Wendrow v. Mich. Dep't of Human Servs.

• Decision Date: 07 May 2014
• Docket Number: Case No. 08-14324
• Parties: THAL FLAM WENDROW, et al., Plaintiffs, v. MICHIGAN DEPARTMENT OF HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

THAL FLAM WENDROW, et al., Plaintiffs, v. MICHIGAN DEPARTMENT OF HUMAN SERVICES, et al., Defendants.

Case No. 08-14324

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Date: May 7, 2014

Hon. John Corbett O'Meara

OPINION AND ORDER DENYING

IN PART AND GRANTING IN PART

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the court is Defendants Oakland County, Eric Overall, David Gorcyca, Deborah Carley, and Andrea Dean's ("Defendants") motion for summary judgment, filed January 15, 2014, which has been fully briefed. The court heard oral argument on March 6, 2014, and took the matter under advisement.

BACKGROUND FACTS

On March 30, 2011, the court granted in part and denied in part Defendants' motion for summary judgment. See Docket No. 288. The court also denied motions for reconsideration on March 27, 2012. Docket No. 313. Defendants appealed based on qualified immunity and Plaintiffs cross-appealed. The SixthCircuit affirmed in part and reversed in part. Wendrow v. Michigan Dept. of Human Servs., 534 Fed. Appx. 516 (6^th Cir. 2013). Relevant here, the Sixth Circuit reversed this court's grant of qualified immunity to prosecutors Andrea Dean and Deborah Carley on Plaintiffs' state tort claims. On remand, based upon language in the Sixth Circuit's decision, this court permitted Defendants to file a summary judgment motion challenging the merits of the state tort claims. That motion is now before the court. Having set forth the factual background of this case in previous orders, the court will not repeat it here.

Plaintiff alleges several state claims against Dean and Carley: defamation, invasion of privacy (false light), invasion of privacy (disclosure of private facts), intentional infliction of emotional distress, malicious prosecution, and abuse of process. This court determined that qualified immunity barred these claims because Dean and Carley acted in good faith, based upon their belief that facilitated communication ("FC") was reliable. The Sixth Circuit reversed, finding that "[w]ith respect to the intentional torts that relied upon the use, or misuse, of FC, there is sufficient evidence that Dean and Carley knew or should have known that the procedures that they were using were not within FC protocols for sexual-abuse allegations and that specific safeguards should have been utilized, but were not." Wendrow, 534 Fed. Appx. at 534.

The court further noted that some of the torts - defamation, invasion of privacy - were not based upon the use of FC and, therefore, Dean and Carley's alleged belief in the reliability of FC did not provide a basis for immunity. "Thus, even if we agreed with the district court's determination that the prosecutors relied in good-faith on the FC-communications, which we do not, we would still reverse the district court's dismissal of these non-FC-related torts." Id. at 536.

The Sixth Circuit further stated:

We note that Dean and Carley argue that the district court's summary judgment order may be affirmed in any case because the claims at issue also fail as a matter of law. The briefing does suggest that some of the claims require close scrutiny. However, because we believe each of these claims requires weighty factual and legal determinations, we leave these determinations to make in the first instance. At this stage, therefore, we reverse the qualified immunity/summary-judgment dismissal of these intentional tort claims, and remand them to the district court for further consideration.

Id. at 536. Based upon this language, the court allowed Defendants to submit a motion for summary judgment on the state tort claims.

LAW AND ANALYSIS

Defendants make three main arguments in favor of dismissal of Plaintiffs' tort claims: (1) the torts unrelated to FC ("non-FC torts") are barred by qualified immunity; (2) all of the torts are barred by absolute immunity; and (3) each of thetort claims fails as a matter of law.

I. Qualified Immunity

Defendants contend that this court may dismiss the "non-FC torts" - defamation, invasion of privacy, and intentional infliction of emotional distress - on qualified immunity grounds. Plaintiffs argue that the issue of qualified immunity has been decided by the Sixth Circuit and that this court may not rule to the contrary. The court agrees that it does not appear that the Sixth Circuit intended this court to revisit the issue of qualified immunity, but rather the merits of the claims. The Sixth Circuit rejected Defendants' qualified immunity argument as to all of Plaintiffs' tort claims. The Sixth Circuit could have affirmed the grant of qualified immunity as to the "non-FC torts" based upon arguments presented by Defendant but not relied upon by this court; however, it did not do so.

Further, Plaintiffs' claims of defamation and intentional infliction of emotional distress rely in part on the use of FC and cannot be cleanly characterized as "non-FC torts." See Wendrow, 534 Fed. Appx. at 535 (reversing grant of qualified immunity as to "FC torts," including intentional infliction of emotional distress); Pls.' Br. at 16 (defamation claim based partly on statements made in reliance on AW's FC output, such as that Tali Wendrow allowed the abuse of her child).

As for Plaintiffs' invasion of privacy claims, Defendants did not address the specific basis for Plaintiffs' claims in the first instance. Compare Docket No. 202 at 27-28 with Docket No. 353 at 9-10. Under the circumstances, it would be unfair to Plaintiffs to allow Defendants a second bite at the qualified immunity apple at this stage of the proceedings. See Kennedy v. City of Cleveland, 797 F. 2d 297, 305 (6^th Cir. 1986) ("Where, as here, no new facts or previously unavailable legal arguments were offered and no good cause has been shown to excuse the inordinate delay, it was not an abuse of discretion in our judgment for the trial judge to have denied the motions [for qualified immunity]."). Defendants are not precluded, of course, from raising qualified immunity as a defense at trial. Id. at 305. Accordingly, the court will deny Defendants' motion for qualified immunity without prejudice.

II. Absolute Immunity

Defendants also seek absolute prosecutorial immunity under the common law of Michigan, which parallels prosecutorial immunity under federal law. Plaintiffs contend that common law immunity was abrogated by the enactment of Michigan's governmental immunity statute in 1986. The Sixth Circuit noted in a footnote: "In reversing, we do not express an opinion as to the reach of common-law absolute immunity to these state-law claims because Dean and Carley did notpresent an absolute immunity argument. However, we do note that it appears to be an open question as to whether Michigan's 1986 governmental-immunity statute eliminated the common-law absolute immunity that Michigan previously afforded to lower-level prosecutors for their quasi-judicial actions." Wendrow, 534 Fed. Appx. at 534 n.2 (emphasis added).

Defendants never raised the absolute immunity argument before this court or the Sixth Circuit; Plaintiffs contend that the issue has been waived. The court agrees that, for the purposes of summary judgment, the absolute immunity issue has been waived. Defendants may raise the issue at trial. See Kennedy, 797 F.2d at 306. Accordingly, the court will deny Defendants' motion for absolute immunity without prejudice.

III. Merits of State Claims

Defendants also contend that Plaintiffs' state tort claims fail on the merits, an issue that was raised in Defendants' original summary judgment motion. Having granted qualified immunity, the court did not reach the merits of the claims.

A. Defamation

"A communication is defamatory if it tends to lower an individual's reputation in the community or deters third persons from associating or dealingwith that individual." Ireland v. Edwards, 230 Mich. App. 607, 614 (1998). A plaintiff may establish a defamation claim by showing: "(1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod)." Id.

Plaintiffs' defamation claim is based upon various statements Dean and Carley made to the press, such as Dean's statement that "It's amazing how the parents are very big proponents of this method of communication [FC], but as soon as the child discloses sexual abuse, now the parents are arguing that this is not a proper means of communication." Docket No. 232-6. "Mom basically looked the other way and failed to protect her." Id. "Dean said that her mother threatened her not to tell anyone what happened, and the exam never took place. After the teen was removed from the home, an exam was conducted that revealed tears consistent with sexual abuse." Id. "Dean said that the teen's brother has said he observed some of the abuse." Id.

After the abuse case was dropped, Carley stated to the press that "(The teen) said several times that she was scared. Unfortunately, without her testimony, wedidn't have anything to tell us what happened. Initially, she was cooperative, but that changed." Id. In another article, Carley stated that the only reason the case was dismissed was because AW "refused to testify." Id.

Defendants contend that many of Dean's statements were based upon AW's CARE House interview and the police reports and reflected her honest belief. Defendants also contend that Plaintiffs are required to how that the statements were made maliciously. Contrary to Defendants' argument, there is no "honest belief" privilege under the circumstances presented here. See McCallister v. Detroit Free Press, 76 Mich. 338 (1889). Defendants rely upon McCallister, which holds that an honestly believed statement may be privileged if "made to a body or officer having power to redress...