                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0221n.06

                                           No. 15-2438

                          UNITED STATES COURT OF APPEALS
                                                                                       FILED
                                                                                  Apr 14, 2017
                               FOR THE SIXTH CIRCUIT
                                                                             DEBORAH S. HUNT, Clerk
MARYANNE GODBOLDO, et al.,

       Plaintiffs-Appellees,
v.
                                                      ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
COUNTY OF WAYNE, et al.,
                                                      EASTERN DISTRICT OF MICHIGAN
       Defendants-Appellants.




BEFORE:        DAUGHTREY, CLAY, and COOK, Circuit Judges.

       CLAY, Circuit Judge. Plaintiffs Maryanne Godboldo and her daughter, identified as

“AG-H,” initiated this suit, pursuant to 42 U.S.C. § 1983, against Defendants Wayne County and

Mia Wenk, among others, for unreasonably seizing AG-H in violation of the Fourth Amendment

based on allegations that the putative order providing for the taking of AG-H into state protective

custody was unsupported by probable cause and was not reviewed or authorized by a judicial

officer.1 Wenk filed this interlocutory appeal challenging the district court’s October 2, 2015

order denying in part Wenk’s motion to dismiss and/or for summary judgment based on qualified

immunity. For the reasons set forth below, we hold that Wenk is entitled to immunity on all of

the claims asserted against her. We therefore REVERSE the district court’s partial denial of




       1
         Wayne County and the other defendants, with the exception of Wenk, have been
dismissed from this suit. (R. 18, Stipulation of Dismissal, PageID #266; R. 47, Op. & Order
Granting in Part & Denying in Part Mot. to Dismiss, PageID #895.)
                                          No. 15-2438


Wenk’s motion to dismiss and REMAND this action to the district court for further proceedings

consistent with this opinion.

                                       BACKGROUND

       In September 2009, Maryanne Godboldo started noticing behavioral changes in her

eleven-year-old daughter, AG-H, after she was given vaccinations. Godboldo sought treatment

for her daughter at the New Oakland Child-Adolescent and Family Center (“the Center”). AG-H

was prescribed Risperdal, an anti-psychotic medication. Godboldo was told that she could

withdraw her consent to the administration of the drug at any time.

       After AG-H started taking the medication, Godboldo noticed that her daughter was

experiencing side effects, which included a thirty-two pound weight gain, extreme behavioral

changes, and agitation. Godboldo subsequently contacted the Center to complain about the side

effects and to withdraw her consent for this medication to be administered to her daughter. With

the assistance of an outside medical consultant, Godboldo began weaning AG-H off the

medication.

       The Center, after learning that Godboldo had taken AG-H off the medication, contacted

Child Protective Services (“CPS”) to report Godboldo’s action as alleged neglect. Mia Wenk, a

social worker with CPS, was assigned to this case and scheduled a Permanent Placement

Conference for March 23, 2011, but did not conduct any further investigation into the allegations

of abuse. At this conference, which Godboldo did not attend, Wenk and others decided to

petition the court for removal of AG-H from Godboldo’s custody, even though the only

information available was that Godboldo had “abruptly” taken AG-H off of the Risperdol. The

following day, on March 24, 2011, Wenk submitted an “Order to Take Child(ren) into Protective

Custody” to the Wayne County Circuit Court. This order was approved, though not by a judge.



                                                2
                                           No. 15-2438


Instead, a probation officer used a judge’s stamp to approve the order without any judicial input

or review.

        Wenk then enlisted the help of the Detroit police in order to take AG-H into protective

custody. After Godboldo refused entry to the police and Wenk, the police used a crowbar to

break into the home. Godboldo was arrested and charged for having endangered the lives of the

police officers. AG-H was taken to the Hawthorne Center, where she stayed until December 12,

2011.

        Godboldo and AG-H (“Plaintiffs”) filed suit in the United States District Court for the

Eastern District of Michigan on March 12, 2014, and named Mia Wenk, along with the County

of Wayne, the Wayne County Circuit Court, and three additional individuals, as Defendants.

Relevant to this appeal, the complaint asserts the following claims against Wenk: violation of

Plaintiffs’ Fourth and Fourteenth Amendment rights to due process, equal protection, to be free

from unreasonable searches and seizures, and to be free from the use of excessive force (Count

III); liability under state law, including statutes, common law, rules, regulations, and ordinances,

for the violation of Plaintiffs’ rights “to be free from the negligent, reckless, knowingly and/or

intentionally tortuous [sic], wilful [sic], wanton and/or grossly negligent execution of ministerial-

operational duties contrary to the Michigan Constitution” (R. 1, Compl., ¶ 48) (Count IV); and

intentional infliction of emotional distress (Count V).

        Wenk filed a “Motion to Dismiss and/or for Summary Judgment” on May 19, 2014,

which asserted that Wenk was entitled to qualified immunity, Eleventh Amendment immunity,

and statutory and common law immunity under state law. The district court found that a motion

for summary judgment was premature, and decided the motion as a motion to dismiss for failure

to state a claim upon which relief can be granted. In its opinion and order issued on October 2,



                                                 3
                                            No. 15-2438


2015, the court first found that Wenk was entitled to absolute immunity in connection with her

actions in filing the petition to take AG-H into protective custody. The court further determined

that Plaintiffs had failed to plead a claim against Wenk for substantive and procedural due

process violations and that the complaint, insofar as it asserted such claims, should be dismissed.

The district court further dismissed the § 1983 claim against Wenk for violation of Plaintiffs’

rights to equal protection under the law because Plaintiffs failed to allege that they were

members of a suspect class or that they were treated differently from others similarly-situated to

them. The district court, however, denied Wenk’s motion to dismiss the § 1983 claim against

Wenk for the allegedly unreasonable seizure.

       As for the state law claims against Wenk, the district court first noted that Count IV did

not actually specify which state laws Wenk allegedly violated. The court, however, went on to

find that Wenk failed to meet her burden of establishing that she was entitled to governmental

immunity as to any intentional torts asserted against her. The court therefore denied her motion

to dismiss as to Counts IV and V. Finally, the court denied Wenk’s motion to dismiss insofar as

it sought to dismiss the intentional infliction of emotional distress claim in Count V because the

complaint alleged facts that, if true, would establish all of the elements of that claim.

       On October 16, 2015, Wenk filed a motion for reconsideration, in which she argued that

the district court should have considered the records attached to the motion to dismiss and that

such consideration would not have improperly converted the motion into one for summary

judgment. She also argued that the Fourth Amendment claim should be dismissed because there

was probable cause to believe that abuse or neglect was occurring. Wenk also asked for

reconsideration of the court’s order denying her qualified immunity on the federal claims

asserted against her and denying her governmental immunity on the state law claims. Wenk



                                                  4
                                            No. 15-2438


further challenged the district court’s determination that the complaint alleged facts that would

establish that her actions were extreme and outrageous, as required for the intentional infliction

of emotional distress claim against her. The court denied her motion for reconsideration on

October 27, 2015, and this timely appeal followed.

                                           DISCUSSION

       I.      Jurisdiction

       We generally have jurisdiction to hear an appeal of an order denying qualified immunity

pursuant to 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, we may

exercise jurisdiction over such an appeal only if “it turns on an issue of law.” Kennedy v. City of

Cincinnati, 595 F.3d 327, 333 (6th Cir. 2010) (quoting Estate of Carter v. City of Detroit, 408

F.3d 305, 309 (6th Cir. 2005)). A defendant entitled to invoke qualified immunity “may not

appeal a district court’s . . . order insofar as that order determines whether or not the pretrial

record sets forth a ‘genuine’ issue of fact for trial.” Johnson v. Jones, 515 U.S. 304, 319–320

(1995). “[T]o the extent that the denial of qualified immunity is based on a factual dispute, such

a denial falls outside of the narrow jurisdiction of this Court.” Harrison v. Ash, 539 F.3d 510,

517 (6th Cir. 2008) (citations omitted).

       Plaintiffs argue that this Court lacks jurisdiction to hear this appeal because Wenk seeks

to challenge the facts alleged in the complaint and is not presenting a pure legal argument about

whether a clearly established constitutional right was violated. Wenk, however, argues that

jurisdiction is proper, as she is not disputing the facts. We find that Wenk is, in fact, presenting a

purely legal question about whether the facts as pled by Plaintiffs establish that Wenk is liable in

spite of collateral estoppel and the qualified immunity doctrine. Therefore we have jurisdiction

to entertain this interlocutory appeal.



                                                  5
                                           No. 15-2438


       II.     Analysis

               A.     Standard of Review

       “When a defendant appeals the denial of a motion to dismiss based on qualified

immunity, we review de novo whether the complaint alleges violation of a clearly established

constitutional right.” Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 562 (6th Cir. 2011)

(citations omitted). “In reviewing the motion to dismiss, we construe the complaint in the light

most favorable to the plaintiff, accept all well-pleaded factual allegations in the complaint as

true, and draw all reasonable inferences in favor of the plaintiff.” Courtright v. City of Battle

Creek, 839 F.3d 513, 518 (6th Cir. 2016) (citing Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th

Cir. 2007); and Heyne, 655 F.3d at 562–63).

               B.     Qualified Immunity

       Public officials who violate a plaintiff’s constitutional rights while acting under the color

of state law may be liable under 42 U.S.C. § 1983. Kentucky v. Graham, 473 U.S. 159, 166

(1985). However, the qualified immunity defense bars individual liability where “a reasonable

official in the defendant’s position would not have understood his or her actions to violate a

person’s constitutional rights.” Gregory v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006)

(citing Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). “Qualified immunity ‘gives ample

room for mistaken judgments by protecting all but the plainly incompetent or those who

knowingly violate the law.’” Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009)

(quoting Hunter v. Bryant, 502 U.S. 224, 229 (1991)).

       To determine whether an officer is entitled to qualified immunity, a court must consider

“(1) whether the facts, when taken in the light most favorable to the party asserting the injury,

show the officer’s conduct violated a constitutional right; and (2) whether the right violated was



                                                6
                                           No. 15-2438


clearly established such ‘that a reasonable official would understand that what he is doing

violates that right.’” Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Saucier v.

Katz, 533 U.S. 194, 201–02 (2001)). These two prongs of the qualified immunity test may be

addressed in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Plaintiffs bear the

burden of showing that a clearly established right has been violated and that the official’s

conduct caused that violation. See Chappell, 585 F.3d at 907.

       Plaintiffs in the instant case allege that Wenk violated their Fourth Amendment right to

be free from unreasonable seizures, which applies to the states and their political subdivisions

through incorporation by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961);

Ker v. State of Cal., 374 U.S. 23, 30–31 (1963). Neither the complaint nor the accompanying

briefing specify how, exactly, Plaintiffs contend Wenk violated that right. However, the district

court attempted to clarify and describe the violation as follows:

       Plaintiffs say that Wenk took advantage of the deficient review process in place at
       the Wayne County Circuit Court by presenting a facially invalid petition, knowing
       that it would not be subject to review by a judge. Indeed, a fair reading of the
       Complaint is that Wenk knew that there was no probable cause to take AG-H into
       custody.

(R. 47, Op. & Order Granting in Part & Denying in Part Mot. to Dismiss, PageID #888.) During

oral argument, Plaintiffs represented that Wenk violated their Fourth Amendment rights by

initiating the investigation in the first place. However, under either theory we conclude that

Plaintiffs are collaterally estopped from claiming that their Fourth Amendment rights were

violated because the Michigan state courts have already determined the dispositive issues in this

case—that there was probable cause to take AG-H into custody and that the order authorizing the

taking of AG-H was valid despite the lack of judicial review or authorization.




                                                 7
                                           No. 15-2438


        As an initial matter, we are not coming to this case with a blank slate. Instead, Plaintiffs

have litigated both the existence of probable cause and the validity of the court order taking

AG-H into custody in state court, as those issues were relevant for both AG-H’s custody

determination and Godboldo’s criminal prosecution.          Wenk now asks this Court to give

preclusive effect to the relevant opinions. Wenk first points to the decision by the referee, which

was affirmed by a judge, that probable cause existed to take AG-H into protective custody based

on the allegations of abuse relating to the withdrawal of her medication. (See R. 17-5, Probable

Cause Hr’g Tr., PageID #210–11; R. 17-7, Request & Order for Review of Referee

Recommendation, PageID #218.) This probable cause determination was not challenged on

appeal, and jurisdiction over AG-H was held to be proper. In re Godboldo-Hakim, Nos. 305858,

308040, 2012 WL 2914260, at *1–2 (Mich. Ct. App. July 17, 2012). In the second opinion,

People v. Godboldo, No. 323261, 2016 WL 299707 (Mich. Ct. App. Jan. 21, 2016), the

Michigan Court of Appeals specifically held that the order to take AG-H into custody was valid

both under Michigan law and the Fourth Amendment of the United States Constitution. Id. at

*4–6.    In doing so, the Michigan Court of Appeals reversed the state district court’s

determination, which was affirmed by the Wayne County Circuit Court, “that the order to take

the child into protective custody was invalid since it was not signed by a judge and there was no

judicial review of the order.” Id. at *3. Plaintiffs, for their part, do not address the elements

required for collateral estoppel, but instead argue that consideration of these state court decisions

is improper on a Rule 12(b)(6) motion.

        Plaintiffs’ argument that we cannot consider the Michigan state court opinions is

unavailing. Contrary to Plaintiffs’ representations, we are not being asked to take judicial notice

of adjudicative facts, as contemplated by Federal Rule of Evidence 201. See Getty Petroleum



                                                 8
                                           No. 15-2438


Mktg., Inc. v. Capital Terminal Co., 391 F.3d 312, 322 (1st Cir. 2004) (Lipez, J., concurring)

(explaining the difference between judicial notice of facts, which is governed by Federal Rule of

Evidence 201, and judicial notice of law). Instead, Wenk seeks to enforce the decisions of two

dispositive Michigan state court opinions, as they directly relate to the § 1983 action filed against

her. As we have previously held, we “are required to take judicial notice of the statute and case

law of each of the states.” Schultz v. Tecumseh Prods., 310 F.2d 426, 433 (6th Cir. 1962)

(citations omitted); see also Lamar v. Micou, 114 U.S. 218, 223 (1885) (“The law of any state of

the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the

courts of the United States are bound to take judicial notice, without plea or proof.”). Therefore,

consideration of these Michigan court opinions is not only proper, it is required.

       Moreover, the district court erred to the extent that it failed to consider the relevant state

court orders attached to Wenk’s motion on the basis that they were extra-pleading materials not

referenced in the complaint. While it is generally true that an “[a]ssessment of the facial

sufficiency of the complaint must ordinarily be undertaken without resort to matters outside the

pleadings,” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011) (citation

omitted), we have recognized exceptions to that blanket rule. One such exception includes

public records, including court orders. Jones v. City of Cincinnati, 521 F.3d 555, 562 (6th Cir.

2008) (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). Therefore,

consideration of the state court orders taking AG-H into state custody and finding that probable

cause existed are properly considered on a 12(b)(6) motion. For the same reason, or based on

judicial notice, we can consider the Michigan Court of Appeals’ decision, which was released

during the pendency of this appeal, determining that the protective custody order allowing Wenk

to take AG-H from Godboldo’s home was valid.



                                                 9
                                           No. 15-2438


       “The Full Faith and Credit Act mandates that ‘judicial proceedings . . . shall have the

same full faith and credit in every court within the United States . . . as they have by law or usage

in the courts of such State . . . from which they are taken.’” Spectrum Health Continuing Care

Grp. v. Anna Marie Bowling Irrevocable Tr. Dated June 27, 2002, 410 F.3d 304, 310 (6th Cir.

2005) (alterations in original) (quoting 28 U.S.C. § 1738). “The United States Supreme Court

has interpreted the act as requiring that ‘a federal court must give to a state-court judgment the

same preclusive effect as would be given that judgment under the law of the State in which the

judgment was rendered.’” Id. (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.

75, 81 (1984)). Therefore, we turn to Michigan law to determine whether prior decisions in the

Michigan state courts foreclose Plaintiffs’ claims here.

       Under Michigan law, the application of collateral estoppel requires that “(1) a question of

fact essential to the judgment must have been actually litigated and determined by a valid and

final judgment; (2) the same parties must have had a full [and fair] opportunity to litigate the

issue; and (3) there must be mutuality of estoppel.” Monat v. State Farm Ins. Co., 677 N.W.2d

843, 845–46 (Mich. 2004) (alteration in original) (internal quotations and footnote omitted).

Collateral estoppel further requires that “the same issue was actually litigated in the first

proceeding,” and that the “issue was necessary to the judgment.” Spectrum Health Continuing

Care Grp., 410 F.3d at 310 (quoting United States v. Dominguez, 359 F.3d 839, 842 (6th Cir.

2004)). The Michigan Supreme Court has since determined that “mutuality [is] not required

when collateral estoppel [is] being used defensively,” as it is here. Gilbert v. Ferry, 413 F.3d

578, 581 (6th Cir. 2005) (per curiam) (citing Monat, 677 N.W.2d at 850).

       It is clear from the record that the issues to which Wenk seeks to give preclusive effect—

probable cause to take AG-H into custody and the validity of the court order—were actually



                                                 10
                                           No. 15-2438


litigated and determined by a valid and final judgment. The parties also had a full opportunity to

litigate the issue. As noted by the Michigan Court of Appeals, the issue of probable cause was

addressed extensively and ended with a state court referee determining that probable cause

existed. In re Godboldo-Hakim, 2012 WL 2914260, at *2. That determination was subsequently

reviewed by a judge. Godboldo chose not to challenge the probable cause determination on

appeal. Id. at *1. Based on the transcripts from the probable cause hearing, as well as the

subsequent court orders, it is clear that the issue of probable cause was actually litigated and

necessary to the judgment, as the entire purpose of those proceedings was to determine whether

probable cause existed for the state to take AG-H out of Godboldo’s custody. (See R. 17-5, at

210–11; R. 17-7, at 218); see also In re Godboldo-Hakim, 2012 WL 2914260, at *1.

       Similarly, the validity of the court order was challenged first in front of a state district

court, then a circuit court, and was eventually resolved by the Michigan Court of Appeals.

People v. Godboldo, 2016 WL 299707, at *3–6. The Michigan Supreme Court subsequently

denied leave to appeal, thus meaning the decision is final. People v. Godboldo, 878 N.W.2d 856

(Mich. 2016) (mem). The Michigan Court of Appeals also necessarily determined that the lack

of judicial review of the order allowing Wenk to take AG-H into custody did not render the order

invalid under state law and the Fourth Amendment. The state district and circuit courts clearly

held that the order was invalid based on the fact that it was signed by a probation officer and not

a judge. Godboldo, 2016 WL 299707, *3. However, the Michigan Court of Appeals reversed

that ruling and held both that “the order to take [AG-H] into protective custody complied with

the court rule that was in effect at the time that the order was entered,” id. at *4, and that “the

order was also a constitutional warrant under the Fourth Amendment to the United States

Constitution,” id. at *5. In doing so, the Michigan Court of Appeals necessarily rejected the



                                                11
                                           No. 15-2438


basis upon which the two lower courts invalidated the order—the lack of judicial review or

oversight—despite the fact that the court did not explicitly state the reasons for its holding. The

holding was also necessary to the judgment of the court, as the Michigan Court of Appeals relied

on the finding that the order was valid and lawful to conclude that Godboldo could not argue that

she was properly resisting the unlawful arrest of her daughter. Id. at *7.

        Moreover, both AG-H and Godboldo were parties, or were in significant enough privity

to a party, to the child-protective custody determination. See In re Godboldo-Hakim, 2012 WL

291420, at *1; see also Marran v. Marran, 376 F.3d 143, 151–52 (3d Cir. 2004) (collecting cases

and holding that “[e]ven if a child is not a party to a custody action her federal claims will be

barred if the child is in privity with the named parties (her parents)”); Aguilar v. Los Angeles

Cty., 751 F.2d 1089, 1093 (9th Cir. 1985) (citation omitted) (noting that collateral estoppel has

been expanded “to prevent children from relitigating an issue decided in a previous action

brought by their mother”). Thus, both AG-H and Godboldo are bound by the Michigan court’s

determination that there was probable cause to take AG-H into protective custody. Furthermore,

Godboldo is bound by the Michigan Court of Appeals’ decision holding that the order taking

AG-H into custody was valid under the Fourth Amendment, as she was the defendant in that

case.

        Based on the foregoing analysis, we conclude that Plaintiffs are collaterally estopped

from re-litigating the existence of probable cause to take AG-H into custody and the validity of

the related court order, based on the Michigan courts’ previous decisions on these issues.

However, we must pause to note that this case may very well have been decided differently had

this Court been able to address Plaintiffs’ constitutional claims outside the confines of the

Michigan courts’ previous decisions. The Supreme Court has recognized that an individual



                                                12
                                          No. 15-2438


issuing a warrant is not required to be a lawyer or a judge, but still “must be neutral and

detached, and he must be capable of determining whether probable cause exists for the requested

arrest or search.” Shadwick v. City of Tampa, 407 U.S. 345, 349–50 (1972). The “neutral and

detached” requirement is meant to ensure that the issuing magistrate is not associated with any

law enforcement activity. Id. at 350–51. This Court, however, has noted that the person signing

a warrant must also be authorized by state law to do so. United States v. Master, 614 F.3d 236,

240 (6th Cir. 2010). Regrettably, the Michigan Court of Appeals failed to adequately explain

why, exactly, the “rubber-stamping” procedure used by probation officers in the Wayne County

Circuit Court was valid under either Michigan law or the Fourth Amendment, despite being

presented with the question and two lower court decisions invalidating the court order based on

the lack of judicial review. Instead, the Michigan Court of Appeals simply stated that the order

was valid under the laws of both Michigan and the United States. Notwithstanding the complete

lack of any clear legal analysis by the Michigan Court of Appeals and our concern that the

procedure used in Wayne County, Michigan at the time AG-H was removed from her mother’s

custody may have been constitutionally suspect, we must still give preclusive effect to the state

court’s holding, as the issue of the order’s validity was raised and necessarily decided. See

Spectrum Health Continuing Care Gp., 410 F.3d at 310; People v. Godboldo, 2016 WL 299707,

at *3–6. However, our opinion should not be interpreted to foreclose all future challenges to the

procedures used in Wayne County or elsewhere in Michigan, should such an appropriate case

arise that is not barred by preclusion.

       We further find that the issues decided by the Michigan courts are dispositive of

Plaintiffs’ Fourth Amendment claim that AG-H was unlawfully seized. “[A] social worker, like

other state officers, is governed by the Fourth Amendment’s warrant requirement.” Kovacic v.



                                               13
                                          No. 15-2438


Cuyahoga Cty. Dep’t of Children & Family Servs., 724 F.3d 687, 695 (6th Cir. 2013) (alteration

in original) (quoting Andrews v. Hickman Cty., 700 F.3d 845, 859 (6th Cir. 2012)). “The

removal of a child from his custodial parents’ home is a seizure for Fourth Amendment purposes,

which is constitutionally reasonable if it is pursuant to a court order, is supported by probable

cause, or is justified by exigent circumstances.” Krantz v. City of Toledo Police Dep’t, 197 F.

App’x 446, 453 n.5 (6th Cir. 2006) (citing Brokaw v. Mercer Cty., 235 F.3d 1000, 1010 (7th Cir.

2000)) (additional citation omitted).   However, as the Michigan state courts have already

determined, albeit unpersuasively, that there was both probable cause and a valid warrant to take

AG-H into protective custody, Plaintiffs cannot establish that a Fourth Amendment violation

occurred. Moreover, Plaintiffs’ attempt to re-characterize the violation as related to Wenk’s

allegedly improper or insufficient investigation is unavailing, inasmuch as the Michigan courts

have decided that the order to take AG-H into custody was supported by sufficient probable

cause to be valid. Whether Wenk could have investigated more thoroughly is irrelevant to the

determination of whether a Fourth Amendment violation occurred as long as the Michigan courts

have determined that probable cause existed to support the order.

        Because Plaintiffs have not established that their constitutional rights were violated, we

reverse the district court’s denial of qualified immunity as to the Fourth Amendment claim

asserted against Wenk.

       C.     State Governmental Immunity

       “Under Sixth Circuit precedent, a district court’s ruling denying Michigan governmental

immunity under Michigan Compiled Laws § 691.1407 is a ‘final order’ that may be immediately

appealed under 28 U.S.C § 1291.” Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015)




                                               14
                                           No. 15-2438


(citing Smith v. Cty of Lenawee, 600 F.3d 686, 689–90 (6th Cir. 2010)). A government official is

entitled to governmental immunity for an intentional tort if he establishes the following:

       (a) The acts were undertaken during the course of employment and the employee
       was acting, or reasonably believed that he was acting, within the scope of his
       authority,

       (b) the acts were undertaken in good faith, or were not undertaken with malice,
       and

       (c) the acts were discretionary, as opposed to ministerial.

Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008). Lack of good faith is defined as

“‘malicious intent, capricious action or corrupt conduct’ or ‘willful and corrupt misconduct.’”

Id. at 225 (first quoting Veldman v. Grand Rapids, 265 N.W. 790, 794 (Mich. 1936); then

quoting Amperse v. Winslow, 42 N.W. 823, 827 (Mich. 1889)). Specifically, “willful and wanton

misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such

indifference to whether harm will result as to be the equivalent of willingness that it does.” Id.

(quoting Burnett v. City of Adrian, 326 N.W.2d 810, 812 (Mich. 1982)).

       Plaintiffs attempt to assert various state law claims against Wenk, stating that Wenk

violated Plaintiffs’ rights “under statutes, common law, rules, regulations and/or ordinances of

the State of Michigan, to be free from the negligent, reckless, knowingly and/or intentionally

tortuous [sic], wilful [sic], wanton and/or grossly negligent execution of ministerial-operational

duties contrary to the Michigan Constitution.” (R. 1, at ¶ 48.) As the district court noted, “the

legal basis of Plaintiffs’ claims in Count IV is unclear: they do not cite any particular theory or

state law. Nor does Plaintiffs’ response shed any light on the matter.” (R. 47, at 892.) We are

thus faced with the difficulty of evaluating whether state governmental immunity applies based

on pleadings that would not satisfy the requirements of Federal Rule of Civil Procedure 8.

See Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (“The factual


                                                15
                                           No. 15-2438


allegations in the complaint need to be sufficient to give notice to the defendant as to what

claims are alleged . . . .”). However, Plaintiffs also assert a claim against Wenk for intentional

infliction of emotion distress, which the district court interpreted to be based “not only on

Wenk’s execution of the order (especially the use of police officers to remove the child from the

home), but also on Wenk’s conduct in initiating the investigation and taking advantage of the

practices of the court in allowing probation officer review of custody petitions in order to remove

AG-H from the home.” (R. 47, at 893.)

       To the extent that Plaintiff asserts intentional torts, including the intentional infliction of

emotion distress claim, against Wenk based on the same conduct underlying the Fourth

Amendment § 1983 claim against her, we conclude that such claims should be dismissed. As

explained above, the Michigan courts have already determined that Wenk acted lawfully in

procuring an order to take AG-H into custody, as the order was supported by probable cause and

was valid under Michigan law and the Fourth Amendment. Assertion of liability under tort is

appropriate only when there has actually been wrongdoing on the part of the alleged tortfeasor.

See In re Bradley Estate, 835 N.W.2d 545, 555 (Mich. 2013) (“We therefore hold that ‘tort

liability’ as used in MCL 691.1407(1) means all legal responsibility arising from a

noncontractual civil wrong for which a remedy may be obtained in the form of compensatory

damages.”); cf. Allen v. McCurry, 449 U.S. 90, 102 n.18 (1980) (recognizing that “a state court

decision that the police acted legally cannot but foreclose a claim that they acted in bad faith”).

Because Wenk’s actions were authorized by law, she was entitled to immunity from any tort

actions based on those actions. We therefore reverse the district court’s denial of immunity for

the tort claims asserted against Wenk based on her actions in investigating, obtaining, and

executing the order taking AG-H into custody.



                                                 16
                                        No. 15-2438


                                      CONCLUSION

       Because the Michigan state courts previously determined that probable cause existed to

take AG-H into custody and that the order authorizing the taking of AG-H was valid, we

REVERSE the district court’s denial of qualified immunity and the denial of state governmental

immunity, and REMAND the action for further proceedings consistent with this opinion.




                                             17
                                           No. 15-2438


       COOK, Circuit Judge, concurring. I join the majority opinion with one exception.

Given the court’s conclusion that “Plaintiffs are collaterally estopped from re-litigating the

existence of probable cause,” I do not join the discussion of how this case may “have been

decided differently had this Court been able to address Plaintiffs’ constitutional claims.” See Op.

at 12–13.




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