Wendrow et al v. Michigan Department of Human Services et al

Filing 392

OPINION AND ORDER denying in part and granting in part 353 Motion for Summary Judgment. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THAL FLAM WENDROW, et al.,
Plaintiffs,
Case No. 08-14324
v.
Hon. John Corbett O’Meara
MICHIGAN DEPARTMENT OF
HUMAN SERVICES, et al.,
Defendants.
_______________________________/
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 Sixth

Circuit affirmed in part and reversed in part. Wendrow v. Michigan Dept. of
Human Servs., 534 Fed. Appx. 516 (6th 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 sexualabuse allegations and that specific safeguards should have been utilized, but were
not.” Wendrow, 534 Fed. Appx. at 534.
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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 the
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tort 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).
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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 (6th 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 commonlaw absolute immunity to these state-law claims because Dean and Carley did not
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present 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 dealing
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with 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, we
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didn’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 a grievance complained of, or having cognizance of the
subject-matter of the communication, to some intent or purpose.” Id. at 356-57.
This is not the case here, where Dean and Carley made statements to the press. See
Bowerman v. Detroit Free Press, 287 Mich. 443, 446 (1939) (“The fact that the
inaccuracy contained in the publication is the result of an honest mistake may
possibly be shown by the defendant in mitigation of damages, but the honesty of
the mistake does not justify the defamation.”).
Moreover, Plaintiffs need not show malice as an element of their defamation
claim, because they are not public figures or public officials. See, e.g., Ireland,
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230 Mich. App. at 637 (plaintiff was limited-purpose public figure); Faxon v.
Michigan Republican State Central Comm., 244 Mich. App. 468, 476 (2001)
(“[W]hether the actual malice standard is pertinent in a given case depends on
whether the plaintiff is a public official or public figure.”).
For these reasons, Defendants have not met their burden of demonstrating
that they are entitled to judgment as a matter of law on Plaintiffs’ defamation
claim.
B.

Intentional Infliction of Emotional Distress

Defendants have also failed to meet their burden regarding Plaintiffs’
intentional infliction of emotional distress claim, arguing simply that their conduct
did not rise to the level of “outrageous.” In light of all the facts, the court finds
that Plaintiffs have raised a question of fact regarding this claim. See Pls.’ Br. at
20. Lewis v. LeGrow, 258 Mich. App. 175, 197 (2003) (“Where reasonable minds
may differ, whether a defendant’s conduct is so extreme and outrageous so as to
impose liability is a question for the jury.”).
C.

Invasion of Privacy – Disclosure of Private Facts

In order to establish a claim for invasion of privacy due to the disclosure of
private facts, a plaintiff must establish “that the disclosed information is highly
offensive to a reasonable person and that the information is of no legitimate
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concern to the public. The information published must concern the individual's
private life and must not have been a matter of public record or otherwise exposed
to the public eye.” Winstead v. Sweeney, 205 Mich. App. 664, 668 (1994).
Plaintiffs’ claim is based upon two disclosures: Dean allegedly disclosed the
press that IW had Asperger’s Syndrome; and Carley disclosed that AW “started
having problems” and was “having trouble in school.” Docket No. 232-6, Exs.
24A, 24D, 24L. Defendants contend that these statements “concerned alleged
crimes which are matters of public concern.” Defs.’ Br. at 21. Defendants also
argue that these facts were a “matter of public record.” Id. at 22. Defendants do
not specify how these facts were a matter of public record or how personal
information regarding AW and IW is a matter of public concern. At a minimum,
there is a question of fact regarding these issues.
D.

Invasion of Privacy – False Light

“False light invasion of privacy requires a communication broadcast to the
public in general or publicized to a large number of people which places the
injured party in a light which would be highly offensive to a reasonable person.
The actor must have had knowledge of or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the other would be
placed.” Early Detection Center, P.C. v. New York Life Ins. Co., 157 Mich. App.
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618, 630 (1986).
This claim is based upon Dean’s statement that the Wendrows were “very
big proponents” of FC, and only determined that “this is not a proper means of
communication” when the allegations of abuse arose. Defendants contend that the
statement is true because Wendrows were in fact proponents of FC, and came to
believe differently after it was shown that AW could not communicate in court.
Plaintiffs argue, however, that the Wendrows never condoned the use of FC
without appropriate protocols and training, as was done to elicit sexual abuse
allegations from AW. “These statements falsely attributed support for the
communication technique the authorities were using to elicit abuse allegations, and
in doing so made the Wendrow appear guilty of covering up child abuse.” Pls’. Br.
at 22. Indeed, Dean’s statement implies that the Wendrows disingenuously
disclaimed support for FC in only order to discredit the abuse allegations against
them. Viewing it in the light most favorable to Plaintiffs, the statement is not true
and casts the Wendrows in a false light.
E.

Malicious Prosecution

The elements of a malicious prosecution claim are (1) a prosecution caused
or continued by one person against another; (2) termination of the proceeding in
favor of the person who was prosecuted; (3) absence of probable cause for
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initiating or continuing the proceeding; and (4) initiating or continuing the
proceeding with malice or a primary purpose other than that of bringing the
offender to justice. Abdul-Mujeeb v. Sears Roebuck & Co., 154 Mich. App. 249,
254 (1986).
Defendants contend that Dean and Carley did not “initiate” the action
against the Wendrows. However, these prosecutors “continued” the criminal
prosecution, which is sufficient. See id. Defendants also claim that AW’s
statements that her father abused her and that her mother knew, but did nothing,
provided probable cause. However, it is clear that whether AW’s statements were
sufficiently reliable to support probable cause is a question of fact. Defendants
further argue that they did not act with malice. Nonetheless, Defendants’ actions
in continuing the prosecution even after it arguably became clear that AW could
not reliably communicate through FC raises a question of fact regarding malice.
Defendants have not met their burden of demonstrating that they are entitled to
judgment as a matter of law on this claim.
F.

Abuse of Process

In order to establish a claim for abuse of process, Plaintiffs must show,
“First, the existence of an ulterior purpose, and, second, an act in the use of the
process not proper in the regular prosecution of the proceeding.” Three Lakes
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Assoc. v. Whiting, 75 Mich. App. 564, 572, 255 N.W.2d 686 (1977) (citation
omitted). “Regular and legitimate use of process, though with a bad intention, is
not a malicious abuse of process.” Id. The nature of the improper act required to
establish such a claim is explained as follows:
Some definite act or threat not authorized by the process,
or aimed at an objective not legitimate in the use of the
process, is required; and there is no liability where the
defendant has done nothing more than carry out the
process to its authorized conclusion, even though with
bad intentions. The improper purpose usually takes the
form of coercion to obtain a collateral advantage, not
properly involved in the proceeding itself, such as the
surrender of property or the payment of money, by the
use of the process as a threat or club. There is, in other
words, a form of extortion, and it is what is done in the
course of negotiation, rather than in the issuance or any
formal use of the process itself, which constitutes the tort.
Id. at 573 (quoting Prosser, Torts (4th ed.), § 121 at 857) (emphasis added). See
also Young v. Motor City Apts. Ltd., 133 Mich. App. 671, 678-80 (1984).
Plaintiffs contend that the “ulterior purpose here is political,” in that
Defendants were sensitive to press coverage and public criticism of the
prosecutor’s office’s handling of Plaintiffs’ case and others. This falls into the
category of “regular and legitimate use of process, though with a bad intention,”
rather than attempting to use the prosecution to obtain a collateral advantage, “by
the use of the process as a threat or club.” In other words, there is no allegation
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that the prosecutors were attempting to get the Wendrows to do something or give
up something and used the prosecution as a threat to get their way. See Three
Lakes, 75 Mich. App. at 574 (defendants allegedly used lawsuit to coerce plaintiff
into ending otherwise proper opposition to condominium project). See also Docket
No. 288 at 39-41 (dismissing Plaintiff’s abuse of process claim against the Walled
Lake School District defendants). The court finds that Plaintiffs have not stated a
claim for abuse of process as a matter of law.
ORDER
IT IS HEREBY ORDERED that Defendants’ motion for summary judgment
is DENIED WITHOUT PREJUDICE with respect to qualified and absolute
immunity, DENIED as to the merits of the defamation, intentional infliction of
emotional distress, invasion of privacy, and malicious prosecution claims, and
GRANTED as to the abuse of process claim.
s/John Corbett O’Meara
United States District Judge
Date: May 7, 2014

I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, May 7, 2014, using the ECF system.

s/William Barkholz
Case Manager

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