NOT RECOMMENDED FOR FULL-TEXT PUBLICATION 

File Name: 17a0221n.06 

No. 15-2438 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

MARYANNE GODBOLDO, et al.,

Plaintiffs-Appellees, 

v. 

COUNTY OF WAYNE, et al., 

 Defendants-Appellants. 

ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE 

EASTERN DISTRICT OF MICHIGAN 

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 

2 

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. 
No. 15-2438 

3 

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 ministerialoperational 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, 
No. 15-2438 

4 

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 
No. 15-2438 

5 

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. 
No. 15-2438 

6 

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 
No. 15-2438 

7 

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. 
No. 15-2438 

8 

 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 
No. 15-2438 

9 

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. 
No. 15-2438 

10 

“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 
No. 15-2438 

11 

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 
No. 15-2438 

12 

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 
No. 15-2438 

13 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

arise that is not barred by preclusion. 

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

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

other state officers, is governed by the Fourth Amendment’s warrant requirement.” Kovacic v. 
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Cuyahoga Cty. Dep’t of Children & Family Servs., 724 F.3d 687, 695 (6th Cir. 2013) (alteration 

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

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

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

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

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

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

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

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

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

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

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

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

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

have determined that probable cause existed to support the order. 

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

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

asserted against Wenk. 

C. State Governmental Immunity 

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

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

appealed under 28 U.S.C § 1291.” Kindl v. City of Berkley, 798 F.3d 391, 403 (6th Cir. 2015) 
No. 15-2438 

15 

(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 
No. 15-2438 

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

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

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

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

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

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

AG-H from the home.” (R. 47, at 893.) 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

executing the order taking AG-H into custody. 
No. 15-2438 

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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. 

 
No. 15-2438 

18 

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.