the apparently awake excuse me i'd like to reserve two minutes for about the legal issue that's presented by this appeal is about applying collateral estoppel to determine the a put the billet of qualified  governmental immunity the exact issues that the district court allowed to go forward in this case have been litigated in state court and resolved against the plaintiff the determinations are binding on the point and their stablish that there was no constitutional violation such that ms wink is entitle to qualified immunity and they also establish that ms weren't acting in good faith such that she's entitled to governmental immunity in these decisions are two decisions  court of appeals one of the abuse neglect case in two thousand and twelve and one in the criminal case against misc although in two thousand and sixteen now regarding the fourth amendment claim do you think what do you think the district court missed about that i mean it as you put it it seems pretty like much like a slam dunk well as to the twenty twelve case that was in the abuse neglect case child and to rule on that issue would have no legal effect that that issue was decided in the twenty sixteenth criminal case so what the district court missed is she didn't have the opportunity of that to review this twenty sixteen case because it didn't exist it came out during the pendency of this action in this court so the fourth amendment claim that the district court allowed to go forward is very narrow and it's based on the allegation  the report of the discontinuation of this medication was not enough to establish probable cause but that she petition the court anyway because she knew that the court was entering orders without judicial review so she knew there wasn't probably cause but she went got this order anyway because she knew there was a deficient process but the problem is this is the machine court of appeals in the twenty twelve case ruled exactly that the report of the discontinuation of this medication was probable cause to believe that neglect had occurred so that precludes that that part of the cloning the other part of the claim the taking of this child into custody on march twenty fourth of two t eleven was authorized by a judicial warrant as a stablished by the machine court of appeals and twenty sixteen and in that case the machine court of appeals considered the fact that the argument that had made in the criminal case i think it's helpful to understand what happened the criminal case mr ball that was charged felonies arising out of the same incident where this child was removed eight eight hundred three counts of felonious assault to remove the child from custody and she wouldn't take kindly to that she would let him in the house the police made the decision we have this war and we're going to enter the house forcefully they did that in a fire and was discharged standoff ensued i mean you say that like in the passive voice who who discharged out of the cops is a shot at the cops this is correct i mean the the criminal case is still pending  but the the point is is her argument in the criminal case was i could resist the police entering my home because the order that they were relying on to enter was invalid well you know somewhere back in the beginning of this it got really off the tracks i mean you don't contest the fact that she was told that if this that she could take the child off this drug if if if she wanted to and there is some indication that she was winning the child off of it and see and all of a sudden they show up and want to take the child away from or where did it get off the tracks back there at the beginning i mean you don't take a child out of a home and keep her and what wherever she was kept for almost a year over her mother having control of which medications she's taking this whole thing is just almost impossible to understand i understand your concerns your the state court considered those issues and determined that removing this child from respectable was medical neglect i think there are a lot of situations where did they know this just out of curiosity did the state court know what all the background was i assume that they did i don't know i wasn't present at the probable cause hearing but the court of appeals talks about a lengthy probable cause hearing occurring  i don't know the particular arguments that were presented but i know that opportunity to present those arguments was good well i understand that that doesn't have any control it doesn't control what we do here but i have to tell you i just think it's outlandish i have a daughter who took her daughter off respond at some point and the thought that somebody would come and carry the child off and get into some kind of conflict with her that would end up in a criminal case just flabbergasting i understand what you're saying here and i hope they're not rubber stamping these orders anymore that's also my understanding is that they're not but well the but th authorities were reaching as indicated by the fact that she was given the child back and ended up with that after all this controversy months later here on her after a number of hearings in adjudications in the juvenile like in the twenty two out decision because the department of human services appealed to the family towards the release of this child from jurisdiction and the medical neglect basis observed a serious bond between her child that there were significant improvements in the child's general condition and that there was no ongoing risk of medical neglect them for a moment ago that have occurred after the child was taken out of the cage that's correct or if that's what the mother was trying to accomplish that's true your honor my point though is that the state court considered these issues and they can't be litigated here terms of whether it was appropriate to remove this child from her mother's custody that that is she's been litigated and i understand that you have concerns about the appropriateness of that decision but i think regardless it's been decided  and tell it's a rubber stamp she has testified that she did not know but at this point the machine court of appeals has reviewed that practice and said that the order that was entered in this case using that process was a va order and that can't be relayed again here i did not understand it can't but i mean we're sitting up here with our jaws dropped over what what ever is going on in this little corner of the world down there with with parental rights and employee she was not involved with implementing the process that was used or anything to do with the empress the one that made the decision to remove the child from home as i understand she's the one who made the decision to petition the court for so under these circumstances where you have a binding determination of the high of the mission court of appeals we've denied by the michigan supreme court in one case she didn't seek leave to appeal the abuse neglect case those are final decisions  not subject to further review and they preclude as a matter of law the finding of a constitutional elation and as to the state likely they also establish that she acted in good faith the allegations that the district court h were sufficient to negate a finding of good faith were that it was alleged that miss waking recklessly initiated the investigation that she improperly petitioned the court and that she improperly used the police to effect sha for removal and again those questions are all resolved by the two cases of the michigan court of appeals because you were there what was your sense why the district court didn't seem to take heed of the state court findings i think that i mean that's peculiar it's kind of hard to explain isn't it i'm not really sure you usually a federal court if they can see a state court you know resolution of everything is going to say hello but we're like bye bye yeah i'm happy to transfer any other questions y unity only that it turns on the issue of good faith your honor and the and the allegations that the district court held were sufficient to negate good faith were the same that the court held were sufficient to state a violation of the fourth amendments over the same reasons ms went cannot have recklessly initiate an investigation or improperly petition the court remove this child when the machine court of appeals has how the invest the basis of the investigation form probable cause occurred and issued a judicial warrant under the fourth amendment to remove the child on that basis i'm concerned about this occurring in the procedural context of a motion to  dismiss ok you they're both they are there's something missing but they're there yes sure i may have been an artful in the way i got you if you have any other question that paid me to try just out of curiosity here most of these events took place about the removal of the child standing in twenty eleven i think you said that the criminal charges were on the result of this point in time after all this time well that's what's going on there the criminal charges hav complicated and lengthy procedural history they were initiated it went to district court the state district court the state district court dismissed the charges on an issue that really is impertinent here  amendment warrant that allowed them to enter the home and take this child into custody so that's why it's taken so on and and them i understand that ms got good ball is unfortunately had some health problems recently i'm not sure if that good morning may please the court i'm john the evernham here on behalf of this carballo and her daughter i can quickly discuss something that the panel with discussing earlier about what i've been calling the extra pleading materials in this particular case all the departed on particular transcripts and petitions all that happened post the decision to open the case to investigate which is the loan outstanding constitutional claim so that's all pre petition what what's left now is the investigative process and the lack of discovery thereof to preclude a motion to dismiss at this particular stage now if you look and here's why and why doesn't the state court could i interrupt yes this is key i mean why wasn't why isn't the resolution by the state court on all these factual matters  preclude this read litigation here in federal court but just cook i think it would preclude and it does preclude all of the things that judge michelson dismissed all that he said i'm saying so that the if what isn't precluded in as much as a delta tells us that the state court said no problem you know it's fine that she took the child it's fine that the state court all these things were appropriate and lawful that the failure or reckless manner to investigate to actually open the case never was fully litigate it now i don't want you to rely outside of the pleadings but if you took a peek at the hearing transcripts that my brother counsel wants you to look at you'll see each time the fence or a counsel for miss garbo though wants to bring up what's going on with how did this thing get started with the with the permanency placement conference just stops the each time so there's no collateral stoppel as to that issue is well recognized and are circuit that the decision to open a case if you plead the right things under rule eight and you plead sufficient the decision that they want you left it didn't they courts blessed it courts blessed it and but at different phases that in no way here's what they blasted asked to the police relying on the order valid the police were allowing the order to go in and take the child there ok immunity applies judge looks to see whether or not an m c r three point nine to three whether or not sufficient to give to somebody that's ok our claim it's not that our claim is that me awake is the jago of this think she's the got an abuse of process where you have people acted in good faith doing what they're supposed to do believing that what what they're seeing is true and so what we're saying is there's no collateral stop loss that because were attacking the pretext of the facially valid or if you look at all of the things that they attacked and we say you shouldn't and if you do convert this matter to war for summary judgment and give us an opportunity under fifty full opportunity to cross examine people have a probable cause and the sole standard at a probable cause hearing in my state is to see whether or not there's sufficient evidence that a crime is being committed and the defendant committed the crime that is not what we're talking about here you have to accept what she pled is true look at the facts under twamley it ball and say is there enough facts here of a constitutional violation and if there is you stop so that's my answer to that i don't think you can use now if we're looking at it under that lens in the posher procedures case betters this case started out where this motion started out as want to dismiss a judgment the and or they ignore there was no nothing attached to that remember this is what we're talking about integral to the pleadings we're thinking about negotiable instrument we're thinking about contract documents to explain the pleadings not to contradict each document that our brother counsel wants to attach on to this plea including other decisions he wants to change the meaning of the  at this level can't do them twenty six now if he attached documents at the outset then a judge would have discretion to say you know what i'm going to treat this as a motion for summary judgment or what actually happen or reckless seizure of the fourth amendment and we need time to investigate and put forth discovery on the issues of investigation and the practices that brought about  so this is a kid into an abuse of process claim so everything you see the happens post p p c is all pretext for what this particular claim is really about that's left the one that's left is that me awake set in motion a series of events that subjective or cost biscoe bottle and her daughter to lose constitutional rights and done every day there has the standard is that she had to be malicious what what possible theory is that this miss wink whose job is to look at these sort of things acted so outrageously it really doesn't matter i guess i just need to see what was told to the court yet what was told to the court that there should have been some type of investigation or it should have been done more thoroughly or was done recklessly somebody ignored particular evidence because you think just for some clarity under our state law a healthcare provider must must must must mandatory disclosure of anything that may seem to be  set something for hearing i don't have to run down the court wait for if you christer are played to be true wait for an no judge to actually help do the check and figure out whether or not the requirements are met substantively not just on the page right substantively and figure out whether probable cause exists a real judge to go for and take somebody baby out of the house hold them for nine months remove their prosthetic wayne county to subvert our rules of procedure i was a law clerk the first thing we learned was a summary judgment that was our docket and roof it is six means something probably six state's case but now is not the time thomas to figure out whether we set a claim we do now alice has some discovery and figure out whether a gene would issue for a jury to decide exist if you have any other questions for me  i think it was attached the complaint wasn't attached to demonstrate that some fact was true it was attached to demonstrate that these issues had been litigated and determined what you say wasn't there were  the petition three court orders and a transcript were attached and motion to dismiss to my motion to dismiss is when its motion to dismiss the co defendants attached fourteen or fifteen exhibits that i filed a complaint or not these legal determinations were made in the machine court of appeals that's the distinction i'm trying to make is it i what they want attach to prove some fact it's not about judicial notice or get your point is that if th got to summary judgment or if it got to trial you have you'd have some basis for saying this is already been determined and why are we here exactly i was attempting to inform the court at the rule twelve stage at the