims under the Michigan Constitution against Wenk, Sampson, and Trice
1On October 3, 2014, this case was reassigned from Judge Julian Abele Cook to Judge Judith Levy.
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 9
or to resurrect § 1983 claims against any of the individual State Defendants, even to the extent
those claims were now being asserted on behalf of Robert rather than Brent. Id. at 27–34 (Page
ID #5154–61). The district court allowed, however, plaintiffs to proceed with their preexisting
IIED claims against various individual State Defendants, to proceed with Robert’s failure-to-
report-medical-neglect claim against Trice, and to add new state-law eavesdropping claims
against Wenk, Sampson, and Decormier-McFarland. Id. at 35–36 (Page ID #5162–63). Fifth,
the district court sua sponte struck all of plaintiffs’ gross-negligence claims from the proposed
second amended complaint, reasoning that Michigan law does not recognize “gross negligence”
as an independent cause of action when “allegations of an intentional tort have been made.” Id.
at 26–27, 38–39 (Page ID #5153–54, 5166–67). Brent, with Robert now added as a plaintiff,
then filed the second amended complaint.
The City Defendants moved for judgment on the pleadings, which the district court
granted on November 9, 2016. R. 250 (Order at 10) (Page ID #5531). The individual State
Defendants also moved for judgment on the pleadings on the three state-law claims remaining
against these defendants (IIED, eavesdropping, and failure to report medical neglect). R. 230
(Mot. for J. on the Pleadings) (Page ID #5302). The district court determined that the individual
State Defendants are entitled to absolute immunity under state law from plaintiffs’ IIED and
eavesdropping claims, but held that Trice is not entitled to immunity under the Governmental
Tort Liability Act from Robert’s failure-to-report-medical-neglect claim. R. 249 (Order at 3–10)
(Page ID #5513–20). Plaintiffs moved for reconsideration, arguing that the district court erred in
dismissing all claims against the City Defendants and erred in granting state-law immunity on
the IIED claims against the State Defendants. See R. 253 (Mot. for Reconsideration at 1) (Page
ID #5543); 257 (Mot. for Reconsideration at 1–2) (Page ID #5589–90). As to their IIED claims
against the State Defendants, plaintiffs insisted that the Sixth Circuit had already held in its 2014
decision that the individual State Defendants were not entitled to immunity from plaintiffs’ IIED
claims. R. 257 (Mot. for Reconsideration at 1–2) (Page ID #5589–90). The State Defendants, in
turn, moved for reconsideration on the district court’s decision not to grant statutory immunity to
Trice from plaintiffs’ claim of failure to report medical neglect. R. 255 (Mot. for
Reconsideration at 2–5) (Page ID #5577–80).
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On March 17, 2017, the district court affirmed its decision as to the City Defendants but
reversed its earlier order as to the State Defendants, holding that (1) Trice was, in fact, entitled to
statutory immunity from plaintiffs’ claim of failure to report medical neglect, and (2) the Sixth
Circuit had already denied the individual State Defendants “state-law immunity” as to plaintiffs’
IIED claims. R. 261 (Order at 3–4, 6–8) (Page ID #5650–51, 5653–55). Although plaintiffs’
eavesdropping claims were not before the Sixth Circuit when it denied the State Defendants
qualified immunity on the IIED claims, the district court nevertheless reinstated plaintiffs’
eavesdropping claims so that “all of plaintiffs’ claims [would be] treated uniformly and fairly
throughout this case.” Id. at 5 (Page ID #5652).
Plaintiffs then moved to alter or amend the district court’s latest order to treat its ruling
“as a final order as to all claims and Defendants previously dismissed or rejected by this Court or
its predecessor.” R. 262 (Mot. to Alter or Amend) (Page ID #5658–59). The State Defendants
filed a statement explaining that they “have no objection to the Court directing that the March
17, 2017 order be a final order for the purpose of an immediate appeal.” R. 263 (Statement at 2)
(Page ID #5666). On April 11, 2017, the district court granted the motion and “certifie[d] for
appeal the decision to grant qualified and statutory immunity to the City Defendants, and the
decision to grant State Defendant Shevonne Trice statutory immunity.” R. 264 (Order at 6)
(Page ID #5673).
The individual State Defendants quickly filed a notice of appeal from the March 17, 2017
order insofar as it denied them state-law immunity from plaintiffs’ state-law claims. R. 265
(Notice of Appeal at 2) (Page ID #5676). A few days later, plaintiffs filed a motion asking the
district court to amend its April 11, 2017 order to allow plaintiffs to appeal the district court’s
orders as to “all claims and defendants that have been dismissed from this suit,” and not just
plaintiffs’ Fourth Amendment claims against the City Defendants and the granting of statutory
immunity to Trice. R. 267 (Mot. to Alter or Amend at 2) (Page ID #5680). Plaintiffs argued that
the district court’s April 11, 2017 order, as it currently stood, would create a “piecemeal appeal
that should be avoided.” Id.
In response, the State Defendants moved the district court to reconsider its denial of state-
law immunity to the individual State Defendants, as set forth in the district court’s March 17,
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 11
2017 order. R. 268 (Mot. for Reconsideration at 1–2) (Page ID #5696–97). Although they had
already filed a notice of appeal from the district court’s March 17, 2017 order, the individual
State Defendants argued that, if the district court opted instead to reconsider that order, “all of
the claims [would] be final orders under 28 U.S.C. § 1291 and may proceed to appeal.” Id. at 2(Page ID #5697). The district court determined that it had jurisdiction to reconsider its March
17, 2017 order, notwithstanding the State Defendants’ pending appeal, and held that the
individual State Defendants were in fact entitled to absolute immunity against plaintiffs’ IIED
and eavesdropping claims. R. 270 (Order at 6) (Page ID #5725). As that decision resolved all
claims, the district court entered final judgment and dismissed plaintiffs’ complaint with
prejudice. R. 271 (Judgment) (Page ID #5727). Plaintiffs filed a timely notice of appeal, R. 281
(Notice of Appeal) (Page ID #5844), and plaintiffs’ appeal was subsequently consolidated with
the individual State Defendants’ appeal from the district court’s earlier denial of state-law
immunity as to plaintiffs’ IIED and eavesdropping claims.
II. DISCUSSION
As the above background section makes abundantly clear, this case involves a wide
variety of claims, defendants, and procedural postures. To the extent possible, we address
plaintiffs’ claims against defendants in the order in which they were dismissed by the district
court.
A. Judge Leslie Smith
Plaintiffs argue that the district court erred in dismissing the claims Brent levied against
Judge Smith in his initial complaint. In particular, plaintiffs argue that Judge Smith violated
their Fourth Amendment right to be free from unlawful searches and seizures by “institut[ing] a
policy that allowed probation officers to rubber stamp Judge Smith’s ‘signature’ on orders to
remove children.” Appellant Br. at 18. Though this precise allegation did not appear in Brent’s
initial complaint, Brent asked the district court for leave to amend his complaint to raise this
claim. See R. 115 (Pl. Mot. for Reconsideration at 3–4) (Page ID #2376–77). The district court
denied Brent’s request, reasoning that any such amendment would be futile. See R. 163 (Order
at 16) (Page ID #4127). We review de novo a district court’s determination that proposed
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amendments to a complaint could not survive a motion to dismiss. Martin v. Associated Truck
Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986). Because the district court would have been
required to dismiss Brent’s amended complaint for lack of jurisdiction, we now AFFIRM.
The Rooker-Feldman doctrine precludes federal district courts from hearing “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
The Rooker-Feldman doctrine occupies “narrow ground,” id., barring only claims where “the
source of the injury is the state court decision,” McCormick v. Braverman, 451 F.3d 382, 393
(6th Cir. 2006). If there is instead “some other source of injury, such as a third party’s actions,
then the plaintiff asserts an independent claim.” Id. In short, where a plaintiff does not seek
“redress for an injury allegedly caused by the state court decision itself,” but instead “seeks
redress for an injury allegedly caused by the defendant’s actions,” Rooker-Feldman does not
apply. Id. at 393 (quoting Davani v. Virginia Dep’t of Transp., 434 F.3d 712, 717 (4th Cir.
2006)).
Here, Brent claims that he is challenging Judge Smith’s actions—i.e., her institution of
the rubber-stamping policy—and not the child-removal order itself. Where, however, an
allegedly unlawful policy is inextricably intertwined with a state-court order, we have previously
differentiated between claims challenging the policy going forward and claims challenging the
policy as applied in the past. Our decision in Shafizadeh v. Bowles, 476 F. App’x 71 (6th Cir.
2012), provides an apt analogy. There, a federal plaintiff alleged that the state court’s practice of
allowing law clerks to issue Emergency Protective Orders was unconstitutional. Id. at 72. In
pursuing this claim, the Shafizadeh plaintiff asserted that a fresh-out-of-law-school law clerk had
granted a request by the plaintiff’s then-wife for an Emergency Protective Order that required the
plaintiff to surrender his guns. Id. We held that the Rooker-Feldman doctrine did not bar the
plaintiff’s claim, notwithstanding his complaint’s focus on “past injuries suffered as a result of
. . . the issuance of the Emergency Protective Order,” because the complaint was not “focused
solely on those past injuries.” Id. at 72–73 (emphasis added). Because the Rooker-Feldman
doctrine does not bar “forward-looking, general challenges to state-court practices,” we held that
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the doctrine “was not a basis for dismissing [the plaintiff’s] entire complaint.” Id. at 73. In other
words, while the Rooker-Feldman doctrine does not bar a plaintiff from attempting to “clear
away” an allegedly unconstitutional state-law policy going forward, it does prevent a plaintiff
from seeking “relief against the discipline imposed upon him” by application of an allegedly
unlawful policy in the past. Evans v. Cordray, 424 F. App’x 537, 540 (6th Cir. 2011) (quoting
Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 227 (7th Cir. 1993)).
We see plain parallels between Shafizadeh and this case. Like the plaintiff in Shafizadeh,
Brent alleges that he was harmed by a policy that purportedly enabled unqualified persons to
enter legal orders. Here, however, Brent does not wish merely to “clear away” Judge Smith’s
allegedly unlawful policy for future cases, but instead wants this court to hold that Judge Smith’s
application of her policy to the child-removal order entered against him was unconstitutional.
This is precisely the sort of “specific grievance over specific decisions” that “the Rooker-
Feldman doctrine intended to bar in the lower federal courts.” Lawrence v. Welch, 531 F.3d 364,
371 (6th Cir. 2008) (quoting Loriz v. Connaughton, 233 F. App’x 469, 475 (6th Cir. 2007)).
Thus, the district court lacked jurisdiction to consider Brent’s claim that Judge Smith’s policy
violated the Fourth Amendment as applied to the removal order issued in this case.
Based on his first amended complaint (in which Brent reasserted and expanded on his
claims against Judge Smith, notwithstanding the district court’s instructions to the contrary),
Brent seemingly also desires a declaration that Judge Smith’s policy is unconstitutional on a
forward-going basis. See R. 114 (First Am. Compl. at 81) (Page ID #2363). Though the Rooker-
Feldman doctrine would not preclude such a claim, Shafizadeh, 476 F. App’x at 72–73, Brent
has not adequately alleged standing to pursue such a facial challenge. “[A]llegations of past
injury alone are not sufficient to confer standing” in declaratory-judgment actions. Fieger v.
Ferry, 471 F.3d 637, 643 (6th Cir. 2006). Rather, a plaintiff must “demonstrate actual present
harm or a significant possibility of future harm” resulting from the state court’s continued
reliance on Judge Smith’s policy. Id. (quoting Peoples Rights Org., Inc. v. City of Columbus,
152 F.3d 522, 527 (6th Cir. 1998)). Having failed to include allegations of likely future harm in
his complaint or amended complaint, Brent has not established standing to bring a facial
challenge against Judge Smith’s alleged rubber-stamping rule. Thus, the district court lacked
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jurisdiction over the entirety of Brent’s complaint against Judge Smith and properly dismissed
those claims.
B. Methodist Children’s Home Society and the Children’s Center
1. Claims Brought Against Methodist and Children’s Center under
42 U.S.C. § 1983The district court entered judgment in defendants’ favor on all claims brought under
42 U.S.C. § 1983 against Methodist and the Children’s Center because Brent—the only plaintiff
in the case at that time—had failed to establish that either entity was a “state actor.” R. 163
(Order at 29) (Page ID #4140). The district court announced that it was entering summary
judgment as to these claims, but it is clear from the district court’s reasoning that it applied the
motion-to-dismiss standard in reaching its decision. See R. 163 (Order at 21–27) (Page ID
#4132–38). When ruling on the issue, the district court never once mentioned any of the
materials that the parties had submitted in their motions or responses. Id. Rather, the district
court examined Brent’s “relevant arguments” and rejected each as a matter of law. Id. at 23(Page ID #4134). In such circumstances, we feel compelled to accept the Children’s Center’s
interpretation that “the District Court did not consider evidence beyond the pleadings” when
assessing whether the Children’s Center or Methodist were state actors. Children’s Center
Appellee Br. at 14 n.2. As “we are not bound to adhere to the label attached to the trial court’s
disposition of the case,” United Bhd. of Carpenters, Dresden Local No. 267 v. Ohio Carpenters
Health & Welfare Fund, 926 F.2d 550, 558 (6th Cir. 1991), we conclude that the district court
dismissed Brent’s claims under the standard set forth in Federal Rule of Civil Procedure 12(b)
and review the decision accordingly.
We review de novo a dismissal under Rule 12(b)(6), and we will affirm the district court
only if the complaint lacks “sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Marie v. Am. Red Cross, 771 F.3d 344, 361 (6th Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In reviewing the district court’s judgment,
we construe the complaint “in the light most favorable to [Brent],” accept all allegations in the
complaint as true, and draw all reasonable inferences in Brent’s favor. Gavitt v. Born, 835 F.3d
623, 639–40 (6th Cir. 2016). Additionally, we liberally construe pro se filings—like Brent’s—
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 15
and hold such complaints “to less stringent standards.” Williams v. Curtin, 631 F.3d 380, 383
(6th Cir. 2011) (quoting Martin v. Overton, 391 F.3d 710, 712 (6th Cir. 2004)). Viewing Brent’s
first amended complaint and plaintiffs’ second amended complaint in this way, plaintiffs have
alleged enough facts to plausibly state that Methodist and the Children’s Center are state actors.
We therefore REVERSE the district court’s resolution of plaintiffs’ § 1983 claims against
Methodist and Children’s Center and REMAND for further proceedings consistent with this
opinion.
To initiate claims against Methodist and the Children’s Center under 42 U.S.C. § 1983,
plaintiffs must demonstrate that these entities are state actors. Reguli v. Guffee, 371 F. App’x
590, 600 (6th Cir. 2010). Though we have developed three separate tests for assessing whether a
private entity is a state actor (the so-called “public functions test,” the “state compulsion test,”
and the “nexus test,” id.), the Supreme Court has made clear that all of our various “criteria” boil
down to a core question: whether “there is such a ‘close nexus between the State and the
challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State
itself.’” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001).
(quoting Jackson v. Met. Edison Co., 419 U.S. 345, 351 (1974)). Through its cases, the Court
has “identified a host of facts that can bear on the fairness of such an attribution,” id. at 296,
including whether “a nominally private entity . . . is controlled by an ‘agency of the State,’” id.
(quoting Com. of Pa. v. Bd. of Directors, 353 U.S. 230, 231 (1957)), whether the private entity
“has been delegated a public function by the State,” id. (citing West v. Atkins, 487 U.S. 42, 56
(1988)), and whether the “government is ‘entwined in [the private organization’s] management
or control,’” id. (quoting Evans v. Newton, 382 U.S. 296, 301 (1966)).
In assessing whether a “close nexus” exists “between the State and the challenged
action,” Brentwood, 531 U.S. at 295, we are guided by the Supreme Court’s analysis in West, in
which the Court held that a physician employed by North Carolina to provide medical services to
state prison inmates acted under the color of state law for the purposes of 42 U.S.C. § 1983 when
he treated a prisoner’s injuries. 487 U.S. at 54. As the Court explained, North Carolina has
constitutional obligations to provide adequate medical care to inmates, and it contracted with
private physicians “to fulfill this obligation.” Id. at 54–55. When the physician-defendant in
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West treated inmates pursuant to the state regulations and contractual agreements that
“authorized and obliged” his care, he did so “clothed with the authority of state law.” Id.(quoting United States v. Classic, 313 U.S. 299, 326 (1941)).
The Court’s reasoning in West governs our case. Michigan is constitutionally required to
protect children who are wards of the state from “the infliction of unnecessary harm,” Lintz v.
Skipski, 25 F.3d 304, 305 (6th Cir. 1994) (quoting Meador v. Cabinet for Human Resources, 902
F.2d 474, 476 (6th Cir. 1990)), and to protect “[t]he fundamental liberty interest of natural
parents in the care, custody, and management of their child[ren].” Santosky v. Kramer, 455 U.S.
745, 753 (1982); see also Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006) (“[T]he parent-
child relation gives rise to a liberty interest that a parent may not be deprived of absent due
process of law.”). Here, Michigan assumed these constitutional obligations when it removed the
Brent children from their home, and Michigan subsequently contracted with Children’s Center
and Methodist to fulfill its duties. Children’s Home, in particular, was tasked with supervising
foster placements and with making recommendations to the court regarding the children’s care
and custody, R. 114 (Am. Compl. at 49, 78–79) (Page ID #2331, 2360–61), and both Methodist
and Children’s Center played active roles in overseeing family visits, developing service plans,
and providing counseling services to the children, id. at 50, 66 (Page ID #2332, 2348). Plaintiffs
have therefore plausibly alleged that, “in fulfilling its affirmative obligation[s], DHS enlisted the
service of [Methodist and Children’s Home] and the [three] entities worked together” to manage
the children’s custody and care. Lethbridge, 2007 WL 2713733, at *4; see also Hall v. Smith,
497 F. App’x 366, 375 n.13 (5th Cir. 2012) (leaving open whether “a private child placement
agency could be considered a state actor with respect to the foster child placement decisions it
makes pursuant to a contractual relationship with a state”).
If anything, Children’s Center and Methodist may be even more closely entangled with
the state than the physician in West, given the extent to which Michigan regulates and dictates
the organizations’ behavior vis-à-vis the children in their care. See, e.g., Mich. Comp. Laws
§ 400.14(q), id. §§ 722.111 et seq. Of course, “[s]tate regulation of a private entity, even if it is
extensive and detailed, is not enough to support a finding of state action.” Wolotsky v. Huhn,
960 F.2d 1331, 1336 (6th Cir. 1992). But where, as here, there exists a close nexus “between the
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challenged action[s] and the regulatory scheme alleged to be the impetus behind the private
action[s],” the state action requirement has been satisfied. Id. Given that a number of plaintiffs’
allegations concern conduct the child-care organizations and DHS employees undertook
together, plaintiffs have pleaded sufficiently that Methodist and the Children’s Center are state
actors to survive a motion to dismiss.
Because the district court declined to consider Methodist’s and Children’s Center’s other
arguments regarding plaintiffs’ § 1983 claims, we leave it to the district court to resolve these
issues in the first instance. See Stanek v. Greco, 323 F.3d 476, 480 (6th Cir. 2003). That said,
we note that plaintiffs’ ability to survive a motion to dismiss with respect to the state-actor
question does not necessarily mean that they could survive summary judgment on their § 1983
claims. On remand, plaintiffs must point to record evidence creating a genuine issue of material
fact that Methodist and the Children’s Center are state actors. See Searcy v. City of Dayton,
38 F.3d 282, 286 (6th Cir. 1994). In addition, the district court must determine whether plaintiffs
have raised cognizable claims under § 1983. The district court did not address this argument
below, Methodist only cursorily briefed the issue on appeal, and the Children’s Center did not
press the issue at all. See McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court
to . . . put flesh on its bones.” (alteration in original) (quoting Citizens Awareness Network, Inc.
v. U.S. Nuclear Regulatory Comm’n, 59 F.3d 284, 294 (1st Cir. 1995)). So this is not the time to
decide whether plaintiffs have stated a claim under § 1983. Nothing in our opinion today should
be read to hold that they have. Accordingly, the district court can consider both the state actor
and § 1983 issues at summary judgment.
2. Robert’s State-Law Claims Against Methodist2
Because the district court had already dismissed Methodist from the case before
considering whether to grant Robert’s request to add claims as a new plaintiff, the district court
prohibited Robert from bringing any new claims against Methodist. R. 221 (Order at 24) (Page
ID #5151). The district court also determined that Robert’s assertions of an IIED claim against
2Plaintiffs have not appealed the district court’s denial of Brent’s state-law claims against Methodist; those
claims are therefore now waived.
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Methodist would be “futil[e],” as his allegations did not “come close” to showing that
Methodist’s actions “would cause ‘distress so severe that no reasonable man could be expected
to endure it.’” R. 210 (Order at 17) (Page ID #4985) (quoting R. 163 (Order at 64) (Page ID
#4175)). Plaintiffs now appeal the district court’s denial with respect to Robert’s IIED claim and
negligence claim against Methodist. Appellant Br. at 41–42.
We review de novo the district court’s determination that Robert’s proposed IIED claim
could not survive a motion to dismiss, Associated Truck Lines, 801 F.2d at 248, and we now
AFFIRM. To set forth a claim for IIED under Michigan law, a plaintiff must show extreme and
outrageous conduct, intent or recklessness, causation, and severe emotional distress. Jones v.
Muskegon Cty., 625 F.3d 935, 948 (6th Cir. 2010). “Such conduct must be ‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious and utterly intolerable in a civilized community.’” Id. (quoting Graham v.
Ford, 604 N.W.2d 713, 716 (Mich. Ct. App. 1999)).
The allegations set forth in plaintiffs’ first proposed second amended complaint, R. 201
(First Proposed Second Am. Compl. at 73–80 (Page ID #4861–68), second proposed amended
complaint, R. 211 (Second Proposed Second Am. Compl. at 56–60) (Page ID #5045–49), and
second amended complaint, R. 222 (Second Am. Compl. at 56–60) (Page ID #5226–5230), fail
to set forth a plausible IIED claim against Methodist. To start, “the complaint is devoid of
allegations that” Methodist gave Robert expired medication or denied him access to a physician
“for the purposes of inflicting severe emotional distress.” Cebulski v. City of Belleville, 401
N.W.2d 616, 618–19 (Mich. Ct. App. 1986). Nor do Robert’s allegations indicate that he
actually suffered severe emotional distress. Finally, and perhaps most importantly, Methodist’s
alleged conduct here simply does not amount to “extreme and outrageous conduct” under
Michigan law. In Jones, we considered whether a deceased prison inmate (through his personal
representative) could survive summary judgment on an IIED claim against nurses who had
denied him access to a physician for months, even though the inmate was “visibly ill and not
eating meals” and had lost forty-six pounds in a six-month period. Jones, 625 F.3d at 938–39.
We concluded that even if the nurses’ decision to ignore the decedent’s request for medical
assistance “for several months . . . could reasonably be construed as deliberately indifferent to
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Jones’s serious medical needs, it does not establish that they acted intentionally or in a manner
that is sufficiently extreme or serious to satisfy [an IIED] claim” under Michigan law. Id. at 948.
If the behavior at issue in Jones was insufficient to establish an IIED claim as a matter of law,
then so too is the alleged misconduct here. The district court therefore properly barred Robert’s
IIED claim on the ground that allowing such an amendment would be futile.
The district court barred Robert from asserting negligence and gross-negligence claims
against Methodist on the ground that Methodist had already been fully dismissed from the
litigation. R. 221 (Order at 24) (Page ID #5151). Because we now hold that the district court
erred in dismissing Brent’s federal-law claims against Methodist based on his purported failure
to establish that Methodist was a state actor, we REMAND this case to the district court to
decide in the first instance whether Robert’s negligence and gross-negligence claims against
Methodist should proceed. We agree, however, with the district court’s rejection of Methodist’s
statute of limitations argument. Robert filed a motion to join as plaintiff on July 11, 2013, R.
182 (Mot. to Join as Pl.) (Page ID #4612–13)—the last day that he could bring tort claims
against Methodist under Michigan law. See Mich. Comp. Laws §§ 600.5805(2); 600.5851(1).
Though the motion failed to satisfy the requirements for initiating a complaint, the Supreme
Court has “allowed equitable tolling in situations where the claimant has actively pursued his
judicial remedies by filing a defective pleading during the statutory period.” Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990). The district court therefore did not abuse its discretion
in allowing equitable tolling in this case. See Truitt v. Cty. of Wayne, 148 F.3d 644, 648 (6th Cir.
1998).
3. Plaintiffs’ State-Law Claims Against the Children’s Center
In his first amended complaint, Brent asserted two state-law claims against the Children’s
Center. First, Brent alleged that the Children’s Center intentionally inflicted emotional distress
on him (1) by telling him and his wife, in front of their children, that they would accept the plea
deal they had been offered in Family Court if they loved their children, and (2) by cutting off
phone contact between the Brents and their children in an effort to convince the parents to take
the plea deal. R. 114 (Am. Compl. at 81) (Page ID #2363). Second, the Children’s Center was
allegedly “grossly negligent in their affirmative duty to help reunify the family.” Id. The district
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court ultimately determined that the Children’s Center was entitled to immunity under Martin v.
Children’s Aid Soc., 544 N.W.2d 651 (Mich. 1996). We AFFIRM.
Martin shields social workers from liability for “initiating and monitoring child
placement proceedings and placements.” 544 N.W.2d at 654. Unlike absolute immunity under
federal law, absolute immunity under Martin is “not limited to ‘quasi-prosecutorial or quasi-
judicial’ actions.” Braverman v. Hall, No. 253619, 2005 WL 1123889, at *1 (Mich. Ct. App.
May 12, 2005). The Michigan courts have justified Martin’s broad grant of immunity by
reasoning that state courts “regularly review[] the placement recommendations” made by social
workers, Martin, 544 N.W.2d at 656, and therefore parents distressed by social workers’ actions
“may avail themselves of the safeguards built into the adjudication process,” McCarthy v.
Scofield, No. 284129, 2009 WL 3235639, at *6 (Mich. Ct. App. Oct. 8, 2009).
Plaintiffs argue, first, that the district court erred in granting the Children’s Center
immunity under Martin because the Children’s Center failed to plead this affirmative defense in
its initial responsive pleading. Federal law governs whether a defense has been waived in federal
court, but state law governs which defenses must be pleaded affirmatively to avoid waiver. See
Roskam Baking Co. v. Lanham Mach. Co., 288 F.3d 895, 901 (6th Cir. 2002). Here, both parties
seem to agree that absolute immunity under Martin is an affirmative defense that can be waived
if not properly pleaded, and we agree. As the Supreme Court of Michigan has reasoned that
governmental immunity to individuals is an affirmative defense that individual officials bear the
burden of raising and proving, we conclude that the same logic applies to absolute immunity
under Martin. See Odom v. Wayne Cty., 760 N.W.2d 217, 226–28 (Mich. 2008). The question
therefore becomes whether, under federal law, the Children’s Center waived its state-law
immunity defense.
Federal Rule of Civil Procedure 8(c) requires defendants to raise affirmative defenses in
their first responsive pleadings; the failure to do so may result in waiver of the defense. Horton
v. Potter, 369 F.3d 906, 911 (6th Cir. 2004); Kennedy v. City of Cleveland, 797 F.2d 297, 300
(6th Cir. 1986) (“Since immunity must be affirmatively pleaded, it follows that failure to do so
can work a waiver of the defense.”). “It is well established, however, that failure to raise an
affirmative defense by responsive pleading does not always result in waiver.” Moore, Owen,
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Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993), as amended on denial of reh’g
(Aug. 31, 1993). “[T]he purpose of Rule 8(c) is to give the opposing party notice of the
affirmative defense and a chance to rebut it.” Id. “Thus, if a plaintiff receives notice of an
affirmative defense by some means other than pleadings, the defendant’s failure to comply with
Rule 8(c) does not cause the plaintiff any prejudice.” Id. (quoting Grant v. Preferred Research,
Inc., 885 F.2d 795, 797 (11th Cir. 1989)).
Here, the Children’s Center did not raise Martin immunity in its answer to Brent’s initial
complaint, see R. 41 (Answer at 21–22) (Page ID #265–66), but it did raise the defense in its first
filing with the district court following Brent’s filing of his amended complaint, see R. 118 (Mot.
to Dismiss at 7–10) (Page ID #2567–70). Given that the Children’s Center promptly raised the
defense as soon as Brent filed a superseding complaint, we cannot conclude that plaintiffs were
prejudiced in any way by the Children’s Center’s failure to raise the defense earlier. This is not a
case where a defendant raised an immunity defense for the first time “days before the trial was
scheduled to commence,” Yates v. City of Cleveland, 941 F.2d 444, 449 (6th Cir. 1991), or after
the close of discovery, when a plaintiff’s opportunity to gather relevant evidence in rebuttal
would be harmed, Henricks v. Pickaway Corr. Inst., 782 F.3d 744, 751 (6th Cir. 2015). Under
the circumstances of this case, we conclude the Children’s Center did not waive its defense under
Martin.3
Plaintiffs nevertheless argue that the Children’s Center is not entitled to Martin immunity
on the merits. Here, again, we disagree. Plaintiffs’ argument, essentially, is that the Children’s
Center had no authority to attempt to coerce plaintiffs into taking a deal, and therefore they
cannot be immunized for this conduct. Appellant Br. at 43–44. We are aware of no support in
Michigan law for this claim. Indeed, the Martin court specifically granted immunity to
defendants who had been accused of “bad faith,” which would appear to cover plaintiffs’
allegations in this case. See 544 N.W.2d at 654. At bottom, Martin immunity does not arise out
of Michigan’s governmental immunity statute, id. at 655 n.5, and thus, unlike that statute, its
protections are not limited to behavior that an officer “reasonably believes . . . [to be] within the
3Because we hold that the Children’s Center did not waive its immunity under Martin, we need not decide
whether plaintiffs waived their waiver argument by failing to raise it earlier.
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scope of his or her authority,” Mich. Comp. Laws § 691.1407(2)(a). The district court therefore
properly granted the Children’s Center absolute immunity from plaintiffs’ state-law claims.
C. Wayne County DHS and the Individual State Defendants in Their Official Capacities
The Eleventh Amendment bars suits against a state or its agencies in federal court unless
the state consents to suit or Congress abrogated states’ immunity with respect to certain claims.
Timmer v. Mich. Dep’t of Commerce, 104 F.3d 833, 836 (6th Cir. 1997). Municipalities and
municipal agencies “generally do not receive Eleventh Amendment immunity.” Denton v.
Bedinghaus, 40 F. App’x 974, 978 (6th Cir. 2002). “However, when acting on a particular issue
or in a particular area, a local government official or entity may serve as an alter ego or arm of
the state and, in that capacity, it may receive Eleventh Amendment protection.” Id.Here, the district court initially determined that Wayne County DHS and its employees
were not entitled to sovereign immunity. See R. 163 (Order at 31–32) (Page ID #4142–43).
Upon reconsideration, however, the district court held that Wayne County DHS served as an
“arm of the state” in its dealings with the Brent family, and therefore both the agency and its
employees were entitled to immunity from claims brought against them in their official
capacities. R. 171 (Order at 3–4) (Page ID #4225–26). We review de novo the district court’s
grant of summary judgment in defendants’ favor, and we make all reasonable inferences in
plaintiffs’ favor. Timmer, 104 F.3d at 842. Summary judgment is appropriate if a movant shows
“that there is no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). As the district court properly granted summary
judgment to defendants on these claims, we AFFIRM.
Wayne County DHS, as the entity asserting entitlement to sovereign immunity, bears the
burden of showing that it is in fact an arm of the state. Lowe v. Hamilton Cty. Dep’t of Job
& Family Servs., 610 F.3d 321, 324 (6th Cir. 2010). Whether Wayne County DHS is an “arm of
the state” turns on four factors: (1) the State of Michigan’s “potential legal liability for a
judgment against” Wayne County DHS; (2) “the language employed by state courts and state
statutes to describe” Wayne County DHS, “as well as the degree of control and veto power
which the state has over” Wayne County DHS; (3) “whether state or local entities appoint
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[Wayne County DHS] board members”; and (4) “whether [Wayne County DHS’s] functions fall
under the traditional purview of state or local government.” Id. at 325.
“The state’s potential legal liability for a judgment against the defendant ‘is the foremost
factor’ to consider in our sovereign immunity analysis.” Id. (quoting Ernst v. Rising, 427 F.3d
351, 359 (6th Cir. 2005)). Here, state law strongly suggests, although perhaps does not
conclusively establish, that the State of Michigan would be responsible for judgments entered
against Wayne County DHS. To start, the Michigan legislature abolished county departments of
social services in 1975 and replaced them with a single statewide Department of Human Services
(formerly called the Family Independence Agency). See Mich. Comp. Laws §§ 401.1 et seq.
Numerous district courts have thereby concluded that county-level “child protective services
offices are therefore not county agencies, but are merely local offices of the state DHS.” See,
e.g., Bradford v. Child Protective Servs. of Mich. Genesee Cty., No. 12-CV-13718, 2013 WL
4084756, at *4 (E.D. Mich. Aug. 13, 2013). Given that county DHS offices are merely local
subdivisions of the state DHS, and given that state agencies are required to pay for court
judgments, it follows that the State of Michigan—and not Wayne County—is liable for
judgments against Wayne County DHS. See Mich. Comp. Laws § 18.1396.
The second and third factors also point strongly in favor of treating Wayne County DHS
as an arm of the state. Once the “county department of social services . . . [was] made
structurally a part of the state department of social services,” all employees of the county
departments became employees of the state and became members of the state employees
retirement system. Mich. Att’y Gen. Op. 4973 (Apr. 16, 1976). The state allocates and
distributes funding for county DHS offices, Mich. Comp. Laws §§ 400.14, 400.18, and Michigan
DHS appoints the director, employees, and assistants of each county DHS office, id. § 400.45.
Moreover, the state director of social services appoints one of the three members of each
county’s board, id. § 400.46, and the state department director may organize up to three counties
into a single administrative unit “for purposes of administrative efficiency.” Id. § 400.48.
Finally, although county DHS departments are responsible for investigating “matters pertaining
to dependent, neglected, and delinquent children,” id. § 400.55(h), the boards of the county DHS
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offices must “cooperate” with Michigan DHS “in handling the welfare and relief problems and
needs of the people of its county.” Id. § 400.53.
As to the fourth factor, we conclude that Wayne County DHS’s “functions cannot be
characterized neatly as completely within the traditional purview of either local or state
government.” Lowe, 610 F.3d at 331–32. However, “because the other three relevant factors
decidedly weigh” in favor of treating Wayne County DHS as an arm of the state, we hold that the
district court’s holding to this effect was proper. See id. at 332.
Seeking to bypass this conclusion, plaintiffs argue that Wayne County DHS waived its
immunity defense by failing to brief the issue sufficiently in its initial motion for summary
judgment. Appellant Br. at 29–30. Although a state agency may waive its sovereign immunity
and consent to suit by voluntarily appearing and defending against the merits of a case in federal
court, we have not required an agency to make a full-throated assertion of its immunity in its
initial dealings with the court to avoid waiver. See Boler v. Earley, 865 F.3d 391, 410–11 (6th
Cir. 2017), cert. denied, 138 S. Ct. 1281 (2018), and cert. denied, 138 S. Ct. 1285 (2018), and
cert. denied, 138 S. Ct. 1294 (2018). In Boler, for instance, we held that the State of Michigan
and various agencies had not waived their sovereign immunity when they argued against the
merits of plaintiffs’ motion for a preliminary injunction and submitted a joint statement of
resolved and unresolved issues without mentioning sovereign immunity, and they did not invoke
their sovereign immunity until after the district court prompted them to submit a supplemental
brief of their jurisdictional arguments. Id. Given that Wayne County DHS undeniably invoked
its sovereign immunity in its initial motion for summary judgment, and failed only to support
adequately this invocation with sufficient argument or evidence, see R. 50 (Mot. for Summary J.
at 20–21 (Page ID #309–10), we do not believe that Wayne County DHS waived the defense or
consented to suit.
Finally, plaintiffs argue that the Eleventh Amendment does not apply to suits brought by
a citizen against his own state for violations of the Fourteenth Amendment because (1) the
Eleventh Amendment only bars suits by citizens of another state or a foreign county; and
(2) plaintiffs could sue directly under the Due Process Clause of the Fourteenth Amendment,
which “limits a state’s sovereignty” with regard to due-process violations. Appellant Br. at 32.
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This argument is wrong on both fronts. First, as the Supreme Court has long recognized, the
Eleventh Amendment protects states from suits by their own citizens. Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 140–41 (1984). Second, the Fourteenth Amendment does not
create a private right of action; instead, Ҥ 1983 provides a cause of action for all citizens injured
by an abridgement of th[e] protections” set forth in “the Equal Protection and Due Process
Clauses of the Fourteenth Amendment.” Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 611
(2008) (Stevens, J., dissenting) (quoting Collins v. Harker Heights, 503 U.S. 115, 119–20
(1992)). As “[§] 1983 does not abrogate Eleventh Amendment immunity,” Boler, 865 F.3d at
410, sovereign immunity bars plaintiffs’ claims against Wayne County DHS in this case.
D. Mia Wenk, Shevonne Trice, Heather Decormier-McFarland, Monica Sampson,
Charlotte McGehee, and Joyce Lamar (“State Defendants”)
Several issues remain on appeal with respect to the individual State Defendants in their
personal capacities. We address first plaintiffs’ federal-law claims and then address plaintiffs’
state-law claims against the various State Defendants.
1. Plaintiffs’ Fourth Amendment Claims Against Wenk, Sampson, and
Lamar Concerning the Preparation, Submission, and Execution of the
Removal Order
In reviewing Brent’s first amended complaint, the district court held that the individual
State Defendants are entitled to absolute immunity from plaintiffs’ claims under 42 U.S.C.
§ 1983 concerning “the preparation and submission of the removal petition to the Family Court
. . ., the execution of the resulting order, and the giving of recommendations and testimony.”
R. 163 (Order at 35) (Page ID #4146). “Whether a defendant is entitled to absolute or qualified
immunity from liability under 42 U.S.C. § 1983 is a legal question that this Court reviews de
novo.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).
Social workers are entitled to absolute immunity, “akin to the scope of absolute
prosecutorial immunity,” for conduct “intimately associated with the judicial phase of the
criminal process.” Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716,
724 (6th Cir. 2011) (second quote quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Put
differently, “social workers are absolutely immune only when they are acting in their capacity as
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legal advocates—initiating court actions or testifying under oath—not when they are performing
administrative, investigative, or other functions.” Holloway v. Brush, 220 F.3d 767, 775 (6th
Cir. 2000) (en banc). The doctrine of absolute immunity applies even if social workers make
knowingly false statements in the petition for a removal order and while advocating before the
court. Pittman, 640 F.3d at 725–26.
Plaintiffs raise four objections to the district court’s granting of absolute immunity to
Wenk, Sampson, and Lamar. First, plaintiffs argue that these three defendants are not entitled to
absolute immunity for their respective roles in petitioning for the removal order because the State
Defendants failed to provide Brent with an impartial hearing before filing the petition. Appellant
Br. at 20. Plaintiffs do not explain, however, how the alleged lack of a pre-petition hearing
countermands the defendants’ well-established right to immunity. We have previously rejected
efforts to “circumvent” a social worker’s absolute immunity for filing a petition “by stating a
claim based on ‘[the social worker’s] underlying action in failing to properly investigate’” the
case. Pittman, 640 F.3d at 726 (citation omitted). To the extent that plaintiffs’ argument hinges
on such a claim, we reject it again here.
Next, plaintiffs insist that the State Defendants are not entitled to immunity for filing the
petition because they submitted the petition to a probation officer, who allegedly rubber-stamped
the order with a judge’s signature, rather than to a judge or referee. Appellant Br. at 20. We
understand this argument to be a misplaced effort to hold the State Defendants responsible for
the Family Court’s allegedly faulty procedures for reviewing and granting orders. As we have
already held, plaintiffs cannot hold the social workers liable for decisions over which “the family
court—not the State Defendants—bore the ultimate responsibility.” Brent, 555 F. App’x at 529
(quotation marks omitted). Plaintiffs’ second argument therefore also fails.
Third, plaintiffs contend that Wenk should not be immunized for her role as the
“complaining witness” in support of the removal order. Appellant Br. at 20. Plaintiffs note that
in the Fourth Amendment context, prosecutors who “vouch[] for the truth of the contents of [a]
criminal complaint in front of a judicial officer” are entitled to qualified immunity, rather than
absolute immunity, because they are acting more like a police officer seeking a warrant than a
prosecutor presenting an indictment. See Ireland v. Tunis, 113 F.3d 1435, 1448 (6th Cir. 1997).
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Because Wenk not only presented the petition for removal, but also vouched for the truthfulness
of its contents, plaintiffs argue that the doctrine of qualified immunity governs her conduct.
Appellant Br. at 20. Moreover, because Wenk allegedly submitted false information in the
petition, plaintiffs contend that she must be denied qualified immunity. Id. (citing Yancey v.
Carroll Cty., 876 F.2d 1238, 1243 (6th Cir. 1989)).
True, we once held that a social worker could not receive absolute immunity for “the act
of personally vouching for the truth of the facts that provide the evidentiary support for [the
family court’s] finding of probable cause.” Young v. Vega, 574 F. App’x 684, 689 (6th Cir.
2014). Young, however, is unpublished and non-binding, and our later published precedent
overrides Young’s holding. In Barber v. Miller, 809 F.3d 840 (6th Cir. 2015), for instance, we
held that a social worker is entitled to absolute immunity against allegations that he “included
false and misleading statements of fact in the protective-custody petition.” Id. at 844. As we
explained then, the social worker “offered his factual assessment in his capacity as a legal
advocate initiating a child-custody proceeding in family court.” Id. Because a petition for a
removal order triggers a subsequent hearing in court, see Mich. Ct. R. 3.963(B)(1)(b), 3.965, a
social worker’s actions as a complaining witness are “more analogous to a prosecutor’s decision
to prosecute than a police officer’s testifying by affidavit in support of probable cause.” Bauch
v. Richland Cty. Children Servs., No. 17-3435, 733 F. App’x 292, 2018 WL 2338906, at *4 (6th
Cir. May 23, 2018). The district court therefore did not err in granting absolute immunity to
Wenk for serving as the “complaining witness” in support of the removal order.
Finally, plaintiffs argue that Wenk is not entitled to absolute immunity for her role in
executing the removal order on February 18, 2017. Appellant Br. at 21–22. On this point we
agree. Social workers are entitled only to qualified immunity when removing children from a
home because, in such circumstances, the social workers are “acting in a police capacity rather
than as legal advocates.” Kovacic v. Cuyahoga Cty. Dep’t of Children & Family Servs.,
724 F.3d 687, 694 (6th Cir. 2013). Thus, if Wenk violated plaintiffs’ clearly established
constitutional rights when executing the removal order, she would not be entitled to qualified
immunity from plaintiffs’ claims. See id. at 695.
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Plaintiffs first argue that Wenk violated clearly established law by executing a removal
order that she knew to contain falsehoods, in contravention of the well-established Fourth
Amendment principle that an officer “cannot rely on a judicial determination of probable cause”
to justify executing a warrant “if that officer knowingly makes false statements and omissions to
the judge such that but for these falsities the judge would not have issued the warrant.” Vakilian
v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003) (quoting Yancey, 876 F.2d at 1243). Though we
entirely agree—and now directly hold—that a social worker, like a police officer, cannot execute
a removal order that would not have been issued but for known falsities that the social worker
provided to the court to secure the order, this principle was not clearly established at the time
Wenk executed the order in this case. Indeed, we held as recently as 2015 that “general
assertions that ‘the Fourth Amendment was violated as to [a child] when he was seized pursuant
to [an] order’ that he claims ‘was based on false statements and otherwise lacked probable cause’
invoke no clearly established right.” Barber, 809 F.3d at 848. As Barber concerned conduct
that occurred after the allegedly unlawful actions in this case, see id. at 842, we must grant Wenk
qualified immunity here.
Plaintiffs next argue that Wenk violated clearly established law by executing a facially
invalid warrant. However, plaintiffs did not include allegations of facial invalidity in the then-
operative first amended complaint, and therefore the district court properly declined to consider
the allegation when it was raised for the first time in a motion for reconsideration. See R. 199
(Order at 16) (Page ID #4774). In any event, as we explain further below, the warrant did not
contain such “glaring deficienc[ies]” such that no reasonable social worker could have
reasonably executed it. Groh v. Ramirez, 540 U.S. 551, 564 (2004). Wenk is therefore entitled
to qualified immunity under this theory of liability, as well.
2. Robert’s Fourth Amendment Claims Against Wenk, Sampson, and
Decormier-McFarland Concerning the January 20, 2010 and January 21,
2010 Home Visits
In his initial complaint, Brent alleged that Wenk, Sampson, and Decormier-McFarland
violated his Fourth Amendment rights when they interrogated his children and took photographs
of his home without his consent. See Brent, 555 F. App’x at 524. The district court initially
denied the social workers qualified immunity as to these allegations, but we reversed on appeal.
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Id. at 524–27. We held that the social workers had not violated clearly established law “by
exceeding the limited consent to search that [Brent] had given them,” and we thereby held that
the social workers were entitled to qualified immunity. Id. When the district court subsequently
allowed Robert to join the case as plaintiff, it barred Robert from bringing Fourth Amendment
claims against Wenk, Sampson, and Decormier-McFarland concerning their alleged “warrantless
seizure[s]” and “custodial interrogations” of Robert on January 20 and 21, 2010. R. 221 (Order
at 32–33) (Page ID #5159–60). According to the district court, “no controlling precedent [holds]
. . . that a social worker’s questioning of Robert Brent without parental consent violated his
clearly established rights.” Id. at 33 (Page ID #5160). Accordingly, the district court held that
allowing Robert to assert his Fourth Amendment claims in the second amended complaint would
be “futil[e]” because “there would still be qualified immunity on these issues.” Id. As noted
above, we review de novo a district court’s conclusions on grounds of futility that proposed
amendments to a complaint could not survive a motion to dismiss. Associated Truck Lines, 801
F.2d at 248. We now AFFIRM.
Robert’s allegations against the individual State Defendants are as follows: On January
20, 2010, Brent gave Wenk limited consent to talk to Robert in the Brents’ living room to make
sure he was all right after having been outside in the middle of winter wearing only shorts.
R. 222 (Second Am. Compl. at 6) (Page ID #5175). Once Wenk started asking Robert questions
that “went beyond the consent given,” Wenk demanded that she be allowed to talk to Robert
alone in his bedroom and told the Brents that they could not object “because the law authorized
her actions.” Id. After “concluding her interrogation[],” Wenk “ordered” Robert to show her the
rest of the house, including areas where he was not allowed to go, such as the basement and his
brother’s room. Id. at 7 (Page ID #5176). The next day, Wenk, Sampson, and Decormier-
McFarland returned to the home to ask Robert “a couple of questions.” Id. at 8. Sampson
“demanded” that Robert escort the three social workers upstairs. Id. at 26 (Page ID #5196).
Plaintiffs make no further allegations about defendants’ interactions with Robert on January 21,
2010.
These allegations, taken as true, do not amount to a violation of clearly established Fourth
Amendment law. Undeniably, clearly established law prohibits the unreasonable seizure of a
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minor by state social workers. See Kovacic, 724 F.3d at 699. It is not at all clear, however, that
Robert was seized during the January 20 or the January 21 home visits. “To determine whether a
person has been seized within the meaning of the Fourth Amendment, the inquiry is whether, ‘in
view of all the circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.’” Myers v. Potter, 422 F.3d 347, 356 (6th Cir. 2005) (quoting INS
v. Delgado, 466 U.S. 210, 215 (1984)). In Myers, the principal case upon which plaintiffs rely,
we held that a fourteen-year-old boy was seized under the Fourth Amendment when he was
removed from his mother’s home, taken to a district attorney’s office an hour away after his
mother was falsely told he would be taken only a few miles away, and interrogated for over four
hours (even though the officers had told his mother that he would be back home within the hour).
Id. at 350, 355–57. In such circumstances, we concluded that the boy could not have reasonably
believed that he could leave, particularly since he was questioned in an office with “the doors
were locked behind him” and his repeated requests to be taken home were “expressly declined.”
Id. at 355.
The alleged facts of this case are palpably different. For one thing, the social workers
never removed Robert from his home, rendering it far less likely that Robert felt unable to
“leave” their presence. Cf. United States v. Panak, 552 F.3d 462, 466 (6th Cir. 2009) (holding,
in the Miranda context, that “in-home encounter[s] between the police and a citizen generally
will be non-custodial”). In addition, plaintiffs never allege that Robert declined to speak with the
social workers or asked not to be interviewed. Even assuming Wenk told the parents they could
not object to the questioning, as plaintiffs allege, there is no indication that Wenk told Robert he
was required to speak with her. See id. at 467 (holding defendant was not in custody when she
was never told “that she could not ask the investigators to leave or that she was required to
answer their questions”). Indeed, plaintiffs’ sole effort to show that the “encounters [were]
involuntary” is to argue that “after attempts to end the interrogation were denied, Robert became
very emotional”—a factual assertion that appears nowhere in plaintiffs’ twice-amended
complaint. See Appellant Br. at 28. Taken all together, we cannot conclude from plaintiffs’
operative complaint that Robert was seized—let alone that he was seized in violation of clearly
established law. We therefore affirm the district court’s refusal to allow Robert to assert § 1983
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claims based on purported Fourth Amendment violations against Wenk, Sampson, or Decormier-
McFarland in plaintiffs’ second amended complaint.
3. Plaintiffs’ State Constitutional Claims Against Wenk and Sampson
In their proposed second amended complaint, plaintiffs also attempted to bring claims
arising from the Michigan Constitution against Wenk and Sampson.4 In particular, plaintiffs
alleged that the social workers violated plaintiffs’ rights under Article I §§ 2, 6, 9, 11, 17, and 23
of the Michigan Constitution. R. 211 (Proposed Second Am. Compl. at 22, 31–32) (Page ID
#5011, 5020–21). The district court properly barred plaintiffs from asserting these claims. See
R. 221 (Order at 27–29) (Page ID #5154–56). Under Michigan law, plaintiffs may not bring
suits for damages against individual government employees for alleged violations of the
Michigan Constitution. Jones v. Powell, 612 N.W.2d 423, 426 (Mich. 2000). Plaintiffs resist his
rule, arguing that they are not alleging claims directly under the Michigan Constitution, but are
instead suing for violations of Michigan’s Child Protection statute, which requires “[a]ll
department employees involved in investigating child abuse or child neglect cases [to] be trained
in the legal duties to protect the state and federal constitutional and statutory rights of children
and families from the initial contact of an investigation through the time services are provided.”
Mich. Comp. Laws § 722.628(17). Michigan courts have never interpreted this provision of the
Child Protection laws, let alone decided that the provision creates a private right of action. As
plaintiffs offer no argument or case law in support of inferring a private right of action, we
decline to do so. See Hertel v. Mortg. Elec. Registration Sys., Inc., No. 1:12-CV-174, 2013 WL
1874718, at *5 (W.D. Mich. May 3, 2013) (“[F]ederal courts are justifiably reluctant to find
implied causes of action in state statutes due to federalism concerns.”). We therefore AFFIRM.
4. Robert’s State-Law Failure-to-Report Claim Against Trice
Robert brought a medical-neglect claim against Trice in plaintiffs’ second amended
complaint. In particular, Robert alleged that he was given expired medication while he was
4The district court believed that plaintiffs were also bringing claims under the Michigan Constitution
against Trice, but we do not see any such claims in either the proposed second amended complaint or the second
amended complaint. In any event, our holding here applies equally to plaintiffs’ potential claims under the
Michigan Constitution against Trice.
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under the care of Methodist. R. 222 (Second Am. Compl. at 41) (Page ID #5211). Robert’s
parents learned about this incident during a family visit on April 14, 2010 and immediately
reported it to Trice, who was present at the time. Id. Trice, however, “ignored her affirmative
duty to report this medical neglect.” Id. Two days later, Robert began coughing up blood and
asked Methodist to see a doctor. Id. at 57 (Page ID #5227). After his requests to see a physician
were repeatedly denied, Robert left Methodist and went to a hospital, where he was diagnosed
with acute bronchitis and acute pharyngitis. Id. A Foster Care Review hearing was subsequently
held on April 26, 2010, during which time “it was determined . . . that the medical neglect of
R. Brent must be reported and investigated.” Id. at 42 (Page ID #5212). Nevertheless, Trice,
who was present at the meeting, “still refused to report” the allegedly ongoing “medical neglect
of R. Brent.” Id. Robert sued Trice for failing to report his medical neglect and sought damages,
“including but not limited to medical expenses and emotional distress.” Id. at 46 (Page ID
#5216).
Trice responded to Robert’s allegations by claiming immunity under the Governmental
Tort Liability Act (“GTLA”), Michigan Compiled Laws § 691.1407. See R. 230 (Mot. for J. on
the Pleadings at 10–12) (Page ID #5318–20). In Michigan, “[g]overnmental employees bear the
burden of raising and proving their entitlement to immunity as an affirmative defense.” Gohl v.
Turbiak, No. 335389, 2018 WL 2067796, at *5 (Mich. Ct. App. May 3, 2018). The GTLA
immunizes officers and employees of governmental agencies from tort liability for injuries
arising out of negligence if:
(a) The officer, employee, member, or volunteer is acting or reasonably believes
he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or
damage.
Mich. Comp. Laws § 691.1407(2). The GTLA does not immunize officials from intentional-tort
claims, id. § 691.1407(3), although common-law immunity precludes suits against government
officials for intentional torts under certain circumstances. Odom, 760 N.W.2d at 228. Thus, by
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asserting immunity under the GTLA, Trice necessarily interpreted plaintiffs’ failure-to-report
claim as sounding in negligence.
Although the district court initially rejected Trice’s GTLA defense, see R. 249 (Order at
7–10) (Page ID #5517–20), it ultimately held that Trice was entitled to governmental immunity
because her failure to report medical neglect was not the proximate cause of Robert’s injuries,
see R. 261 (Order at 6–7) (Page ID #5653–54). In so holding, the district court reasoned that
Robert’s injuries were caused “most immediately by other factors”—i.e., either “the illness itself
or perhaps the expired medication.” Id. at 7 (Page ID #5654). The district court therefore
entered judgment on the pleadings in favor of Trice on Robert’s failure-to-report claim—a
determination that we now review de novo. Fritz v. Charter Twp. of Comstock, 592 F.3d 718,
722 (6th Cir. 2010). In so doing, we treat “all well-pleaded material allegations of the pleadings
of the opposing party” as true, and we will affirm the granting of a Rule 12(c) motion “only if the
moving party is nevertheless clearly entitled to judgment.” Id. (quoting JPMorgan Chase Bank,
N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)).
On appeal, plaintiffs do not challenge the district court’s proximate-cause determination.
Instead plaintiffs argue that Trice is not entitled to immunity because she has not established that
she was acting within the scope of her authority, as required to secure immunity under the
GTLA. See Appellant Br. at 25. Alternatively, plaintiffs argue that Trice’s failure to report may
have been intentional instead of negligent, and that she was not entitled to immunity under the
standard set forth in Odom. We address each argument in turn.
We reject plaintiffs’ first argument. Michigan courts define the “scope of authority” as
“[t]he reasonable power that an agent has been delegated or might foreseeably be delegated in
carrying out the principal’s business.” Backus v. Kauffman, 605 N.W.2d 690, 694 (Mich. Ct.
App. 1999) (quoting Black’s Law Dictionary (7th ed.) at 1348). As a social worker, Trice is
required under Michigan law to report child abuse or child neglect when she “has reasonable
cause to suspect” such abuse or neglect. Mich. Comp. Laws § 722.623. Trice therefore acts
within the scope of her authority when she reports reasonable suspicions of abuse and neglect, as
well as when she declines to report cases where there is “no reasonable cause” to suspect abuse
or neglect. Accordingly, Trice necessarily acted within the scope of her authority when she
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decided—either rightly or wrongly—not to report the alleged medical neglect here. This
conclusion is all the more apparent here given that Trice learned about Methodist’s alleged
misconduct while acting as a social worker (i.e., attending a family visit and participating in a
Foster Care Review hearing). See State Defendants Br. at 31. We therefore affirm the district
court’s grant of immunity.
We also reject plaintiffs’ attempt to assert for the first time that Trice may have
intentionally, rather than negligently, failed to report Methodist’s medical neglect. It is entirely
unclear from plaintiffs’ second amended complaint whether Robert’s failure-to-report claim
alleges an intentional tort or negligence. See R. 222 (Second Am. Compl. at 46) (Page ID
#5216) (“Ms. Trice is liable to Plaintiff R. Brent under MCL 722.633(1) for the damages caused
from her failure to report the medical and educational neglect of Plaintiff R. Brent, including but
not limited to medical expenses and emotional distress caused by her failure.”). In response to
the State Defendants’ motion for judgment on the pleadings, however, plaintiffs stressed that
Trice’s conduct had been “grossly negligen[t]” and made no mention of a potential intentional
tort. See R. 235 (Pls. Response to State Defs.’ Mot. for J. on the Pleadings at 12) (Page ID
#5372). Plaintiffs may not now reinterpret their complaint for the first time on appeal to raise a
claim that they never before asserted. Cf. Plott v. Gen. Motors Corp., Packard Elec. Div., 71
F.3d 1190, 1195 (6th Cir. 1995) (holding that we generally “decline to review a claim that is
presented for the first time on appeal”).
We therefore AFFIRM the district court’s grant of judgment on the pleadings in favor of
Trice with respect to Robert’s failure-to-report claim.
5. Plaintiffs’ State-Law Claims (IIED and Eavesdropping) Against the State
Defendants
The procedural history of plaintiffs’ state-law claims against the State Defendants, as
recounted on pages 9–11, supra, is complicated. In short, the district court initially determined
that the State Defendants were absolutely immune under state law from plaintiffs’ IIED and
eavesdropping claims under Martin v. Children’s Aid Soc., 544 N.W.2d 651 (Mich. 1996),
R. 249 (Order at 3–10) (Page ID #5513–20), then reversed itself following plaintiffs’ motion for
reconsideration, R. 261 (Order at 3–8) (Page ID #5650–55), and then reversed itself again,
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R. 270 (Order at 6) (Page ID #5725). In the meantime, the individual State Defendants had
appealed the district court’s prior holding that defendants were not entitled to absolute immunity.
R. 265 (Notice of Appeal at 2) (Page ID #5676). Thus, we now have before us the State
Defendants’ appeal from the district court’s denial of absolute immunity, as well as plaintiffs’
appeal from the district court’s subsequent granting of such immunity.
We conclude that the district court’s denial of the State Defendants’ absolute-immunity
defense was immediately appealable, such that we have jurisdiction over the appeal docketed in
17-1428. As a result, the district court lacked jurisdiction subsequently to reverse its order
denying immunity after the State Defendants had filed a notice of appeal. Nevertheless, we
agree with the district court’s ultimate conclusion that the State Defendants are entitled to
absolute immunity from plaintiffs’ state law claims under Martin, and we therefore REVERSE
the district court’s decision denying immunity and REMAND with instructions to (re-enter)
judgment in defendants’ favor.
a. Jurisdiction
We have jurisdiction to consider the State Defendants’ interlocutory appeal of the district
court’s denial of absolute immunity under Martin, though not for the reason the State Defendants
suggest. The State Defendants rely on Livermore ex rel. Rohm v. Lubelan, 476 F.3d 397 (6th
Cir. 2007), to support their claim that “[t]he denial of state-law immunity is immediately
appealable.” 17, 1428, D.E. 9 (Defs.’ Response to Mot. to Dismiss for Lack of Jurisdiction at 7).
Livermore, however, concerns the appealability of orders denying immunity under Michigan’s
governmental immunity statute, Michigan Compiled Laws § 691.1407. See 476 F.3d at 407–08.
As the Michigan courts have held, and as the State Defendants have repeatedly stressed in this
case, Martin immunity “does not arise from this kind of statute.” 544 N.W.2d at 655 n.5. Our
decision in Livermore therefore does not control this case.
“[W]e must look to state immunity law to determine if a denial of immunity based on
state law is appealable.” Walton v. City of Southfield, 995 F.2d 1331, 1343 (6th Cir. 1993),
superseded by statute on other grounds as recognized in Livermore, 476 F.3d 397. As we have
long recognized,
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the right to an interlocutory appeal from the denial of a claim of absolute or
qualified immunity under state law can only exist where the state has extended an
underlying substantive right to the defendant official to be free from the burdens
of litigation arising from acts taken in the course of his duties.
Marrical v. Detroit News, Inc., 805 F.2d 169, 172 (6th Cir. 1986), superseded by statute on other
grounds as recognized in Bradley v. City of Ferndale, 148 F. App’x 499, 512 (6th Cir. 2005).
We have thus distinguished between state-immunity laws that provide only immunity from
liability, rather than immunity from suit. Id. at 172–74. Where a state is focused solely on
protecting officials from “the risk of ultimate liability in damages,” we have concluded that the
officials have no “entitlement not to stand trial” and therefore no right to an interlocutory appeal.
Id. at 172, 174. Where, however, a state is not concerned only with liability for money damages,
but also “the general costs of subjecting officials to the risks of trial—distraction of officials
from their governmental duties, inhibition of discretionary action, and deterrence of able people
from public service,” we will conclude that the state intended to immunize its officials from suit
and therefore intended to authorize interlocutory appeals from the denial of such immunity.
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 816
(1982)); see also Marrical, 805 F.2d at 172–74.
When the Michigan Court of Appeals held in Martin that social workers must receive
absolute immunity for their role in “initiating and monitoring child placement proceedings and
placements,” it was focused on far more than just immunity from money damages. In justifying
its decision, the Michigan Court of Appeals explained that “social workers must be allowed to
act without fear of intimidating or harassing lawsuits by dissatisfied or angry parents.” Martin,
544 N.W.2d at 655. The court further explained that “absolute immunity is necessary to assure
that our important child protection system can continue to function effectively” and to “[]serve
the broader public interest in having participants [in contested child protection cases] . . . perform
their respective functions without fear of having to defend their actions in a civil lawsuit.” Id. at
655–56 (second quote quoting Babcock v. Tyler, 884 F.2d 497, 502 (9th Cir. 1989)) (alteration
and omission in original). And the court deemed “persuasive” the Martin defendants argument
that “[t]he threat of a suit . . . could make any social worker back off from making discretionary
decisions that he or she would otherwise believe to be in the child’s best interests.” Id. at 656
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(quotation marks and citation omitted). These rationales mirror the concerns the Supreme Court
highlighted in Forsyth as evidence that qualified immunity under federal law is “immunity from
suit.” See 472 U.S. at 526–27. We therefore conclude, like the Court in Forsyth, that the
entitlement under Martin “is an immunity from suit rather than a mere defense to liability.” Id. at
526. Accordingly, the denial of absolute immunity under Martin is immediately appealable as a
collateral order.
Plaintiffs resist this holding, arguing that the list of “final order[s]” subject to appeal of
right in the Michigan Court Rules includes orders denying governmental immunity, but does not
include orders denying immunity under Martin. See Mich. Ct. R. 7.203(A), 7.202(6)(a)(v). The
trouble for plaintiffs, however, is that the Michigan Court Rules also authorize appeal of right
from “[a] judgment or order of a court or tribunal from which appeal of right to the Court of
Appeals has been established by law or court rule,” Mich. Ct. R. 7.203(A)(2), and we determine
whether appealability “has been established by [state] law” by applying the analysis set forth in
Marrical and Walton. Sometimes, of course, our determination must change in light of
intervening state law. In Walton, for instance, we held that orders denying governmental
immunity are not immediately appealable under Michigan law, a decision we later reversed when
Michigan amended its Court Rules in 2002 to identify expressly orders denying governmental
immunity as “final orders” available for appeal of right. See Livermore, 476 F.3d at 408. But
this does not mean that the process for “determining whether we may hear an appeal based on
state-law immunity” has changed. See Schack v. City of Taylor, 177 F. App’x 469, 473 (6th Cir.
2006) (holding that we have jurisdiction to hear interlocutory appeals of orders denying
governmental immunity given Michigan’s amendments to its Court Rules, but recognizing that,
in general, we still determine whether we can hear interlocutory appeals based on state-law
immunity by asking whether “the state has extended an underlying substantive right to the
defendant official to be free from the burdens of litigation” (quoting Marrical, 805 F.2d at 172)).
Though the Michigan courts have not decided this issue, we conclude based on our precedent
that orders denying Martin immunity are immediately appealable under state law.
Because the district court’s denial of Martin immunity to the State Defendants was
immediately appealable, the district court lost jurisdiction over the plaintiffs’ state-law claims
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 38
against the State Defendants once the State Defendants filed their notice of appeal. See Lewis v.
Alexander, 987 F.2d 392, 394 (6th Cir. 1993). The district court concluded otherwise, reasoning
that this court had already affirmed the district court’s predecessor’s decision to deny the State
Defendants absolute immunity. See R. 264 (Order at 4 n.1) (Page ID #5671). While true that
“the district court retains jurisdiction over an action when an ‘appeal is untimely, is an appeal
from a non-appealable non-final order, or raises only issues that were previously ruled upon in
that case by the appellate court,’” Lewis, 987 F.2d at 394–95 (quoting Rucker v. U.S. Dep’t of
Labor, 798 F.2d 891, 892 (6th Cir. 1986)), the district court erred in holding that this court had
already decided that the State Defendants were not entitled to immunity under Martin. We
previously held that the State Defendants were not entitled to governmental immunity under the
GTLA or Odom. Brent, 555 F. App’x at 535. We never considered, however, whether the State
Defendants were entitled to absolute immunity under Martin. The district court therefore had no
power to revisit the claims that were pending before this court on appeal.5
b. Waiver
Plaintiffs argue that even if we have jurisdiction to hear the State Defendants’ appeal, we
should hold that the State Defendants have waived their immunity defense under Martin by
failing to raise this defense in a timely fashion. We decline plaintiffs’ invitation.
As noted above, absolute immunity under Martin is an affirmative defense under
Michigan law, and it can be waived in federal court if it is not asserted in defendants’ first
responsive pleading. See section II.B.3, supra. Here, the State Defendants did raise state-law
absolute immunity in their first responsive pleading. See R. 200 (Answer at 6) (Page ID #4782);
see also R. 225 (Answer at 5) (Page ID #5276). They did not, however, raise state-law absolute
immunity in their pre-answer motion to dismiss. As we have previously held that defendants
5Plaintiffs insist that we lack jurisdiction because the State Defendants’ appeal is untimely, in that the
district court had purportedly decided that the State Defendants were not entitled to Martin immunity on November
15, 2012, and the State Defendants never appealed that order. See 17-1428, Appellee Br. at 15. Plaintiffs are
wrong. By November 2012 order, the State Defendants had not yet raised immunity under Martin—only the
Children’s Center had. Moreover, although the district court held that the Children’s Center was not entitled to
state-law immunity in its November 15, 2012 order, it subsequently revisited its decision and held that the
Children’s Center was entitled to Martin immunity, see R. 199 (Order at 10–13) (Page ID #4768–71). We therefore
reject plaintiffs’ arguments on this point.
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may assert immunity defenses for the first time in post-answer dispositive motions, even if they
previously failed to raise those same defenses in pre-answer dispositive motions, see English v.
Dyke, 23 F.3d 1086, 1091 (6th Cir. 1994), plaintiffs must believe that English does not decide
this case. We disagree.
In English, we held that Federal Rule of Civil Procedure 12(g) does not require
defendants to assert federal qualified immunity in their pre-answer motions to dismiss because
qualified-immunity defenses essentially state that the plaintiff has failed to state a claim, and a
defense based on failure to state a claim need not be brought in a defendant’s first motion, but
instead “may be brought in a subsequent pleading, motion for judgment on the pleadings, or at
trial on the merits.” Id. Plaintiffs here argue that the Michigan court rules operate differently
and require defendants to argue immunity defenses in their first dispositive motion or else waive
the defense. See 17-1428, Appellee Br. at 27. We read Michigan’s rules differently. See Mich.
Ct. R. § 2.116(C)(7), (D)(2). In any event, federal law governs questions of federal procedure,
and our holding in English therefore governs this case. See Roskam, 288 F.3d at 901.
Plaintiffs seemingly also argue that the State Defendants waived their defense under
Martin by filing their answer to plaintiffs’ first amended complaint tardily and by filing repeated
motions for extensions. See 17-1428, Appellee Br. at 17–18. We review for abuse of discretion
a district court’s determination that an untimely assertion of an affirmative defense was
permissible because it “did not result in surprise or unfair prejudice” to plaintiffs. Smith v.
Sushka, 117 F.3d 965, 969 (6th Cir. 1997). We see no “clear error of judgment” here and
therefore affirm. Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989).
c. Merits
Plaintiffs recognize that Martin immunity is broad but nonetheless raise several
arguments for its inapplicability here. First, plaintiffs insist that Martin immunity does not apply
to activities taken before a petition for child removal is filed, as those activities take place
without judicial oversight. 17-1428, Appellee Br. at 20–21. As Michigan courts have held
otherwise, we reject this argument. See McCarthy, 2009 WL 3235639, at *7 (holding that
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Martin immunity “appl[ies] with equal force to the pre-adjudication investigatory stages of a
child protective proceeding,” as “this might well be the most volatile stage of the proceeding”).
Second, plaintiffs contend that Decormier-McFarland is not entitled to immunity under
Martin because she was an intern with Wayne County DHS, rather than a paid employee.
Plaintiffs offer no case law in support of their position, and we decline to limit Michigan law
without some sort of evidence that the Michigan courts intended such a limitation to apply. Cf.
Rehm v. Interstate Motor Freight Sys., 133 F.2d 154, 157 (6th Cir. 1943) (“[When dealing with
issues of state law,] the duty of United States courts . . . is to ascertain, construe and apply static
state law: not to limit, modify or repeal state doctrine.”).
Third, plaintiffs argue that the GTLA forecloses Martin immunity for governmental
employees. As Michigan courts have granted immunity under Martin to governmental
employees, we see no basis for adopting plaintiffs’ interpretation. See McCarthy, 2009 WL
3235639, *4–6 (granting both governmental immunity and Martin immunity to a Children’s
Protective Services employee).
Finally, plaintiffs argue that Trice is not entitled to Martin immunity for drafting a
document naming Michael and Noel Chinavare temporary guardians of Brent’s male children
without first obtaining a court order authorizing the guardianship. See R. 222 (Second Am.
Compl. at 36) (Page ID #5206). As there was no “court oversight” over this decision, plaintiffs
reason that Martin immunity cannot apply. See 17-1428, Appellee Br. at 24–25. This argument
misunderstands the breadth and the purpose of Martin immunity. If the Brents were displeased
with Trice’s allegedly wrongful behavior, they could have “avail[ed] themselves of the
safeguards built into the adjudication process.” McCarthy, 2009 WL 3235639, at *6. Martin
immunity does not stop applying simply because the court did not pre-approve or “oversee every
discrete act of the social worker.” Beauford v. Lewis, 711 N.W.2d 783, 785 (Mich. Ct. App.
2005).
Thus, we conclude that the district court erred in denying the State Defendants absolute
immunity under Martin from plaintiffs’ IIED and eavesdropping claims (though we recognize, of
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course, that the district court subsequently reached the same resolution as we now do). We
therefore grant the State Defendants absolute immunity as to these claims.
E. City of Detroit, Emina Biogradlija, and Michael Bridson (“The City Defendants”)
In their second amended complaint, plaintiffs alleged that the City of Detroit, Detroit
Police Officers Emina Biogradlija and Michael Bridson, and two other unknown Officers
violated plaintiffs’ Fourth and Fourteenth Amendment rights when they entered plaintiffs’ home
without a valid warrant and removed plaintiffs’ children, in violation of 42 U.S.C. § 1983. R.
222 (Second Am. Compl. at 55) (Page ID #5225). Plaintiffs also claimed that the City
Defendants intentionally caused plaintiffs emotional distress by forcibly entering plaintiffs’
home, using excessive force to remove plaintiffs’ children, and physically assaulting Brent. Id.Finally, plaintiffs insisted that the Detroit Police Department was grossly negligent in its training
and supervision of its police officers. Id. at 55–56 (Page ID #5225–26). The City Defendants
moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), and the
district court granted judgment in the City Defendants’ favor as to all claims. R. 250 (Order)
(Page ID #5522–33). We now AFFIRM.6
1. Jurisdiction and Standard of Review
As a preliminary matter, the City Defendants argue that this court lacks jurisdiction over
plaintiffs’ appeal because the district court entered final judgment in this case on May 1, 2017,
R. 271 (Judgment) (Page ID #5727–28), and plaintiffs did not file a notice of appeal until July 7,
2017, R. 281 (Notice of Appeal) (Page ID #5844). Although plaintiffs typically must file a
notice of appeal in a civil case within 30 days after entry of the final judgment, Federal Rule of
Appellate Procedure 4(a)(4) provides that if a motion is filed within twenty-eight days of entry of
judgment under Rule 59 or Rule 60 by “a party,” then “the time to file an appeal runs for all
parties from the entry of the order disposing of the last such remaining motion.” FED. R. APP. P.
4(a)(1)(A), (a)(4) (emphasis added). Here, plaintiffs moved to vacate the entry of judgment as to
6Plaintiffs also alleged that the City Defendants conspired to violate Plaintiffs’ Fourth and Fourteenth
Amendment rights with the Wayne County Department of Health Services and social worker Mia Wenk, in violation
of 42 U.S.C. § 1985. R. 222 (Second Am. Compl. at 55) (Page ID #5225). The district court entered judgment on
the pleadings in favor of defendants on this claim, and plaintiffs have not appealed this decision.
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the State Defendants under Federal Rules of Civil Procedure 59 and 60 and Local Rule 7.1 on
May 4, 2017. R. 272 (Pls.’ Mot. to Vacate Void Orders) (Page ID #5730). This motion was
denied on June 9, 2017. R. 280 (Order at 4) (Page ID #5842). Plaintiffs’ July 7, 2017 notice of
appeal is therefore timely as to all parties, and this court has jurisdiction to hear plaintiffs’ appeal
vis-à-vis the City Defendants.
As noted above, we review de novo a judgment on the pleadings under Rule 12(c). Fritz,
592 F.3d at 722. Where, as here, defendants have attached exhibits to their motion for judgment
on the pleadings, we may consider those exhibits “so long as they are referred to in the
Complaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic
Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
2. Section 1983
The district court properly entered judgment on plaintiffs’ claims under 42 U.S.C.
§ 1983. Government officials cannot be held liable under § 1983 unless they violate a plaintiff’s
clearly established constitutional rights. Kovacic, 724 F.3d at 695. In other words, an officer is
immune from suit for constitutional violations unless “it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.” Groh, 540 U.S. at 563 (quoting
Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Under clearly established Fourth-Amendment law, “government officials must obtain a
warrant to conduct a search or seizure on private property, absent exigent circumstances or
another recognized exception.” Kovacic, 724 F.3d at 698.7 Here, the City Defendants entered
plaintiffs’ home and removed Brent’s children pursuant to an “Order to Take Children into
Protective Custody” signed by a state family-court judge. R. 231-2 (Order) (Page ID #2427–28).
Plaintiffs correctly assume that this removal order was equivalent to a judicially authorized
warrant. See R. 222 (Second Am. Compl. at 54) (Page ID #5224); see also Young, 574 F. App’x
7Though plaintiffs’ complaint alleges violations of the Fourth and Fourteenth Amendments, the district
court assumed that plaintiffs intended to raise claims only under the Fourth Amendment, as incorporated against the
states through the Fourteenth Amendment. R. 250 (Order at 3–4) (Page ID #5524–25). As plaintiffs have not
challenged this assumption on appeal, we will assume that the district court correctly interpreted plaintiffs’
complaint.
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at 692 (describing an ex parte order authorizing the Tennessee Department of Children’s
Services to take emergency temporary custody of children as “a judicially secured arrest
warrant”); J.B. v. Washington Cty., 127 F.3d 919, 930 (10th Cir. 1997) (holding that a judge’s
“order to take [a child] to a shelter home was tantamount to an arrest warrant issued by a
magistrate”). Plaintiffs argue, however, that the City Defendants were not entitled to rely on the
removal order because it was “so facially deficient . . . that the executing officers [could] not
reasonably presume it to be valid.” Groh, 540 U.S. at 565 (quoting United States v. Leon,
468 U.S. 897, 923 (1984)); see also Appellant Br. at 34–35. In particular, plaintiffs allege that
the order (1) did not have a court seal; (2) did not have a judge’s name on the first page; (3) was
signed with a “rubber stamp”; (4) “had the wrong description for all of Plaintiff’s children;
(5) included “contradictory statement[s] regarding ‘reasonable efforts’”; (6) “did not specify who
was authorized to execute it”; (7) had “no date of entry of order” and “no hearing date set,” and
(8) “gave blanket permission to enter premises anywhere in the United States.” R. 222 (Second
Am. Compl. at 54) (Page ID #5224).
Some of plaintiffs’ allegations fail on the facts. For instance, plaintiffs do not specify
what is “wrong” about the order’s description of the children, and we see no obvious error. See
R. 231-2 (Order to Take Children into Protective Custody at 1) (Page ID #5351) (identifying
each child by his or her name and birthday).8 Other allegations are legally insignificant. The
order is not deficient, for example, simply because it authorizes entry into plaintiffs’ home or
wherever the children are “reasonably believed to be found.” Id. at 2 (Page ID #5352). Though
the final catch-all phrase was overbroad, “an ‘infirmity due to overbreadth does not doom the
entire warrant.’” United States v. Castro, 881 F.3d 961, 965 (6th Cir. 2018) (quoting United
States v. Greene, 250 F.3d 471, 477 (6th Cir. 2001)). Where a warrant contains “sufficiently
particularized” portions that are “distinguishable from the invalid portions” and that “make up
the greater part of the warrant,” the proper portions of the warrant “remain[] valid.” Id. at 966
(quoting United States v. Sells, 463 F.3d 1148, 1151 (10th Cir. 2006)). Nor are we aware of any
constitutional requirement that warrants (or child removal orders) must include court seals, the
8We may review the removal order, which the City Defendants attached to their Rule 12(c) motion,
because the contents of the order are central to plaintiffs’ claims. See Bassett, 528 F.3d at 430.
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 44
name of the issuing judge on the first page, a preliminary hearing date,9 or a handwritten as
opposed to a stamped signature.
Moreover, even if the removal order contained some irregularities, plaintiffs have failed
to establish that these flaws rendered the officers’ reliance on the warrant objectively
unreasonable. For instance, the field where the judge or referee was supposed to fill in the
“[d]ate of entry of order” was left blank, but the order was stamped with a “Filed” date of
February 18, 2010, and the order included an expiration date of March 18, 2010. See R. 231-2
(Removal Order at 1–2) (Page ID #2427–28). In addition, though the checkmark box indicating
that reasonable efforts were not made to avoid removal was ticked, it was plain from the face of
the warrant that this tick mark was a typographical error, as the checkmark box indicating that
reasonable efforts were made to avoid removal was also ticked, and the order included a short
narrative detailing those efforts. Id. Finally, though the order failed to identify the executing
officers, this is “precisely the kind of technical error[s] in an otherwise valid warrant which fails
to raise any substantive fourth amendment concerns.” United States v. Palmer, 770 F.2d 167,
1985 WL 13528, at *5 (6th Cir. 1985); see also People v. Godboldo, No. 323261, 2016 WL
299707, at *5 (Mich. Ct. App. Jan. 21, 2016), appeal denied, 878 N.W.2d 856 (Mich. 2016),
reconsideration denied, 882 N.W.2d 155 (Mich. 2016) (holding removal order did not violate
Fourth Amendment or state law when it “did not specify who was authorized to take the child
into protective custody” because “the court rule permitted the officers who entered the home to
take the child into protective custody”). At bottom, plaintiffs have not identified the sort of
“glaring deficiency that any reasonable officer would have known was constitutionally fatal.”
Groh, 540 U.S. at 564.
We also reject plaintiffs’ argument that the manner in which the City Defendants entered
plaintiffs’ home violated the Fourth Amendment. See Appellant Br. at 34. Plaintiffs complain
that Officer Bridson “pushed his way past” Brent to effectuate the child removal order and
refused to produce the order until “five minutes” after entering the home. R. 222 (Second Am.
Compl. at 53) (Page ID #5223). The Fourth Amendment bars the use of excessive force in
9Under Michigan law, a preliminary hearing must be held within 24 hours after a child has been taken into
protective custody. Mich. Ct. R. § 3.965(A)(1).
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effectuating a warrant, see, e.g., Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010); Miller v.
Sanilac Cty., 606 F.3d 240, 251 (6th Cir. 2010), but “[n]ot every push or shove, even if it may
later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment,”
Graham v. Connor, 490 U.S. 386, 396 (1989) (quoting Johnson v. Glick, 481 F.2d 1028, 1033
(2d Cir. 1973)). Here, Brent concedes that he refused to allow the officers to enter his home
after being told that they had a warrant to remove Brent’s children. R. 222 (Second Am. Compl.
at 53) (Page ID #5223). In such circumstances, Officer Bridson’s pushing of Brent—which was
not alleged to be unduly violent or forceful—was not unreasonable. See Stricker v. Twp. of
Cambridge, 710 F.3d 350, 364 (6th Cir. 2013) (holding officers did not violate Fourth
Amendment where members of household “repeatedly disobeyed lawful officer commands” and
officers’ use of force was not “gratuitously violent”). And, in any event, such limited contact did
not violate clearly established law. See Marcilis v. Twp. of Redford, 693 F.3d 589, 598 (6th Cir.
2012) (officers pushing homeowner “‘violently’ to the floor despite the fact that he was visibly
bandaged” did not violate clearly established Fourth Amendment law under the circumstances
presented). The alleged five-minute delay between entry and allowing Brent to view the warrant
is also constitutionally acceptable. See Baranski v. Fifteen Unknown Agents of Bureau of
Alcohol, Tobacco & Firearms, 452 F.3d 433, 442–47 (6th Cir. 2006) (concluding that the
Warrant Clause of the Fourth Amendment does not “require[] officers to produce a copy of the
warrant (and any affidavit) at the outset of the search”). Plaintiffs have therefore failed to raise
any viable § 1983 claims against the Detroit Police Officers.10
3. Monell Claim
Plaintiffs’ failure-to-train and failure-to-supervise claims against the City of Detroit also
fail. “A plaintiff may seek damages against a municipality where the municipality has a custom,
policy, or practice that resulted in deprivation of the plaintiff’s constitutional rights.” Gonzalez
v. Kovacs, 687 F. App’x 466, 470 (6th Cir. 2017) (citing Monell v. Dep’t of Soc. Servs., 436 U.S.
10To the extent that plaintiffs mean to argue that the officers were unnecessarily rough in “ripp[ing] [the
youngest child] from his mother and push[ing] him out the door,” R. 222 (Second Am. Compl. at 53) (Page ID
#5223), plaintiffs lack standing to assert those claims. See Jezowski v. Thompson, No. 1:16-CV-13242, 2018 WL
3060250, at *5 (E.D. Mich. May 18, 2018), report and recommendation adopted, No. 16-CV-13242, 2018 WL
3048500 (E.D. Mich. June 20, 2018).
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 46
658, 690–91 (1978)). Here, as in Gonzalez, plaintiffs’ complaint failed to allege “a single fact
that suggests, plausibly or otherwise,” that the Detroit Police Officers’ purported Fourth
Amendment violations were “the result of a custom, policy, or practice of [the City of Detroit].
The district court therefore properly dismissed this count of [plaintiffs’] complaint.” Id.In their response to the City Defendants’ Rule 12(c) motion and in their opening brief
before this court—but not in their complaint—plaintiffs asserted that “the Detroit Police
Department was under a consent order to cure the very Fourth Amendment violations that
occurred here” and was therefore “well aware that constitutional violations were occurring on a
regular bas[i]s” but nevertheless “took no steps whatsoever to attempt to cure these issues.”
Plaintiffs failed to reference or discuss this consent order in their complaint and never attached
the consent order to its briefings before the district court, such that the district court would have
been required to expressly exclude the additional material or convert the City Defendants’
motion to a motion for summary judgment. See Max Arnold & Sons, LLC v. W.L. Hailey & Co.,
452 F.3d 494, 503 (6th Cir. 2006). As a result, the district court was not required to consider
these vague, outside-the-pleadings allegations in assessing the City Defendants’ motion under
Rule 12(c), and neither are we. Cf. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th
Cir. 1999) (“When considering a motion for judgment on the pleadings (or a motion to dismiss
under Fed. R. Civ. P. 12(b)(6)), the court generally must ignore materials outside the pleadings
. . .”).
Finally, plaintiffs insist that the City ought to be held liable for failing to enforce its
alleged policy barring Detroit Police Officers from serving civil orders. See R. 222 (Second Am.
Compl. at 54) (Page ID #5224). We fail to see how serving civil orders in violation of this
purported internal policy amounts to a constitutional violation, and thus the City’s failure to
enforce this policy adequately (assuming it exists) does not create liability under Monell. See
Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (“There can be no liability under Monell
without an underlying constitutional violation.”).
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4. Intentional Infliction of Emotional Distress
The district court properly held that statutory immunity precluded plaintiffs’ IIED claim
against the City Defendants. Michigan law immunizes government officials from liability for
intentional torts if
(a) [t]he 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, 760 N.W.2d at 228. The district court determined that the individual defendants had
adequately pleaded the elements for statutory immunity in their answer to plaintiffs’ complaint,
and plaintiffs had failed to plead facts suggesting that the defendants’ conduct was unreasonable,
not taken in good faith, or undertaken with malice. R. 250 (Order at 9–10) (Page ID #5530–31).
As a result, the district court entered judgment in defendants’ favor on plaintiffs’ IIED claim. Id.
Plaintiffs then moved for reconsideration and attached to their motion an internal Detroit Police
Department policy purportedly showing that Detroit police officers should not execute civil
orders. See R. 253 (Pls. Mot. for Reconsideration at 8–9, Ex. 1) (Page ID #5550–51, 5555–56).
In their motion, plaintiffs argued that the individual officers could not claim that they acted
within the scope of their authority, acted in good faith, or performed “discretionary” acts when
they executed the civil order in violation of the police department’s internal policy. Id. at 8–9
(Page ID #5550–51). The district court denied plaintiffs’ motion for reconsideration, reasoning
that “[n]othing about [the plaintiffs’ exhibit] suggests the officers acted unreasonably under the
circumstances when they executed the order to remove Brent’s children from the home.” R. 261
(Order at 8) (Page ID #5655). We agree.
We note at the outset that the district court was free to consider the attachment plaintiffs
enclosed with their motion for reconsideration, as plaintiffs referred to the Detroit Police
Department’s purported policy regarding civil orders in their complaint, and that document is
“central to the claims contained therein.” See Bassett, 528 F.3d at 430. In reviewing that
document, we agree with the district court that the document lends no support to plaintiffs’
repeated assertion that “the Detroit Police has a policy strictly prohibiting the Detroit Police from
executing civil orders.” Appellant Br. at 38. Rather, the document states only that “[w]arrants
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and writs issued by competent judicial authority emanating from civil cases are generally the
responsibility of the county sheriff, court appointed bailiffs, or court officers of the 36th District
Court,” and “[g]enerally, officers will not be dispatched to requests for assistance by bailiffs,
court officers, or city officials, unless a breach of the peace is imminent.” R. 253 (Pls. Mot. for
Reconsideration, Exhibit 1) (Page ID #5555). The document therefore does not show that the
officers acted in bad faith, with a lack of authority, or with a lack of discretion.
Moreover, plaintiffs’ complaint, read against the backdrop of Michigan law, compels the
conclusion that the officers are entitled to statutory immunity. Defendants plainly acted within
the scope of their authority when they executed the removal order, as Michigan Court Rule 3.963
specifically contemplates that “a child protective services worker, an officer, or [an]other person
deemed suitable by the court” may take children into protective custody pursuant to a removal
order. See Mich. Ct. R. 3.963(B)(1) (emphasis added); see also Godboldo, 2016 WL 299707, at
*5 (holding that Michigan law authorized police officers to execute removal order and take
children into protective custody). And the district court correctly determined that plaintiffs had
not averred facts allowing the inference that defendants had acted with malice. See Stoll v. Luce
Mackinac Alger Schoolcraft Dist. Health Dep’t Bd. of Health, No. 316287, 2014 WL 5364085,
at *3 (Mich. Ct. App. Oct. 21, 2014) (holding defendant entitled to governmental immunity
where the plaintiff’s complaint had “concluded that [the defendant] acted with malice, but [the
plaintiff] offered no facts to support his conclusions”). Finally, all conduct attributed to the
officers in this case was discretionary as a matter of law. See Norris v. Lincoln Park Police
Officers, 808 N.W.2d 578, 582 (Mich. Ct. App. 2011) (“A police officer’s decisions regarding
how to respond to a citizen, how to safely defuse a situation, and how to effectuate the lawful
arrest of a citizen who resists are . . . clearly discretionary.”). The district court therefore
properly entered judgment in the City Defendants’ favor on plaintiffs’ IIED claims.11
11The district court entered judgment on behalf of all City Defendants on plaintiffs’ IIED claim, even
though the district court’s analysis focused exclusively on whether the individual defendants were entitled to
governmental immunity. See R. 250 (Order at 8–10) (Page ID #5529–31). As plaintiffs have not argued that the
district court erred in entering judgment in favor of the City of Detroit as to plaintiffs’ IIED claim, we need not
consider the issue. Nonetheless, for the sake of completeness, we note that under Michigan law, “the City of Detroit
could only be held liable for the intentional misconduct of an employee acting within the scope of his or her
employment, and that absent such a finding of liability on the part of any individual defendant police officer, a
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F. Gross Negligence Claims Against City and State Defendants
In their final argument regarding the City and State Defendants, plaintiffs contend that
the district court erred in sua sponte striking plaintiffs’ claim for “gross negligence” from the
second amended complaint. In dismissing these claims, the district court reasoned that
“Michigan law does not allow an independent cause of action, defined as ‘gross negligence,’ to
lie where allegations of an intentional tort have been made.” R. 221 (Order at 26–27) (Page ID
#5153–54). Plaintiffs now argue that the district court erred because (1) the defendants were
required to raise this defense affirmatively, and (2) the Federal Rules of Civil Procedure allow
plaintiffs to raise alternative theories of liability. See Appellant Br. at 36–37. We review de
novo the district court’s dismissal of plaintiffs’ gross-negligence claim. See Meros v. Kilbane,
107 F.3d 12, 1997 WL 48984, at *2 (6th Cir. 1997).
1. City Defendants
A district court generally may not dismiss a complaint sua sponte without first giving
notice to the plaintiff. Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 558 (6th Cir.
2012). Here, however, plaintiffs have not complained about insufficient notice, and any
potential prematurity in the district court’s dismissal of plaintiffs’ gross-negligence claims
against the City Defendants was harmless because “no amendment would have allowed
[plaintiffs] to obtain relief from the defendants.” Tidik v. Kaufman, 156 F.3d 1232, 1998 WL
466571, at *1 (6th Cir. 1998).
Michigan’s governmental immunity statute protects government officers from tort
liability unless their “conduct . . . amount[s] to gross negligence that is the proximate cause of
the injury or damage.” Mich. Comp. Laws § 691.1407(2)(c). Thus, “establishing that a
governmental official’s conduct amounted to ‘gross negligence’ is a prerequisite to avoiding that
official’s statutory governmental immunity.” Bletz v. Gribble, 641 F.3d 743, 756 (6th Cir.
2011). Michigan’s immunity statute does not, however, provide an independent cause of action
for “gross negligence,” and plaintiffs may not bypass the immunity statute by “transforming
verdict must be entered on behalf of the City of Detroit and against Plaintiffs in this case.” Holloway v. McIntyre,
838 F.2d 471, 1988 WL 7961, at *2 (6th Cir. 1988).
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intentional excessive force or battery claims into negligence claims.” Jackson v. Lubelan, 657 F.
App’x 497, 502 (6th Cir. 2016). As plaintiffs here are seemingly attempting to reframe Officer
Bridson’s alleged “assault” of Brent as a claim for gross negligence, see Appellant Br. at 38, the
district court correctly dismissed plaintiffs’ gross-negligence claim against the City Defendants.
Asserting that plaintiffs have failed to state a claim under Michigan law is not an affirmative
defense, and thus the district court did not err in dismissing the claim sua sponte. See Mich.
Comp. Laws § 2.111(F)(3) (defining affirmative defenses).
Plaintiffs, however, insist that their gross-negligence claim is premised not only on the
officers’ alleged “forced entry and assault,” but also on the officers’ failure to abide by the
Detroit Police Department’s alleged policy against executing civil orders. Appellant Br. at 38.
According to plaintiffs, “[w]hether the officers intentionally ignored this mandate or w[ere]
neglectful in their duties is at this point a material issue of fact to be determined by the jury.” Id.Plaintiffs are correct to suggest that they may bring common-law negligence claims based on
allegations that could also undergird intentional-tort claims, in that they may allege that “even if
intentional conduct did not cause [their] injuries, ‘conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results’ did.” Jackson, 657 F. App’x at 503
(citation omitted). But a plaintiff seeking to raise a common-law negligence claim must show
that the defendant owed him a duty of care, and, here, plaintiffs have identified no statute,
contractual relationship, or common-law principle that imposes a duty running from Detroit
police officers to private citizens requiring the officers to abide by internal departmental polices
regarding the execution of child removal orders. See Cummins v. Robinson Twp., 770 N.W.2d
421, 434 (Mich. Ct. App. 2009). Thus, even assuming the Detroit Police Department has a
policy against executing such orders, the district court properly struck plaintiffs’ gross-
negligence claim against the City Defendants from the second amended complaint.
2. State Defendants
The district court’s striking of plaintiffs’ gross-negligence claims against the State
Defendants was erroneous. As noted above, plaintiffs are barred from bringing gross-negligence
claims only if those claims are “fully premised” on alleged intentional torts. VanVorous v.
Burmeister, 687 N.W.2d 132, 143 (Mich. Ct. App. 2004), overruled on other grounds by Odom,
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 51
760 N.W. 2d 217. Here, however, plaintiffs allege that various State Defendants were grossly
negligent in failing to follow certain procedures and statutory obligations. See, e.g., R. 211
(Proposed Second Am. Compl. at 19) (Page ID #5008) (alleging that Wenk amended the removal
petition to assert that one of Brent’s children had “high lead sometime in the past” without
conducting an investigation, as allegedly required “by written policy”). We have previously
entertained gross-negligence claims premised on similar allegations that social workers failed to
follow the procedures set forth in the Michigan Child Protection Law. See Jasinski v. Tyler,
729 F.3d 531, 536–37, 544–45 (6th Cir. 2013). The district court therefore erred in striking
plaintiffs’ gross-negligence claims on the ground that they were not cognizable under Michigan
law. While it is possible that the claims should be dismissed for other reasons, we leave it to the
district court to make such determinations in the first instance. See Stanek, 323 F.3d at 480. We
therefore REVERSE the district court’s striking of plaintiffs’ gross-negligence claims against
the State Defendants and REMAND for further proceedings consistent with this opinion.
G. Remand to a Different District Court Judge
Plaintiffs have asked this court to reassign this case to a different district court judge on
remand. “This Court possesses the power, under appropriate circumstances, to order the
reassignment of a case on remand pursuant to 28 U.S.C. § 2106.” Lavin v. Husted, 764 F.3d 646,
651–52 (6th Cir. 2014) (quoting Rorrer v. City of Stow, 743 F.3d 1025, 1049 (6th Cir. 2014)). In
assessing whether to reassign a case, we consider:
(1) whether the original judge would reasonably be expected to have substantial
difficulty in putting out of his or her mind previously expressed views or findings;
(2) whether reassignment is advisable to preserve the appearance of justice; and
(3) whether reassignment would entail waste and duplication out of proportion to
any gain in preserving the appearance of fairness.
Id. at 652 (quoting Rorrer, 743 F.3d at 1049). Reassignment is an “extraordinary power” that
should “rarely be invoked.” Id. (second quote quoting Rorrer, 743 F.3d at 1049).
We have reviewed the record of this case, along with the allegations levied by plaintiffs
against the district court in their appellate briefing and in their motion for disqualification before
the district court. See R. 273 (Mot. to Disqualify) (Page ID #5744–67). We agree with the
No. 17-1428/1811 Brent et al. v. Wayne Cty. Dep’t of Human Servs. Page 52
district court that “no reasonable person could conclude that the Court’s decisions in favor of
[defendants] in this case are the product of deep-seated favoritism and antagonism.” R. 279
(Order at 6) (Page ID #5836). We also find no reason to believe that the district court would
have “substantial difficulty in putting out of his or her mind previously expressed views or
findings.” Lavin, 764 F.3d at 652 (quoting Rorrer, 743 F.3d at 1049). We do, however, have
grave concerns, given the procedural complexity and duration of this case, that reassignment
would result in “waste and duplication out of proportion to any gain in preserving the appearance
of fairness.” Id. We therefore decline to exercise our power of reassignment here.
III. CONCLUSION
This case has been long, complicated, and procedurally messy. We sympathize with the
plaintiffs’ efforts to remedy perceived wrongs, defendants’ efforts to defend against this
longstanding suit, and the district court’s efforts to resolve each claim properly. We now
AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with
this opinion.