1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0035p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

R ICHARD W ESLEY , Plaintiff-Appellant ,

v

.

A LISON C AMPBELL , et al., Defendants ,

J OANNE R IGNEY , individually and inher capacity as a police officer for the City of Covington, Defendant-Appellee

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ ┘ No. 13-5960

Appeal from the United St ates District Court for the Eastern District of Kentucky at Covington. No. 2:10-cv-00051—David L. Bunning, District Judge. Argued: March 12, 2014 Decided and Filed: March 2, 2015 Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

_________________ COUNSEL

ARGUED: Paul J. Hill, Fort Mitchell, Kentucky, fo r Appellant. Bryce C. Rhoades, CITY OF COVINGTON, Covington, Kentucky, for Appellee. ON BRIEF: Paul J. Hill, Fort Mitchell, Kentucky, for Appellant. Bryce C. Rhoades, Frank E. Warnock, CITY OF COVINGTON, Covington, Kentucky, for Appellee. 

### >No. 13-5960 Wesley v. Campbell, et al. Page 2

_________________ OPINION

_________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. In this civil righ ts case, plaintiff Richard Wesley, formerly an elementary school counselor and child behavioral specialist, appeals two adverse decisions by the district c ourt in the lawsuit he brought against Joanne Rigney, an officer with the Covington Police Depart ment, for false and retaliatory arrest. After finding probable cause, the distri ct court initially dismissed Wesley’s false arrest claim for failure to state a claim upon which relief could be granted and, subsequently, granted summary judgment to Rigney on Wesley’s re lated claim for retaliatory arrest . Both claims arose from the same incident, in which one of Wesley’s then -students accused Wesley of sexually assaulting
him and two other students in an office at th e school’s administrative center. Rigney waited
almost three months after the student made his al legations before seeking a warrant for Wesley’s arrest and then omitted from her application a range of material facts demonstrating the unreliability of the student and his allegations . Taken together, those omissions thoroughly undermined the existence of proba ble cause. Because the distri ct court’s improper finding of probable cause supported its decisions to dismiss th e complaint, we revers e the district court’s judgment and remand the case for trial.

I. FACTUAL AND PROCEDURAL BACKGROUND
The sexual-abuse allegations leveled against Richard Wesleywere made by a seven-yearold male student referred to in this opinion as “J.S.” At the tim e, Wesley served as a counselor and intervention specialist at Sixth District El ementary School in Covington, Kentucky, where he provided a range of services to students w ho, like J.S., suffered from psychological and behavioral problems. On February 5, 2009, Wesley responded to reports of a disturbance in a school hallway and found J.S. in the midst of an attempt at self-har m. Wesley removed J.S. from the hallway and brought the boy into his o ffice, located in the middle of the school’s administrative center, where he had been couns eling two other students when the disturbance began. While Wesley left to contact J.S.’s moth er, school secretary Peri Fischer stayed with theNo. 13-5960 Wesley v. Campbell, et al. Page 3

three students. She later testified that J.S. a nd Wesley were never alon e together in Wesley’s office that day.
Wesley reached J.S.’s mother by phone, inform ed her of the incident, and recommended that she take J.S. to NorthKey Community Care, a local mental health center. Before J.S.’s mother arrived, Wesley told J.S., “[W]hatever you do, make sure you tell them everything that is bothering you at the hospital, whether it’s an ything that’s bothering you at school, whether anything is bothering you at home, make sure you let them know .” When J.S.’s mother arrived at the school, Wesley called a cab for her and J.S., and followed them to NorthKey in his own car to make sure that they arrived. Wesley had an extensive record of counseling with J.S., knew that the boy had previously been hospitalized in a local psychiatric unit, had tried to arrange for J.S. to be evaluated at NorthKey, and knew that the boy’s mother had failed to appear for his appointments there.
Before entering NorthKey, J.S.’s mother angr ily confronted Wesley in the parking lot, shouting, “I know what you said to him, I know what you told hi m,” and demanded that Wesley leave NorthKey. According to J.S.’s mother, J.S. disclosed during the car ride that Wesley had sexually abused him. She repeated those allegations to NorthKey personnel after Wesley left the
center and returned to Sixth District School. NorthKey contacted th e Kentucky Cabinet for Health and Family Services and arranged fo r Alison Campbell, a social worker with the Cabinet’s Child Protection Branch, to meet J. S. and his mother that same day. In her investigative notes from her first interview w ith J.S., Campbell recorded J.S.’s allegations:
[J.S.] reported that earlier that day he was in Mr. Wesl ey’s office due to being in trouble at school. When [J.S.] first arrive d there were two other children in the room but a little while later they all left and he was alone with Mr. Wesley. Mr. Wesley closed the door (he indicated it was not shut all the way but was open a small crack) and stood next to [J.S.] by th e round table in his office. Mr. Wesley then touched [J.S.]’s “priva te part” with his left hand. [J.S.] reported the touch was on top of the clothes. He further reported that he and Mr. Wesley both had their clothes on. He denied Mr. Wesley said anything at that time but before [J.S.] left Mr. Wesley grabbed [J.S.] on the shoulder and told him not to tell anyone. As a result of this complaint, Campbell contacted Joanne Rigney, a detective in the Covington Police Department with whom she had worked on similar cases, and with whom sheNo. 13-5960 Wesley v. Campbell, et al. Page 4

had become friends. Notably, Rigney’s particip ation in the ensuing investigation came at Campbell’s instigation, rather than throughnormal assignment cha nnels in the police department. Both Campbell and Rigney were presen t at a forensic intervie w of J.S. that took place six days later at the Children’s Advoc acy Center (CAC), a non-profit organization providing services to abused child ren. At this interview, J.S. described sexual abuse far more
serious than that which he had disclosed in his earlier meeting with Campbell. He alleged that following the self-harm incident on February 5, We sley had brought J.S. in to his office and, with the door cracked open, sodomized him by “put[ting] hi s private part in [J.S.’ s] butt.” He stated that during this assault, Wesley was nude but that J.S.’s pants were on—pressed by the interviewer, J.S. clarified that Wesley had pulle d down his “soft pants” in the back. Asked “how were you when [Wesley] did [the sodomy],” J. S. responded that both he and Wesley were “[s]tanding straight up.” During the abuse, J. S. recalled looking out the office’s ground-floor window and seeing his “Mom and Dad, and . . . sister” just outside the window. J.S. stated that having Wesley’s “private part in [his] butt” ma de him feel “sad.” It “didn’t feel good,” he elaborated, because “it [fe lt] like I was being treated wrong.” J.S. also recalled certain details about Wesley’s office, such as the presence of a window and a blue table. More ominously, he stated that Wesley had been sexually assaulting him in this manner for over a year and that Wesley had been sexually abusing two ot her children at the school as well.
As part of their joint investigation, Campbell and Rigney visited Sixth District Elementary the same day. Their goal was to have J.S. identify the two boys in Wesley’s office during the February 5 incident, as well as the two other abuse victims he had mentioned during the CAC interview. J.S., however, was out sick. Because J.S. was unavailable to make identifications, Campbell and Rigney sought to locate the other abuse victims by using school records to identify “any child that [Wesley] had access to” on more than one occasion over the previous year. Those records indicated that 35 students had met previously with Wesley, a figure Rigney and Campbell considered to be the pool of children Wesley would have been able to abuse. They also spoke with Principal Anthony Ross, who allowed Rigney and Campbell to search Wesley’s office, where they found school scheduling records confirming that he and J.S. had met together regularly. Cons istent with J.S.’s description, they also found that Wesley’s
office contained a window and a blue table.No. 13-5960 Wesley v. Campbell, et al. Page 5

Rigney and Campbell did not seek to verify J.S.’s allegations by questioning potential
witnesses at the school. For example, when Rigney spoke to Pr incipal Ross, she did not ask if he
had witnessed the incident on February 5. Nor did she speak with the school secretary, Peri Fischer, even though her desk directly faced Wesl ey’s office. Later, in deposition testimony, Rigney agreed that she “didn’t as k anyone at the school anything a bout the allegations that J.S. made,” because she did not feel that their answers were “important to that specific part of the investigation.” This omission proved an unfort unate one for Wesley, because Fischer, a genuine eyewitness, would later confirm in an affidavit that no inappropriate behavior occurred.
The next day, February 12, Campbe ll returned to the school with six other social workers. Working in shifts, they removed from class each of the 35 children identified as having met with Wesley more than once and interviewed them, individually, regardi ng sexual abuse, “bad touching,” and their relationships with Wesley. The children uniformly denied any inappropriate or unprofessional behavior on Wesley’s part.
Rigney also arranged for J.S. to undergo a medical examination for signs of physical trauma from the alleged anal ra pes. He was examined by Dr. Philip Lichtenstein on February 18 at the CAC. On April 15, the “medical exam came back with no concerns.” After scheduling this examination, Rigney and Campbell took no furt her steps to investigate J.S.’s allegations.

When he returned to Sixth District School after his initial confr ontation with J.S.’s mother, Wesley was placed on indefinite administrative leave and was later formally terminated. During this time, Wesley made efforts to set up an interview with Rigney regarding the allegations, but for reasons the parties dispute, no interview ever occurred. Nor was he interviewed by Campbell, who nevertheless d ecided that J.S.’s allegations had been substantiated. Accordingly, she prepared a fo rmal “substantiated investigation notification letter,” which she sent to the Cabinet, the state teacher licensing board, Si xth District Elementary School, and Wesley. The letter was da ted March 19, 2009, and read as follows:
The factual basis for the substantiated finding of abuse or neglect . . . is as follows: On February, 5, 2009 [J.S.] disclo sed to the Cabinet that Mr. Wesley fondled his penis. On February 11, 2009 at the Children’s Advocacy Center [J.S.] further disclosed that on multiple occasions, occurring over a one year period that Mr. Wesley anally sodomized him.No. 13-5960 Wesley v. Campbell, et al. Page 6

The letter further explaine d that Wesley had an opportunity to appeal the finding administratively; if he chose to forgo the appeal, then his name would be placed on a state-wide sex offender registry, making him ineligible to work as a teacher or adopt children. Through counsel, Wesley filed an appeal on March 31, 2009. Rigney learned of Wesley’s appeal sometime in early- to mid-April.
On April 27, 84 days after the initial abuse allegations and te n days after learning of the negative medical examination, Ri gney sought a warrant for Wesley ’s arrest. In support, she prepared an affidavit attesting to the following facts:
Affiant states that on February 06, 2009, she was assigned to investigate a Sexual Abuse in the First Degree report. Affian t states that she was contacted by the Cabinet for Health and Family Services in regard to a disclosure that was made by the minor victim J.S., age 7, on February 05, 2009. At that time, J.S. stated that the defendant had fondled his penis while in the defendants [sic] office at 6th District School. The defendant is employe d as a school counselor at 6th District School. The minor, J.S., was then scheduled for a forensic interview at the Children’s Advocacy Center, at that time th e child stated that the defendant had put his private part in his butt. J.S. st ated that this took place in Mr. Wesley’s office. J.S. described that the defendan t pulled down the back of his pants while he was near a blue round table. J.S. al so advised that the defendant was squeezing J.S.’s private part. J.S. stated that he was told by the defendant that he would kick him out of school if he told anyone. J.S. st ated that this happen ed more than once. A state magistrate reviewed the affidavit and co ncluded that there was pr obable cause to arrest Wesley. Sheriff’s deputies then arrested Wesley at his home, and he remained in jail until he was able to post bond.
The case against Wesley fell apart soon afterwards. J.S. and his mother refused to cooperate with the prosecution’s investigation, and the state’s atto rney concluded that the case could not be tried. At her request , a grand jury declined to indi ct Wesley, and the charges were dismissed. Nearly a year la ter, on February 15, 2010, an ad ministrative hearing officer summarily reversed Campbell’s fi nding of substantiated abuse.No. 13-5960 Wesley v. Campbell, et al. Page 7

Wesley then brought the present civil rights lawsuit against Rigney and others, including Campbell. 1 His claims against Rigney included unlawful arrest, outrage, and negligent investigation. The parties conducted full discov ery, after which Wesley amended his complaint to add a claim for retaliatory arrest, based on the theory that the arrest by Rigney was in retaliation for his decision to appeal Ca mpbell’s finding of substantiated abuse.
Although she had not filed a motion to dismi ss during the litigation’ s initial phase, and although discovery was by this poi nt complete, Rigney moved to dismiss the amended complaint pursuant to Rule 12(b)(6). The di strict court granted the motion with regard to the false arrest, outrage, and negligent investigation claims, findi ng that probable cause supported the arrest and that Rigney was qualifiedly immune in any event. Wesley v. Rigney , 913 F. Supp. 2d 313, 321 (E.D. Ky. 2012). Rigney had not sought qualified immunity on the retaliato ry-arrest claim, and the district court allowed that claim to pr oceed. Soon after, Rigney moved for summary judgment on the retaliatory arrest claim, th is time asserting qualified immunity. In an unpublished opinion, the district co urt granted the motion, again fi nding that the arrest was supported by probable cause. Wesley v. Rigney , CIV.A. 10-51-DLB-JGW, 2013 WL 3107503 (E.D. Ky. June 18, 2013). Wesley now appeals both orders.

II. DISCUSSION
Both decisions by the district court turn on essentially the same legal question: whether J.S.’s uncorroborated allegations created probable cause for Wesley’s arrest. If the arrest was supported by probable cause, then Rigney would be entitled to qualified immunity. If not, then qualified immunity was inapprop riate and both decisi ons must be reversed. Although this common question is of considerable importance, th e district court’s two decisions occurred in different procedural postures, and we therefore address them separately.

A. Rule 12 dismissal of wrongful arrest claim
The district court dismissed Wesley’s false- arrest claim under Rule 12(b)(6). To survive dismissal on that basis, the plai ntiff must “allege[] facts that ‘state a claim to relief that is

1 The district court dismisse d the claims against defend ants other than Rigney. Wesley v. Campbell , CIV.A. 10-51-DLB, 2010 WL 3120204 (E.D. Ky. Aug. 5, 2010). Wesley does not appeal that decision.No. 13-5960 Wesley v. Campbell, et al. Page 8

plausible on its face’ and that, if accepted as true, are sufficient to ‘raise a right to relief above the speculative level.’” Handy-Clay v. City of Memphis, Tenn. , 695 F.3d 531, 538 (6th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570 (2007)). Plaintiffs need not meet a “probability requirement,” although they mu st show “more than a sh eer possibility that a defendant has acted unlawfully.” Rondigo, L.L.C. v. Twp. of Richmond , 641 F.3d 673, 680 (6th Cir. 2011) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). In ruling on the issue, a district court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v.
Treesh , 487 F.3d 471, 476 (6th Cir. 2007). “The defe ndant has the burden of showing that the plaintiff has failed to state a claim for relief,” id. (citing Carver v. Bunch , 946 F.2d 451, 454-55 (6th Cir. 1991)), and dismissal on this basis is reviewed de novo

. Golden v. City of Columbus , 404 F.3d 950, 958 (6th Cir. 2005).
Before proceeding to the merits of the moti on to dismiss, we note a critical threshold error in the district court’s opin ion. Instead of the “plausibility” standard our precedent clearly requires, the district court improperly held Wesl ey to a novel and significantly higher standard. The district court determined—indeed, emphasi zed—that Wesley was required to make “a
substantialshowing that the defendant stated a delib erate falsehood or showed reckless disregard
for the truth” in order to survive Rule 12 dismissal. Wesley , 913 F. Supp. 2d at 322 (emphasis in original). Such a “substantial” pleading burden at the Rule 12 stage is plainly inappropriate in light of Iqbaland Twombly —cases that the district court cite d but failed to apply—as well as this circuit’s settled precedent.
The district court’s error appare ntly stems from its reliance on Vakilian v. Shaw , 335 F.3d 509, 517 (6th Cir. 2003), a case that does speak of the “substantial showing” plaintiffs must
make when faced with dismissal. Vakilian , however, is a summary judgment case, as is every other case cited by the district court in suppor t of its “substantial showing” standard. See Peet v. City of Detroit , 502 F.3d 557, 570 (6th Cir. 2007) (Hol schuh, J., concurring in part and dissenting in part) (citing Vakilian at summary judgment phase); Ahlers v. Schebil , 188 F.3d 365 (6th Cir. 1999) (reviewing gr ant of summary judgment); Butts v. City of Bowling Green , 374 F. Supp. 2d 532 (W.D. Ky. 2005) (deciding motion for summary judgment); Scott v. Kelley , 2012No. 13-5960 Wesley v. Campbell, et al. Page 9

WL 479896 (E.D. Ky. Feb. 14, 2012) (same). Other than the district c ourt’s own decision, no published opinion within the Si xth Circuit has ever imported Vakilian ’s “substantial showing” language into the Rule 12 context.
At oral argument before this court, Rigney conceded that Vakilian ’s “substantial showing” standard was inappropriate at the Rule 12(b)(6) stage. We agree. Moreover, review of the pleadings and applicable case law leaves us convinced that Wesley has satisfied his initial pleading burden.
The district court dismissed Wesley’s false arrest claim on qualified-immunity grounds. To review that decision, we apply th is circuit’s “two-tiered inquiry.” Martin v. City of Broadview Heights , 712 F.3d 951, 957 (6th Cir. 2013) (citing Austin v. Redford Twp. Police Dep’t , 690 F.3d 490, 496 (6th Cir. 2012)). “The first step is to determine [whether] the facts alleged make out a violation of a constitutional right.” Id. In this case, the right involves
freedom from arrest in the absenc e of probable cause. If the plaintiff has s hown a violation of a constitutional right, th en “[t]he second [step] is to ask if the right at issue was ‘clearly
established’ when the event occurred such that a reasonable officer w ould have known that his
conduct violated it.” Id. We have held that in the context of an officer’s application for an arrest warrant from a neutral magistrate , the officer violates clearly established law when he makes
material omissions that are “deliberate . . . or show[ ] reckless disregard for the truth.” Gregory v. City of Louisville , 444 F.3d 725, 758 (6th Cir. 2006); accord Vakilian , 335 F.3d at 517. Both inquiries must be resolved in Wesley ’s favor for the claim to proceed. See Austin v. Redford Twp. Police Dept. , 690 F.3d 490, 496 (6th Cir. 2012) (citing Saucier v. Katz , 455 U.S. 194, 201 (2001)).
To show in response to a motion to dismiss that the arrest was wrongful, Wesley must plausibly allege that it was unsupported by probable cause. See Thacker v. City of Columbus , 328 F.3d 244, 255 (6th Cir. 2003). An officer possesse s probable cause when, at the moment the officer seeks the arrest, “the facts and circumstances within [the officer’s] knowledge and of which [she] had reasonably trustworthy informati on [are] sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing an offense.” Beck v. State of
Ohio , 379 U.S. 89, 91 (1964). A probable cause determination is based on the “totality of theNo. 13-5960 Wesley v. Campbell, et al. Page 10

circumstances,” and must take account of “both the inculpatory and exculpatory evidence.”
Gardenhire v. Schubert , 205 F.3d 303, 318 (6th Cir. 2000) (emphasis in original); accord Estate of Dietrich v. Burrows , 167 F.3d 1007, 1012 (6th Cir. 1999). Although precedent “does not mandate that law enforcement operatives should conduct quasi-trials as a necessary predicate to” arrest, Painter v. Robertson , 185 F.3d 557, 571 n.21 (6th Cir. 1999), an officer “cannot simply turn a blind eye” toward evidence favorable to the accused, Ahlers , 188 F.3d at 372, or “ignore information which becomes available in the course of routine investigations.” Fridley v. Horrighs , 291 F.3d 867, 873 (6th Cir. 2002).
Treating J.S.’s allegations as statements ba sed on first-hand obser vation does not resolve the dilemma here. Some of our cases adopt the rule that “[a]n eyewitn ess identification will constitute sufficient probable cause” because eyew itness observations are “generally entitled to a presumption of reliability and veracity.” Ahlers , 188 F.3d at 370; United States v. Harness , 453 F.3d 752, 754 (6th Cir. 2006). However, other cas es take the position that an eyewitness’s “mere allegation” may create reasonable suspic ion justifying an inve stigative stop under Terry v.
Ohio , 392 U.S. 1 (1968), but falls short of creati ng probable cause absent some corroborating evidence of wrongdoing. See Gardenhire , 205 F.3d at 317 (“Consider the following situation: a woman flags down a police officer and points ou t a Porsche being driven by a young man, which
the woman claims is her car and which has beenstolen by the man. Would the officer have probable cause to arrest the Porsche’s dr iver at that point? We think not.”); Radvansky v. City of
Olmsted Falls , 395 F.3d 291, 305 (6th Cir. 2005) (“[A] mere allegation [of criminal behavior], while possibly justifying a brief investigatory detention, is insufficient by itself to establish probable cause that a crime had been committed.”).
Although there is some tension between these cas es, we need not resolve it here because,
even under the Ahlers line of cases, J.S.’s uncorroborated al legations were legally insufficient to create probable cause. While adopting a presump tion of reliability for eyewitness allegations, those cases also contain an important limiting factor: Probable cause is created only by eyewitness allegations that are “ reasonably trustworthy ,” Logsdon v. Hains , 492 F.3d 334, 342 (6th Cir. 2007) (quoting Beck , 379 U.S. at 91) (emphasis adde d), and thus probable cause does

not exist where “there is an apparent reason for the officer to believe that the eyewitness wasNo. 13-5960 Wesley v. Campbell, et al. Page 11

lying, did not accurately describe what he had s een, or was in some fashion mistaken regarding
his recollection.” Ahlers , 188 F.3d at 370 (internal quotation ma rks omitted). Put another way, the presumption of veracity app lies only where the witness is “s omeone with respect to whom
there is no apparent reason to question the person’s reliability.” Logsdon , 492 F.3d at 343 (emphasis added).

Here, as the district co urt noted, probable cause for Wesley’s arrest was “based solely on [J.S.]’s statements.” Wesley , 913 F.Supp.2d at 321. Hence, Wesley’s complaint stated a claim for false arrest under Rule 12(b)(6) as long as he alleged facts allowing th e fact-finder to infer some “apparent reason to question [J.S.]’s reliability.” Logsdon , 492 F.3d at 343.
Wesley’s complaint meets that burden. It contains the following factual allegations bearing on J.S.’s reliability as a witness: (1) J.S. was a young ch ild; (2) Wesley’s office (where the alleged abuse occurred) was located at the center of the school’s “admi nistrative hub,” within the line of sight of other adul t staff members; (3) J.S.’s a llegations about the abuse were inconsistent; (4) J.S. suffered from a hist ory of serious psychological and emotional disturbances; (5) Rigney required J.S. to under go a medical examination and that examination
showed no evidence consistent with his allegations of se xual abuse; and (6) Rigney’s investigation failed to uncover a ny evidence corroborating any aspect of the abuse J.S. alleged. Taken together, the “totality of the[se] circumstances,” Gardenhire , 205 F.3d at 318, raises
doubts about J.S.’s reliabili ty that are clearly “above the speculative level,” Twombly , 550 U.S. at 555. We discuss these factual allegations in turn.
First, like other circuits, we have expre ssed serious concern about basing probable cause solely on the uncor roborated allegati ons of a child. See, e.g., United States v. Shaw , 464 F.3d 615, 624 (6th Cir. 2006); Stoot v. City of Everett , 582 F.3d 910, 919

‒ 20 (9th Cir. 2009); Cortez v. McCauley , 478 F.3d 1108, 1116 (10th Cir. 2007). In Shaw , we held that a young child’s uncorroborated hearsay alle gations were too unreliable to form the basis for probable cause. 464 F.3d at 624. Although Shaw involved hearsay allegations (rather than direct allegations, as is the case here), its underlying reliab ility rationale remains relevant. See Diana Younts, Evaluating and Admitting Expert Opinion Tes timony in Child Sexual Abuse Prosecutions , 41 Duke L.J. 691, 697 (1991) (“[S]tudies examin ing children’s suggestibility have foundNo. 13-5960 Wesley v. Campbell, et al. Page 12

children to be prone to conforming their storie s to the beliefs of th e questioning adult.”), quoted
in United States v. LeBlanc , 45 F. App’x 393, 399 n.1 (6th Cir. 2002). In Stoot , the Ninth Circuit correctly read Shaw to reflect concerns about alluncorroborated allegatio ns by children, not just those involving hearsay. 582 F.3d at 922.
Indeed, it appears that no fe deral court of appeals has ev er found probable cause based on a child’s allegations absent some other evidence to corroborate the child’ s story. The district court cited two cases for a contrary rule, Lowe v. Aldridge , 958 F.2d 1565 (11th Cir. 1992), and Gerald M. v. Conneely , 858 F.2d 378 (7th Cir. 1988), but in both of those cases, the children’s allegations actually enjoyed subs tantial independe nt corroboration. 2 In Shaw , we conducted a survey of cases basing probable cause in part on children’s allegations and likewise found, in each instance, “independent evidence corroborating the children’s statements.” 3 464 F.3d at
624

‒ 26. Moreover, our independent research has notuncovered a contrary result from another circuit. Indeed, some cases have expressed heightenedconcerns about the reliability of childwitnesses’ allegations whe n, as here, there are other indicia of unr eliability. See, e.g. , Shaw , 464 F.3d at 624 (holding that child’s young age, co mbined with hearsay nature of statement,
made statement insufficient to create probable cause); Stoot , 582 F.3d at 919

‒ 20 (holding that child’s age, when combined with inconsistent statements and confused identifications, rendered allegations too unreliable to crea te probable cause). We are, of course, all too aware of the difficulties facing police investigat ions into child sexual abuse. We recognize that a childvictim’s testimony often plays an important role in pr osecuting the perpetrato rs of this serious and disturbing crime. Nevertheless, we conclude that J.S.’s young age is a factor bearing on the reliability of his accusations and that Rigney (and the district court) should have given it appropriate weight.

2 In Lowe , the child’s accusations were corroborated with medical evidence showing vaginal injury “consistent with her account of abuse,” as well as nearly-identical abuse allegations from two other children. 958 F.2d at 1568. In Gerald M. , the officer’s decision to arrest two minor suspects was supported by both the minors’ admitted involvement in the wrongdoing and their ability to lead the officer to the location of the property they had stolen and abandoned. 858 F.2d at 380. Public safety concerns also supported the arrest in Gerald M. , because an angry crowd had formed outsi de the minors’ home and the officer wa s “afraid for the children’s safety.” Id. 3 The Shaw court examined Rankin v. Evans , 133 F.3d 1425, 1440–41 (11th Cir. 1998); Marx v. Gumbinner , 905 F.2d 1503, 1507 (11th Cir. 1990); Myers v. Morris , 810 F.2d 1437, 1456 (8th Cir. 1987); and Easton v. City of Boulder , 776 F.2d 1441, 1450 (10th Cir. 1985). In each of those cases, the Shaw court found other significant evidence corroborating the child’s allegations. 464 F.3d at 624.No. 13-5960 Wesley v. Campbell, et al. Page 13

Second, we note that the implausibility of a witness’s accusations is also germane to determining the existence of probable cause. Gardenhire , 205 F.3d at 315. When a witness’s allegations are unlikely, it suggests that he or sh e may be “in some fash ion mistaken regarding
his recollection.” Ahlers , 188 F.3d at 370 (internal quotation marks omitted); see Peet , 502 F.3d at 573 (Holschuh, D.J., concurring in part and di ssenting in part) (“[T]h e unlikely conduct of a
defendant is a factor to consider in the dete rmination of whether a police officer had probable cause.”).
Without question, J.S.’s allegations against We sley were facially im plausible. According to Wesley’s complaint, “J.S. claimed . . . th at on multiple occasions over a one year period, Plaintiff had anally sodomized hi m while they were in Plaintiff’ s office.” Wesley alleged that this office was in an extremely well-traveled hallw ay at the center of th e school’s “administrative hub,” located between the faculty mailroom and th e principal’s office and directly facing the school secretary’s desk. Wesley has alleged that Rigney was awar e (or should have been aware) that Wesley’s office door was open whenever he me t with a student and that multiple school staff members had a direct line of sight into Wesley’s office. Taken as true, these facts show that it
would have been difficult for the severe sexual a buse J.S. described to continue for so long
undetected. 4

The complaint also alleges that J.S. struggl ed unsuccessfully to tell a consistent story with regard to the details, seve rity, and duration of the sexual a buse he endured. Specifically, in the first telling, J.S. accused Wesley of a single ac t of over-the-clothes touching. Six days later, this story had escalated to repeated anal sodom y, occurring multiple times over the course of a

year.
A “child’s inconsistent identifications cast doubt on her reliability.” Ollis , 810 F.2d 202.
As the Ninth Circuit concluded in Stoot , a child’s allegations of sexual abuse failed to establish

4 The district court agreed that Wesley’s allegations “show that it would be more difficult to commit the alleged sexual abuse.” 913 F. Supp. 2d at 323. It did not consider this fact relevant to probable cause, however, because Wesley did not show “that it would have been entirely impossible for the alleged abuse to have occurred.” Id. (emphasis added). This explanation plainly misstated Wesley’s burden. He did not need to prove that J.S.’s allegations were “entirely impossible,” but only to make a plausible showing that they were “in some way untruthful or unreliable.” Ahlers , 188 F.3d at 371 (emphasis added). Even if J.S.’s story was not objectively impossible as such, a proper probable cause analysis would be required to take its implausibility into account as a factor tending —in this case, strongly tending—to undermine reliability.No. 13-5960 Wesley v. Campbell, et al. Page 14

probable cause when she “changed her answers at several points during th e interview.” 582 F.3d at 920. Conversely, the w itness’s credibility in Ahlers was bolstered by the fact that she made consistent statements about the alleged sexual assa ult each of the three ti mes she was interviewed by officers. 188 F.3d at 371. Alth ough it is true that an eyewitness’s allega tions need not be perfectly consistent in order to establish probable cause, see, e.g. , United States v. Trujillo , 376 F.3d 593, 604 (6th Cir. 2004), we conclude that J.S.’s inc onsistent stories should have suggested to Rigney that he was unreliable.
Similarly, J.S.’s history of psychological prob lems supported an inference that he was a less reliable witness than a psychologically healthy child. Wesley has alleged that, at the time Rigney sought his arrest, she was aware of J.S. ’s “severe mental and emotional problems”— problems that included violent fant asies and suicidal impulses and th at had previously led to his psychiatric hospitalization for at least two weeks. Clearly, “mental illness can indeed be relevant to a witness’s credibility.” Boggs v. Collins , 226 F.3d 728, 742 (6th Cir. 2000). Mental illness also bears more heavily on credibility when, as in J.S.’s case, “the witness suffered from the
condition at the time of th e events” he described. Id.

Furthermore, the results of J.S.’s medical examination, which showed no evidence of anal sodomy or other abuse-rela ted injury, also undermine Ahlers ’s presumption of veracity. “Such ‘negative’ or ‘inconclusive’ results . . . may be exculpatory even where they do not provide definitive evidence on a particular issue,” becaus e they “‘demonstrate that a number of factors
which could link the defendant to the crime do not.’” Simmons v. Beard , 590 F.3d 223, 237 (3d Cir. 2009) (quoting Patler v. Slayton , 503 F.2d 472, 479 (4th Cir. 1974)).
It follows that the district court was too quick to dismiss the negative medical exam,
based on a rationale that the re sults of the exam had no beari ng on probable cause because “a victim of sexual abuse often presents no injuries upon physical examination.” Wesley , 913 F. Supp. 2d at 326 (citing John E.B. Myers, Expert Testimony in Child Sexual Abuse Litigation: Consensus and Confusion , 14 U.C. Davis J. Juv. L. & Pol'y 1, 20 (2010)). The journal article cited by the district court also no tes that anal penetration “may or may not cause injury,” and that “[c]ontroversy exists” regarding the extent of injuries it is likely to cause. Id. at 20 n.70. Other studies suggest comparatively higher rates of physical injury ; one indicates thatNo. 13-5960 Wesley v. Campbell, et al. Page 15

among child victims of anal pene tration, 64 percent of girls a nd 34 percent of boys will show “positive findings suggestive of ano-genital injury.” Risa N. Claytor et al., Evaluating Child
Sexual Abuse: Observations Regarding Ano-genital Injury , 28 Clinical Pediatrics 419 (1989).
To the extent that doubts exist regarding whether the medical ex amination is probative, those questions must be resolved in Wesley’s favor an d the district court erre d in refusing to do so.
Finally, Rigney’s inability to uncover any evid ence corroborating J.S.’s story (despite her efforts to do so) further undermines the allegati on’s presumed reliabilit y. “In cases involving very young child victims, the courts have repeat edly emphasized the need for some evidence in
addition to the statements of the victim to corroborate the allegations and establish probable
cause.” Stoot , 582 F.3d at 920 (citing Shaw , 464 F.3d at 624). In Shaw , for example, we declined to find probabl e cause where the police failed to “m a[k]e any effort whatsoever to corroborate the [witness’s hearsay] allegations before taking [the defendant] into custody.”
Shaw , 464 F.3d at 625. In this case, Rigney did make an effort to investigate J.S.’s story, but found “no information from [the people she intervie wed] other than [that] Plaintiff had always acted professionally and appropriately.”
For the reasons explained above, we conclude that Wesley plausibly alleged that Rigney effected his arrest without probable cause. Take n as true, Wesley’s alle gations also plausibly show that Rigney is not entitle d to qualified immunity, because her application for an arrest
warrant contained omissions that we re “deliberate . . . or showed reckless disregard for the truth”
and were “material to the fi nding of probable cause.” Gregory , 444 F.3d at 758; accord
Vakilian , 335 F.3d at 517.

As a threshold matter, it seems clear that Ri gney’s decision to withhol d evidence of J.S.’s unreliability was material, because it is clearly esta blished that witness allegations fail to sustain probable cause when there is “apparent reas on to question the pers on’s reliability.” Logsdon , 492 F.3d at 343. If the magi strate who issued the arrest warra nt had known thatthere were, in fact, several “apparent reason[s] to question” J. S.’s reliability, precedent would have precluded a finding of probable cause, and the wa rrant would not have issued.
In addition, Rigney’s omissions demonstrate “deliberate[ness]” or a “reckless disregard for the truth,” given that any reasonable officer would have recognized the importance of J.S.’sNo. 13-5960 Wesley v. Campbell, et al. Page 16

reliability on the question of probable cause. Put another way, any reasonable officer would have known that the gaps in J.S.’s credibility w ould be “the kind of thin g the judge would wish
to know.” See Peet , 502 F.3d at 570 n.3 (Holschuh, J., concu rring in part and dissenting in part) (quoting Wilson v. Russo , 212 F.3d 781, 788 (3d Cir. 2000)). Hence, qualified immunity was inappropriate, because it is clearly established th at “[p]olice officers cannot, in good faith, rely on a judicial determination of probable cause when that determination was premised on an officer’s own material misrepresentations to the court.” Gregory , 444 F.3d at 758 (citing Yancey v. Carroll Cnty. , 876 F.2d 1238, 1243 (6th Cir. 1989)).
Moreover, it is generally inappr opriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity. A lthough an officer’s “entitle[ment] to qualified immunity is a threshold question to be resolved at the earliest possible point,” Vakilian , 335 F.3d at 516 (citing Harlow v. Fitzgerald , 457 U.S. 800, 817 (1982)), that point is usually summary judgment and not dismissal under Rule 12. See Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Village Sch. Dist. , 428 F.3d 223, 235 (6th Cir. 2005) (Sutton, J., concurring) (observing that the fact-intensive nature of the applicable tests make it “difficult for a defendant to claim qualified immunity on the pleadings before discovery ” (emphasis in original)); see also Jacobs v. City of Chicago , 215 F.3d 758, 775 (7th Cir. 2000) (Eas terbrook, J., concurring) (“Rule 12(b)(6) is a mismatch for immunity and al most always a bad ground of dismissal.”); Chesser v. Sparks , 248 F.3d 1117, 1121 (11th Cir. 2001) (“[Q]ualifie d immunity is typically addressed at the summary judgment stage of the case.”); Grose v. Caruso , 284 F. App’x 279, 283 (6th Cir. 2008) (“[T]he standard for a 12(b)(6) motion is whether the allegations, if taken as true, could state a claim upon which relief may be granted, [and] dismissal of Appellants on the basis of qualified immunity is premature.”). Unsurprisi ngly, each of the qualifie d-immunity cases cited by the district court involved summary judgment and not Rule 12(b)(6) dismissal. Additionally, to the extent that the “burdens of discovery” ev er weigh in favor of deciding qualified immunity at the motion-to-dismiss stage, see Iqbal , 556 U.S. at 672, that conc ern was irrelevant here because discovery was complete when Rigney moved for dismissal under Rule 12(b)(6). Wesley , 913 F. Supp. 2d at 319–20.No. 13-5960 Wesley v. Campbell, et al. Page 17

Nor do we find persuasive Rigney’s arguments to the contrary. Chiefly, she argues that J.S.’s initial allegations created probable cause as a matter of law and that, as a result, she was immune from liability regardless of whether she conducted an adequate investigation (or, indeed, any investigation) prior to seeking a warrant for We sley’s arrest. Although it is true that “[o]nce probable cause is established, an officer is under no duty to i nvestigate further or to look for additional evidence which may exculpate the accused,” Ahlers , 188 F.3d at 371, that rule assumes the existence of probable ca use and, as we have explained above, in this case probable
cause was never establis hed. We conclude that Wesley successfully pl eaded a violation of his clearly established Fourth Amendment right agai nst wrongful arrest a nd that the strength of Wesley’s complaint also requires rejecti on of Rigney’s claim to qualified immunity.
B. Summary judgment on Wesley’s retaliatory arrest claim
Wesley also appeals the district court’s or der granting summary j udgment to Rigney on his retaliatory-arrest claim. The legal basis for this decision is essentially the same as the Rule 12(b)(6) dismissal discussed above: The district court concluded that Rigney possessed probable cause for the arrest and thus granted her motio n for qualified immunity. Unlike its Rule 12 decision, however, this decision by the district court took into account the parties’ extensive discovery. Accordingly, we review that decisi on in light of Rule 56’s legal standard and in
consideration of the evidence produced through discovery.
Summary judgment is appropria te “if the pleadings, the discovery and the disclosure materials on file, and any affidav its ‘show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Burgess v. Fischer , 735 F.3d 462, 471 (6th Cir. 2013) (quoting Fed. R. Civ. P. 56(a) ) (alteration omitted). There is “no genuine
issue for trial where the r ecord ‘taken as a whole could not lead a rational trier of fact to find for the non-moving party.’” Id. (quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In deciding the motion, “the district court must construe the evidence
and draw all reasonable inferences in favor of the nonmoving party.” Hawkins v. AnheuserBusch, Inc. , 517 F.3d 321, 332 (6th Cir. 2008).
A claim for retaliatory arrest requires, at a mi nimum, that the plaint iff make three related showings: “(1) the plaintiff engaged in protected conduct; (2 ) an adverse action was takenNo. 13-5960 Wesley v. Campbell, et al. Page 18

against the plaintiff that would deter a person of ordinary firmne ss from continuing to engage in that conduct; and (3) there is a causal connection between elem ents one and two—that is, the adverse action was motivated at least in pa rt by the plaintiff's protected conduct.” Kennedy v. City of Villa Hills, Ky. , 635 F.3d 210, 217 (6th Cir. 2011) (quoting Thaddeus-X v. Blatter , 175 F.3d. 378, 394 (6th Cir. 1999) ( en banc )). Although we have not resolved “whether lack of probable cause is an element in wrongf ul-arrest claims” in this circuit, id. at 217 n.4, the existence of probable cause is clearly relevant to an officer’s qualified immunity on a claim for retaliatory arrest. See Reichle v. Howards , 132 S. Ct. 2088, 2093

‒ 94 (2012). On the basis of its finding that probable cause existed, then, the district court grante d Rigney’s request for qualified immunity without considering the other elements of a retaliatory arrest.
In our view, the record not only substantiates the claims contained in Wesley’s complaint but also provides further factual grounds that unde rmine the reliability of J.S.’s allegations, principally in the form of contradictory witn ess statements and evidence at odds with those statements, all of which were known—or should have been know n—to Rigney in advance of her application for an arrest warrant. It is well-s ettled that evidence contradicting even part of a witness’s allegations seriously undermines their reliability and can defeat probable cause. See,

e.g., Radvansky , 395 F.3d at 304, 307 (holding that no proba ble cause existed where “undisputed documentary evidence” contradi cted eyewitness’s accusations); Logsdon , 492 F.3d at 338

‒ 39, 342–43 (ruling that no probable cause arose when part of an eyewitness’s accusation of trespass against a protestor was cont radicted by other sources); see also Baptiste v. J.C. Penney, Co. , 147 F.3d 1252, 1259 (10th Cir. 1998) (holding that an eyewitness’s allegation of shoplifting failed to create probable cause because video evidence available to arresting officer contradicted allegations). Even if only part of the witness’ s allegation is demonstrably false, the report as a whole will still lose its presumption of reliability. See Fisher v. Harden , 398 F.3d 837, 843 (6 th Cir. 2005) (noting that if the witness’s factual allegations were proven incorrect in one regard, “[t]his alone would have caused a reas onable officer to question the veracity of the [witness’s] report”).
In this case, the most significant evidence to fa ll into this category re sulted from Rigney’s interviews with Wesley’s former students at Sixt h District School. J.S. alleged that Wesley wasNo. 13-5960 Wesley v. Campbell, et al. Page 19

sexually abusing two other childr en at Sixth District Elementa ry, but Rigney’s investigative efforts to identify those children failed to substan tiate the accusation, as sh e later conceded in her deposition. Her investigation also involved using school records to identify, remove from class, and interview “any child that [Wesle y] had access to.” Each child contradicted J.S.’s allegations and insisted that Wesley did not abuse him or he r. Given that all the interviewees exculpated Wesley of wrongdoing, a reasonable fact-finder coul d view the results of Rigney’s investigation as positive evidence that at least this part of J.S.’s story was un true. Once Rigney was aware that some of J.S.’s allegations were likely false, sh e should have questioned th e veracity of his other
claims. See Fisher , 398 F.3d at 843. Obviously, Ahlers ’s presumption of veracity cannot survive a contradiction of this magnitude.
The record also confirms that J.S.’s allega tions were improbable, both on their face and in light of Rigney’s inve stigation of the alleged crime scene. The school’s administrative area was cramped and crowded, just as Wesley descri bed it, and several adul t staff members had lineof-sight to his office. Other f acts also suggested the improbabil ity of J.S.’s allegations. For example, J.S. alleged that Wesley was nude dur ing the sexual assaults but would leave the door to his office open and unlocked. He also said th at the sodomy occurred while J.S. and Wesley were standing in front of the office’s open, ground floor window. In deposition testimony, Campbell admitted that seeing “the location of Mr . Wesley’s office” “cause[d] [her] . . . concern in regard to [J.S.]’s story,” and the prosecutor who ultimately declined to pursue the case called the office location a “bad fact for the prosecution.” Likewise, J.S. insi sted that both he and Wesley were standing straight up during the sodomy. Given that We sley was a full-grown adult, 5’10” tall, and J.S. a seven-year-old child, this physical arrangement seems completely implausible. But J.S. stuck to this descriptio n even after the CAC interviewer pressed him to change his answer. 5 J.S.’s account also contained at l east one fantastical element—namely, his

5 The full exchange reads as follows: Q: And how were you when he did that [i.e., the sodomy]? Were you standing up? Or sitting down? Or laying down? A: Standing up. (Gets up and demonstrates, standing up.) Standing straight up. Q: And how was Mr. Wesley? A: How was he standing? Q: Was he standing up? Or was he, how was he?No. 13-5960 Wesley v. Campbell, et al. Page 20

claim that his family members were presen t during one of the sodomy episodes. The unlikeliness of these allegations suggests that th ey are not a reliable basis on which to base probable cause.
The record also establishes that Rigne y lacked any evidence corroborating J.S.’s allegations. In her appellate br iefing, Rigney does not claim othe rwise—instead, she insists that no such evidence was needed. She does, however , refer in passing to tw o facts which arguably bolster J.S.’s story: J.S.’s ability to describe de tails of Wesley’s office such as a window and blue
table and the fact that J.S. a nd Wesley had met for counseling appointments in the past. The
district court found that these fact ors bolstered J.S.’s account, but they do not, in fact, constitute meaningful corroboration.
First, J.S.’s ability to describe Wesley’s office plainly fails to corroborate J.S.’s abuse allegations. No party disputes that J.S. attende d counseling sessions in We sley’s office or that
the room contained a blue table and a window. There is no corroborating effect from J.S.’s ability to describe a location that, by all accounts, he should have been able to describe easily. For the same reason, records sh owing regular meetings betw een J.S. and Wesley do not corroborate J.S.’s allegations of abuse. These meetings were not unusual, as Wesley’s job required him to meet with students who, like J.S., pr esented behavioral problems and had, in the past, attempted suicide. Moreover, Wesley’s meetings with J.S. would have provided an opportunity for sexual abuse only if they occurre d out of sight of the school’s many potential witnesses. Rigney’s investigation uncovered noth ing to indicate that this was the case.

The district court identified additional fact ors that it believed bolstered J.S.’s account, including the fact that Wesley purportedly “honk[ed] his car horn and wav[ed]” during the February 5 car trip to the NorthK ey mental health facility and the allegation that he made two
outside-of-school-hours visits to J. S.’s residence—visits that were possibly contrary to school

A: Standing up. Q: He was standing up? Um, was he standing up like standing up straight? Or standing up on the floor? Or standing on a chair? A: He was standing. He was just standing on his legs. Q: How about you? A: Standing on my legs.No. 13-5960 Wesley v. Campbell, et al. Page 21

policy. However, Rigney herself has never claimed that any of th ese factors played any role in her probable-cause determination, and they are entitle d to little or no wei ght, in our view. Even on their own terms, they fail to corroborate J.S.’s allegations.
The record also confirms J.S.’s young age, his history of psychol ogical and behavioral problems, the negative results of his medical exam ination, and the inconsistent stories he told
about the abuse. These factor s suggest that J.S. was unrelia ble and that his uncorroborated allegations were unable to create probable cause.
The district court’s qualified-immunity decision rested solely on its conclusion that probable cause existed for the arrest. However, a triable issue of fact exists regarding both the materiality of facts Rigney omitted from her wa rrant application and whether these omissions demonstrate “deliberate[ness]” or a “reckless disregard for the truth.” Gregory , 444 F.3d at 758;
Vakilian , 335 F.3d at 517. Accordingly, we conclude that the district judge should not have granted summary judgment on the reta liatory-arrest claim on this basis. 6

III. CONCLUSION

For the reasons set above, we REVERSE the district court’s judgment—both the dismissal of Wesley’s wrongful-a rrest claim and the grant of summary judgment on Wesley’s retaliatory-arrest claim—and RE MAND the case to the district court for further proceedings.

6 We express no opinion regarding Wesley’s ability to satisfy the other elements of his retaliatory arrest claim, an issue neither addressed by the district court nor briefed by the parties.