NATHANIEL BRENT; ROBERT BRENT v. WAYNE COUNTY DEPARTMENT OF HUMAN SERVICES et al.
Nos. 17-1428/1811
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 23, 2018
18a0184p.06
Before: MOORE, THAPAR, and NALBANDIAN, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
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
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.
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-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.
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). 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
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, 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
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
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
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.
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 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
or to resurrect
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). 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 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, 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
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
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 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
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 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. § 1983
The district court entered judgment in defendants’ favor on all claims brought under
We review de novo a dismissal under Rule 12(b)(6), and we will affirm the district court only if the complaint lacks
To initiate claims against Methodist and the Children‘s Center under
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
The Court‘s reasoning in West governs our case. Michigan is constitutionally
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.,
Because the district court declined to consider Methodist‘s and Children‘s Center‘s other arguments regarding plaintiffs’
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
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 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
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 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
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.
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
C. Wayne County DHS and the Individual State Defendants in Their Official Capacities
The
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.”
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 [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
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,
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
Finally, plaintiffs argue that the
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
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 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
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
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.
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
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).
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
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
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 claims based on purported
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
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 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“),
(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.
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.
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
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, 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,
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 (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
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 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
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
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
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 Martin immunity “appl[ies] with equal force to the pre-adjudication investigatory stages of a child protective proceeding,” as
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
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
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,
As noted above, we review de novo a judgment on the pleadings under
2. Section 1983
The district court properly entered judgment on plaintiffs’ claims under
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
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 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
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 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
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. 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’
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.“).
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 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
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.”
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, 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
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
(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 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.