UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

SHAWN WYGANT,

Plaintiff,

Case Number 09-11684-BC

v. Honorable Thomas L. Ludington

MARY STRAND, and MICHIGAN 

DEPARTMENT OF HUMAN SERVICES,

Defendants.

______________________________________ /

OPINION AND ORDER ADOPTING JUDGE BINDER’S REPORT AND

RECOMMENDATION, OVERRULING DEFENDANTS’ OBJECTIONS, OVERRULING

PLAINTIFF’S OBJECTIONS, GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS, AND

RETURNING CASE TO JUDGE BINDER FOR CONTINUED PRETRIAL CASE

MANAGEMENT

In his May 4, 2009 amended complaint, Plaintiff Shawn Wygant asserts claims for violations

of 42 U.S.C. § 1983, the Fourteenth Amendment, and various state laws against Defendants Mary

Strand and the Michigan Department of Human Services (“DHS”). Plaintiff alleges that Defendant

Strand, who is a foster care social worker for Defendant DHS, willfully and maliciously interfered

with his liberty interest in parenting his children, that Strand violated the Equal Protection Clause,

and that Strand breached a host of state common law and statutory obligations to Plaintiff. 

On May 18, 2009, the case was referred to Magistrate Judge Charles E. Binder for pretrial

case management. After Defendants filed their answer in September 2010, Judge Binder issued a

notice directing Defendants to file an initial dispositive motion explaining why they are entitled to

certain affirmative defenses identified in their answer, including qualified immunity, state law tort

immunity, a jurisdictional defense, and a defense based on the statute of limitations. On October

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 Although the motion is identified as a motion to dismiss under Rule 12(b)(6), it must be

construed as a Rule 12(c) motion for judgment on the pleadings because Defendants have already

filed an answer to Plaintiff’s complaint. See Fed. R. Civ. P. 12(b). The standard of review is the

same. See Lindsay v. Yates, 498 F.3d 434, 437 & n.5 (6th Cir. 2007). 

2

 It appears that the first set of objections were apparently based on a misreading of Judge

Binder’s report. They will not be considered in light of the amended objections. 

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8, 2010, Defendants filed a motion for judgment on the pleadings. Fed. R. Civ. P. 12(c).1

Defendants contend that Plaintiff’s constitutional claims against DHS should be dismissed because

it is entitled to Eleventh Amendment immunity; Plaintiff’s constitutional claims are barred by the

applicable three-year statute of limitations; Plaintiff’s due process and equal protection claims do

not state a claim upon which relief can be granted; Plaintiff’s state law claims against Defendant

Strand fail as a matter of law; Defendant Strand is entitled to qualified immunity as to Plaintiff’s

constitutional claims; and Plaintiff’s state law claims against Strand are barred by state law

immunity. 

On January 18, 2011, Judge Binder issued a report recommending that the Court grant in part

and deny in part Defendants’ motion for judgment on the pleadings [Dkt. # 17]. Judge Binder

recommended granting Defendants’ motion with respect to all claims against DHS and the state-law

claims and Equal Protection Clause claims against Strand. Judge Binder recommended denying the

motion with respect to Plaintiff’s Due Process claim against Strand for violation of Plaintiff’s right

to parent. Defendants filed an amended objection on January 31, 2011, challenging Judge Binder’s

recommendations with respect to Plaintiff’s due process right to parent claim and the statute of

limitations issues, suggesting that Judge Binder should have dismissed Plaintiff’s complaint because

he did not respond to Defendants’ motion, and raising a jurisdictional issue for the first time.2

Plaintiff filed objections on February 22, 2011, as well as additional exhibits on March 15, 2011 and

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June 6, 2011. Plaintiff objects to Judge Binder’s conclusions with respect to the immunity issues

and the merits of Plaintiff’s state law claims. Neither party filed a response or reply to the other

party’s objections.

The district court will make a “de novo determination of those portions of the report . . . to

which objection is made.” 28 U.S.C. § 636(b)(1); see also Thomas v. Arn, 474 U.S. 140, 149–52

(1985). A party must file specific objections to the report or the party’s right to further review will

be waived. Id. Moreover, “only those specific objections to the magistrate’s report made to the

district court will be preserved for appellate review; making some objections but failing to raise

others will not preserve all the objections a party may have.” Smith v. Detroit Fed’n of Teachers

Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987) (citations omitted). 

For the reasons explained below, Judge Binder’s report and recommendations will be

adopted, both parties objections will be overruled, Defendants’ motion for judgment on the

pleadings will be granted in part and denied in part, and the case will be returned to Judge Binder

for the continuation of pretrial proceedings. 

I.

Judge Binder summarized the facts alleged in the complaint in his report. 

Plaintiff alleges that he was married to Susan Wygant (Susan) for ten years

and that he is the biological father of four minor children who were born during the

course [of] that marriage. Plaintiff and Susan were divorced on July 23, 2003, by a

judgment granting Plaintiff and Susan joint legal and physical custody of the four

children. Plaintiff alleges that for four months commencing in November 2002,

Susan influenced the children into fabricating stories of sexual misconduct by

Plaintiff and showed the children sexually explicit material as part of the process.

Plaintiff alleges that Susan was diagnosed with borderline personality disorder and

factitious disorder by proxy and that the allegations of sexual abuse were

investigated and found to be unsubstantiated. A Child Protective Services (“CPS”)

investigation that began in August 2003 concluded that there was a preponderance

of evidence of emotional harm to the children by Susan and a failure to protect the

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children from Susan by Plaintiff. As a result, a petition for child abuse/neglect was

filed in Oakland County and, after a preliminary hearing, the children were made

temporary wards of the court and Susan’s mother, Sally Peck, was appointed as a

foster care parent of the children. 

Plaintiff further alleges that Defendant Mary Strand, a DHS employee, was

assigned to supervise Plaintiff’s children’s case and that, per her recommendation,

Plaintiff was allowed only limited and supervised visitation with his children. The

visitation was supervised by another DHS worker, Elizabeth (Liz) Davis. After one

of these supervised visitations held on December 10, 2003, Susan called Defendant

Strand and Susan reported that one of the children had been sexually abused by

Plaintiff during the supervised visit. Plaintiff avers that Defendant Strand should

have known the allegation of sexual abuse was unfounded since Plaintiff was never

alone with the children but was supervised by Ms. Davis the entire time. Instead of

remarking on the impossibility of Susan’s complaint, however, Plaintiff alleges that

Defendant Strand “made a false report of child abuse against Shawn [Plaintiff] by

filling out a DHS 3200 report stating that he sexually abused J.W. during the visit

supervised by DHS worker Liz Davis.” Although Susan had been the “referral

source” for the investigation into the December 10, 2003, visitation, Defendant

Strand’s report covering the December 2003 time period denied that Susan was

involved in any CPS investigation. A CPS investigative summary report dated

August 31, 2004, however, clearly stated that Susan had been the referral source. 

Plaintiff further avers that Defendant Strand testified in May 2006 that she

was statutorily required to keep the referring source confidential. Plaintiff notes that

the Michigan statute, Mich. Comp. Laws § 722.625, only extends confidentiality

protection to those who acted in good faith, i.e., whether there is reasonable cause

to suspect the abuse has occurred. Since Plaintiff contends that Defendant Strand did

not have any reasonable cause to suspect abuse because Plaintiff was never alone

with his children, he further contends that Defendant Strand was not entitled to keep

the source confidential. 

Plaintiff also alleges that Defendant Strand’s report was misleading in

describing the reported sexual abuse as “inappropriate behavior,” which he notes

could conceivably occur during supervised visitation, as opposed to sexual abuse

which could not have occurred during the supervised visitation. Plaintiff further

avers that Defendant Strand purposefully failed to disclose that the CPS investigation

report concluded that there was no evidence of sexual abuse. Instead, Plaintiff

contends that Defendant Strand used the phrase that the CPS “complaint is not

supported by a preponderance of the evidence,” which would give the complaint a

higher level of credibility than if it were found to be without evidence entirely.

Plaintiff notes that these phrases are terms of art indicating different categories of

misconduct and caseworker responsibilities. 

Plaintiff avers that the Oakland County Circuit Court entered an order giving

Defendant Strand “authority to decide to let Susan move back in with the minor

children” and that she exercised that authority and permitted Susan to move in with

the children in early July 2004. At a hearing held on July 9, 2004, the court

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appointed a psychologist, Dr. Tracy Stulberg, to counsel Plaintiff and Susan pursuant

to the parent-agency agreement. During this time, Plaintiff’s visitation with his

children was unsupervised but was limited to daytime hours. In early August 2004,

Susan filed for a personal protection order to prevent Plaintiff from attending the

children’s swimming classes. On August 17, 2004, a hearing was held and the

request for a personal protection order was denied. After the hearing, Dr. Stulberg,

Defendant Strand, Plaintiff and Susan negotiated a parenting time agreement that

was to begin on August 23, 2004. Plaintiff avers that on August 25, 2004, Defendant

Strand “rescinded the parenting time agreement and forced the children to only have

3 hours once a week parenting time” despite the fact that Plaintiff had to travel from

Oscoda, Michigan, to Farmington Hills, Michigan (approximately 420 miles round

trip) to visit the children. Plaintiff further alleges that Susan forced one of the

children to claim to have been sexually assaulted by Plaintiff at a meeting with Dr.

Stulberg on August 31, 2004. 

Plaintiff avers that Dr. Stulberg called Defendant Strand and told her that “the

children were being coached by Susan to say that they were sexually abused and that

she wanted to bring it to Mary’s attention.” Plaintiff contends that Defendant Strand

falsely reported to CPS that the children were being sexually abused, that she

suspended Plaintiff’s parenting time, and that she referred the children to be

interviewed “for sexual abuse by CPS worker Alison Scofield on September 14,

2004.” Plaintiff alleges that the “CPS investigative report denied the referall [sic]

based upon no evidence and the fact that Dr. Stulberg told the CPS worker that she

believed the children were being coached by Susan.” 

Plaintiff indicates that although he had completed a parenting skills class with

Catholic Social Services on September 24, 2004, Defendant Strand required both

Plaintiff and Susan to complete a parenting skills class before the permanency and

planning hearing set for October 12, 2004. After the hearing, Plaintiff was given

visitation for three hours per week. 

In October 2004, Defendant Strand asked Dr. Stulberg to report that the

children were being sexually abused by Plaintiff so that she could make sure that

Plaintiff’s parental rights would be terminated. When Dr. Stulberg refused to make

such an allegation, Defendant Strand fired Dr. Stulberg. Plaintiff supports these

averments with a quotation from Dr. Stulberg’s testimony given in a deposition taken

in October 2007 wherein she stated:

There is no way that family therapy should have stopped. Mary

Strand just cancelled it and money was not the issue. Mary said: “I

will not be sending them back to you. I am terminating therapy with

you.” This was right after she wanted me to write that [Plaintiff] was

a sex offender and that he had molested [the children]. And that if I

had said that she would have made sure that [Plaintiff’s] rights were

terminated. I made it very clear to her that we don’t work that way

and Strand got pissed. Any progress that was starting to be made,

while I was holding [Plaintiff] accountable, Susan would then go

back and complain to Strand because it wasn’t working her way. This

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had nothing to do with [Plaintiff’s] progress in family therapy. This

is not why the contract was terminated. It was because I refused to do

something that was unethical.

Plaintiff contends Defendant Strand falsely testified in May 2006 that Dr. Stulberg

had been terminated because Plaintiff was not making progress. 

Plaintiff contends Defendant Strand’s actions caused “deprivation of their

liberty, interests and civil rights to a parent-child relationship for over 34

months . . . .” The 34-month period referred to appears to cover the events that

occurred between August 2003 and May 2006. In addition, Plaintiff also alleges that

Defendant Strand’s actions caused his parental rights to be terminated in May 2006.

Plaintiff seeks monetary damages and any other relief deemed appropriate by the

Court. 

[Dkt. # 17] (citations and footnotes omitted). 

II.

Defendants first object to Judge Binder’s conclusion that Plaintiff’s complaint states a claim

for violation of his substantive due process rights as a parent. The Fourteenth Amendment provides

that no state shall “deprive any person of life, liberty, or property without due process of law.” U.S.

Const. amend 14. The Supreme Court has “long recognized that the Amendment’s Due Process

Clause, like its Fifth Amendment counterpart, ‘guarantees more than fair process.’ The Clause also

includes a substantive component that ‘provides heightened protection against government

interference with certain fundamental rights and liberty interests.’ ” Troxel v. Granville, 530 U.S.

57, 65 (2000) (quoting Washington v. Glucksberg, 521 U.S. 702, 719–20 (1997)). The “interests

of parents in the care, custody, and control of their children” is one of the “fundamental liberty

interests” protected by the substantive component of the Due Process Clause. Troxel, 530 U.S. at

65. “Governmental actions that infringe a fundamental right receive strict scrutiny. Otherwise, they

receive rational-basis review, which requires them only to be ‘rationally related to a legitimate state

interest.’ ” Blau v. Fort Thomas Pub. Sch. Dist., 401 F.3d 381, 393 (6th Cir. 2005) (quoting Seal

v. Morgan, 229 F.3d 567, 574–75 (6th Cir. 2000)). 

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Defendants contend that while Plaintiff’s complaint pleads a procedural due process claim,

Judge Binder erred in concluding that it pleads a substantive due process claim as well. Contrary

to Defendants’ assertion, however, Plaintiff identifies his substantive due process claim as early as

the first paragraph of his amended complaint, where he alleges Defendants interfered with his

protected liberty interest in the parent-child relationship. Pl.’s Amended Compl. ¶ 1 (citing Daily

v. Parker, 152 F.2d 174 (7th Cir. 1946) (concluding children have a right to a relationship with their

father, and a cause of action against any person who damages that relationship)). Moreover,

although the complaint does not use the term “substantive due process,” it relates numerous facts

which put the Defendants on notice that his principal complaint is their alleged interference with his

relationships with his children, and also identifies the alleged interference in his request for

damages. See Pl.’s Amended Compl. Prayer for Relief. Accordingly, the complaint pleads a

substantive due process claim for interference with parental rights. 

Defendants further contend that even if the complaint pleads a substantive due process claim,

Plaintiff does not allege the sort of egregious misconduct that can lead to an actionable due process

claim. See County of Sacramento v. Lewis, 523 U.S. 833, 845–50 (1998). Putting aside Defendants

attempt to raise a new substantive argument in an objection to a report and recommendation,

Plaintiff’s complaint in this case does allege the egregious and arbitrary conduct on the part of a

government official that “‘shocks the conscience’ and violates the ‘decencies of civilized conduct.’”

Id. at 846 (citation omitted). Plaintiff contends that he was the victim of an official who “abus[ed

her] power [and] employ[ed] it as an instrument of oppression.” Id. That is all that is necessary

given the standard of review that is to be applied.

In their second objection, Defendants contend that Judge Binder erred when he concluded

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that Plaintiff’s claims are not barred by the three-year statute of limitations applicable to § 1983

actions in Michigan. See McCune v. City of Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). In

his complaint, Plaintiff alleged that Defendant Strand engaged in a pattern of oppressive conduct

beginning in 2003, and continuing through May of 2006 in an effort to terminate his parental rights.

The alleged lies and false evidence culminated in a May 2006 state court decision terminating his

rights. Defendant Strand’s continued efforts to remove Plaintiff’s parental rights, which continued

into May 2006, provide a predicate for Plaintiff’s cause of action within the three year period. See

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 628 (2007) superseded by statute on other

grounds Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009). The fact that

Defendant Strand apparently cannot be sued for her testimony at the May 2006 hearing, does not

mean she cannot be held liable for the alleged pattern of wrongful conduct that led to the termination

of Plaintiff’s parental rights in May 2006. 

In their third objection, Defendants contend that Judge Binder should have simply granted

Defendants’ motion to dismiss and dismissed Plaintiff’s complaint with prejudice based on

Plaintiff’s failure to respond to Defendants’ motion. Defendants note that Judge Binder ordered

Plaintiff to respond, twice [Dkt. # 14, 16], and that the Court’s Local Rules also require a response

when a party opposes a motion, E.D. Mich. L.R. 7.1(c)(1). Although Plaintiff should have

responded to the motion to dismiss, and the Court will expect responses that conform to the Local

Rules in the future, dismissing Plaintiff’s complaint with prejudice would have been too harsh a

sanction. Under the circumstances, Judge Binder’s course of action was appropriate. 

Defendants’ final objection asks the Court to consider a new argument that was not raised

in Defendants’ motion to dismiss. Defendants’ suggest that the Court should sua sponte dismiss the

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case under the Rooker-Feldman Doctrine, or based on res judicata or collateral estoppel. See

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity Trust

Co., 263 U.S. 413 (1923). Because that argument was not presented to Judge Binder and Plaintiff

has not briefed it in response to Defendants’ objections, it will not be considered. The Court’s

conclusion with respect to this objection does not foreclose consideration of the Rooker-Feldman

argument by Judge Binder in the future. 

Accordingly, Defendants’ objections are overruled. 

III.

Plaintiff first objects to Judge Binder’s conclusion that DHS is entitled to sovereign or

Eleventh Amendment immunity. As Plaintiff emphasizes, the Eleventh Amendment does not

explicitly bar suits against a state by a citizen of that state. The Eleventh Amendment only prohibits

suits against a state by a citizen of a different state. Nevertheless, the Supreme Court has held that

states are entitled to sovereign immunity, and therefore may not be sued by their own citizens unless

the state consents or Congress specifically abrogates the state’s immunity. Hans v. Louisiana, 134

U.S. 1 (1890). This concept is often referred to as Eleventh Amendment immunity even though the

text of the Eleventh Amendment does not, on its face, appear to be implicated. See Port Authority

Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). As the Court first recognized in Hans,

“the Eleventh Amendment was important not merely for what it said but for what it reflected: a

consensus that the doctrine of sovereign immunity . . . was part of the understood background

against which the Constitution was adopted, and which its judicial provisions did not mean to sweep

away.” Pennsylvania v. Union Gas Co., 491 U.S. 1, 31–32 (1989) (Scalia, J., concurring in part and

dissenting in part). 

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 Plaintiff’s first objection also contains a discussion of the Supreme Court’s decision in

Monell v. Department of Social Services, 436 U.S. 658 (1978), under the heading “gross

negligence.” The discussion focuses on the standards for municipal liability under § 1983. In light

of the Court’s decision with respect to sovereign immunity, it is not necessary to consider municipal

liability. It is, however, unlikely that Plaintiff would be able to demonstrate an unconstitutional

policy or custom. 

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In his first objection, Plaintiff presents a variety of policy arguments questioning the wisdom

of extending the Eleventh Amendment to bar suits against a particular state by a citizen of that state.

After all, reasonable people can, and do, disagree about the wisdom of the Hans decision and its

progeny. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 248–49, 301 (1985) (Brennan, J.,

dissenting) (citing David L. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst

Case, 98 Harv. L. Rev. 61 (1984)). The fact remains, however, that this Court is obligated to follow

the decisions of the United States Supreme Court and the Sixth Circuit Court of Appeals. Those

decisions mandate immunity for DHS. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 98–99 (1984); Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir. 1993). Accordingly, Plaintiff’s first

objection is overruled.3

Plaintiff next objects to Judge Binder’s conclusion that there is no tort for “false swearing

under oath” in Michigan, and even if there were, Strand cannot be sued for the testimony she

provided in court. Plaintiff now contends that his claim for “false swearing under oath” was

intended as an abuse of process claim, and points to a decision from a California court suggesting

that witness immunity “dissolves when the witness has engaged in a tortious course of conduct.”

The objection will be overruled. Plaintiff’s complaint does not identify an abuse of process claim,

and neither the Defendants nor the Court were required to guess at his intentions. Moreover,

Michigan law provides near absolute immunity for witnesses testifying in court. “Falsity or malice

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 Notably, it appears that immunity for social workers under Michigan law is more protective

than the immunity provided by federal law. Social worker immunity under federal law is limited

to situations where the social workers are acting in a judicial or prosecutorial capacity as opposed

to an administrative or investigative capacity. See Rippy ex rel. Rippy v. Hattaway, 270 F.3d 416,

422 (6th Cir. 2001); Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000). Thus, although Strand

is immune under state law, she may not be under federal law. 

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on the part of the witness does not abrogate the privilege.” Maiden v. Rozwood, 597 N.W.2d 817,

830 (Mich. 1999). A California decision to the contrary does not alter the Michigan rule. 

Plaintiff next objects to Judge Binder’s conclusion that all of Plaintiff’s state law claims

against Strand should be dismissed because social workers in Michigan enjoy absolute immunity

from tort liability under Michigan common law. Specifically, Plaintiff contends that Judge Binder

misinterpreted the Michigan Court of Appeals decision in Martin v. Children’s Aid Society, 544

N.W.2d 651 (Mich. Ct. App. 1996). There was no error in Judge Binder’s analysis. After reviewing

Martin and subsequent decisions by the Michigan Court of Appeals, it is apparent that social

workers in Michigan enjoy absolute immunity from suit in state courts based on their participation

in the state court procedures for removing a child from her parents control and terminating parental

rights. Id. at 96–98; see also Beauford v. Lewis, 711 N.W.2d 783, 786 (Mich. Ct. App. 2005);

Thomas v. St. Vincent & Sarah Fisher Cntr., No. 03-73002, 2006 WL 2418974, at *7–9 (E.D. Mich.

Aug. 21, 2006). Immunity for social workers is absolute in situations such as this where the alleged

liability is predicated on the assistance the social worker provided to the probate court charged with

determining whether or not the child should be permitted to remain with his or her parents.4

Accordingly, Plaintiff’s final objection will be overruled. 

IV.

After entry of this opinion and order, the only remaining claim is Plaintiff’s due process

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claim against Defendant Strand for violation of his right to parent. The case remains on referral to

Judge Binder for continued management of pretrial proceedings, including, but not limited to, the

jurisdictional issues raised for the first time in Defendant Strand’s objections. 

Accordingly, it is ORDERED that Judge Binder’s report and recommendation [Dkt. # 17]

is ADOPTED.

It is further ORDERED that Defendants’ objections [Dkt. # 18, 19] are OVERRULED.

It is further ORDERED that Plaintiff’s objections [Dkt. # 24, 25, 29] are OVERRULED.

It is further ORDERED that Defendants’ motion to dismiss [Dkt. # 15] is GRANTED IN

PART AND DENIED IN PART. All claims against DHS are dismissed, and all claims against

Strand are dismissed except for the due process claim brought pursuant to § 1983.

It is further ORDERED that this case is RETURNED to Judge Binder for continued pretrial

case management pursuant to the earlier order of reference [Dkt. # 4].

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: August 8, 2011

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on August 8, 2011. 

s/Tracy A. Jacobs 

TRACY A. JACOBS

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