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Maley v. Welch

United States District Court, E.D. Michigan, Southern Division

March 23, 2018

JAMIE MALEY, Plaintiff,
NATHAN WELCH, Defendant.

          R. Steven Whalen United States Magistrate Judge


          Paul D. Borman United States District Judge

         On October 1, 2015, Defendant Nathan Welch, a St. Clair County Sheriff's deputy, went to the home of Plaintiff Jamie Maley to investigate a complaint by her teenaged son JB that she had physically abused him the night before. Based on his conversations with JB and with Plaintiff, Defendant decided to allow JB to temporarily stay with his father (Plaintiff's ex-husband, who shared legal custody of JB with Plaintiff) while the Michigan Department of Health and Human Services' Child Protective Services division (“CPS”) investigated the incident. Defendant dictated his report of those conversations into his digital audio recorder, directing the typist who would receive the recording to forward a copy to CPS. Defendant then docked his recorder in a transmitter and left on vacation, unaware that a technical error had prevented his report from transmitting. After several days of calling various municipal and state agencies, Plaintiff was finally able to motivate the St. Clair County Sheriff's Office to track down Defendant's report and send it to CPS, which immediately initiated an investigation. JB was returned to Plaintiff's custody before the CPS investigation finished, twelve days after the initial incident.

         Plaintiff brought this lawsuit pursuant to 42 U.S.C. § 1983 against Deputy Welch and the County of St. Clair. She subsequently dropped the claims against the County, leaving only one procedural due process claim and one substantive due process claim, each asserted against Defendant Welch, in the action.

         Both parties have moved for summary judgment. For the reasons below, the Court finds that Plaintiff's claims against Defendant are barred under the doctrine of qualified immunity. For that reason, the Court will deny Plaintiff's Motion for Summary Judgment, and grant Defendant's Motion for Summary Judgment.

         I. Background

         A. Facts

         1. Background

         Plaintiff lives in Lynn Township, Michigan with two of her three children and her husband Philip Maley. (ECF No. 19, Def.'s Mot. Ex. 1, Deposition of Jamie Maley (“Plaintiff Dep.”) at 17:17-18:4.) Plaintiff and the father of her children, Roy Berger, were divorced in 2008, and their relationship has been acrimonious ever since. (Plaintiff Dep. 58:5-11.) Berger later remarried, and now lives with his wife in Harrison Township, Michigan. (Plaintiff Dep. 12:10-11, 38:24-39:1.)

         The youngest of Plaintiff's children is her son JB, who was 15 during the relevant time period. (Def.'s Mot. Ex. 3, Deposition of JB at 5:24-25.) Plaintiff and Berger share joint legal custody of JB: Plaintiff has physical custody and receives child support, and Berger has visitation rights. (Plaintiff Dep. 31:18-34:4; ECF No. 27, Pl.'s Mot. Ex. A, Judgment of Divorce.) The terms of the custody have changed frequently over the years-eight times, by Plaintiff's count-but the baseline arrangement at the relevant time was that Berger had visitation for half of the summers, every other weekend, and one mid-week day. Plaintiff testified that she typically let her children visit their father whenever they wanted to: for example, JB spent the entire summer of 2015 with his father. (Plaintiff Dep. 32:18-35:1.)

         In May 2015, around the end of his eighth-grade year, JB asked Plaintiff to let him live with his father, claiming that the area where his father lived had a better school system and more job opportunities. Plaintiff testified that she refused his request because she did not believe his reasons were sincere. JB continued to ask, and continued to receive the same answer, until he left to spend the summer with Berger. (Plaintiff Dep. 46:24-48:13.)

         When JB returned at the end of the summer to start his freshman year of high school, he pressed Plaintiff further on the prospect of living with his father, and around this time Berger began to contact Plaintiff about it as well. Plaintiff held fast in refusing JB's requests because she “was looking to hear his reason, not looking to hear what was told to him.” (Plaintiff Dep. 49:21-51:10.) On September 9, 2015, Berger filed a motion to change custody in the Lapeer County Circuit Court, and a hearing on the motion was scheduled for October 12. (Pl.'s Mot. Ex. B, Motion for Change of Custody; Plaintiff Dep. 100:23-101:10.)

         2. September 30, 2015 incident

          On the evening of Wednesday, September 30, 2015, JB's stepfather Philip Maley confronted JB over his failure to finish mowing the lawn. Maley told JB that he had certain responsibilities by virtue of his living in his mother and stepfather's house, to which JB replied that he only lived there because his mother would not let him live with his father. At a certain point Maley sent JB to his room for the night, and proceeded to relate the argument to Plaintiff. (Pl.'s Mot. Ex. H, Deposition of Philip Maley (“Maley Dep.”) at 8:13-9:24; JB Dep. 7:14-8:1.) Plaintiff then went to JB's bedroom. (Plaintiff Dep. 66:6-19.)

         What happened next in JB's bedroom is sharply disputed. Plaintiff testified that she “yelled at him, ” elaborating that “I told him that I had survived a childhood of abuse, three child births, two cancers and a divorce, and I wasn't going to have him talk to me like that in my house”-by which she meant “yelling and being defiant.” (Plaintiff Dep. 65:15-67:4.) While Plaintiff admitted that she yelled at him “inches from his face, ” she asserted unequivocally that there was no physical contact, testifying that she “never laid a finger on him.” (Plaintiff Dep. 67:16-68:4, 72:15-19.) By JB's account, Plaintiff grabbed his shoulders, repeating the action several times as he shook her hands off of him; hit him “like twice” with her partly open hand, at least once in the face; and grabbed his neck once as “she was going for [his] shoulder.” (JB Dep. 17:3-18:17.) Maley could hear Plaintiff and JB arguing from a room down the hall, and he testified that while he did not hear JB say anything that suggested he was being attacked, he could not say whether Plaintiff made physical contact with JB. (Maley Dep. 9:25-11:5.)

         JB testified that after his mother left his room, “I was talking to my dad, telling him what happened. He asked if I wanted him to come get me. And I said, no, we can wait till tomorrow. He said, well, what happened? And I told him what happened, and he wanted pictures.” (JB Dep. 14:12-16.) JB used a cell phone to take two pictures of his face, neck, and torso, which he then sent to his father through his stepsister. (JB Dep. 14:16-19; Def.'s Mot. Ex. 4, Photographs.) JB testified that Berger suggested they call the police, but that JB declined “[b]ecause if the cops did come and I had to stay, I didn't want it to get worse.” (JB Dep. 25:7-11.) JB further testified that Plaintiff had not hit him before, but that in that moment he was afraid she might be angry enough to hit him again. (JB Dep. 17:1-18, 20:21-22, 25:12-18.) Berger agreed to meet JB at school the next day so that they could talk to the police there. (JB Dep. 25:21-26:2.)

         3. Defendant's October 1, 2015 interviews of JB and Berger

          The following morning, Berger met JB at his school. JB testified that Berger intended to take JB out of school to meet with police, but the school would not let him because he was not listed on JB's release forms. The principal called the local police for them, and after the first officer to respond determined that the incident was not within his jurisdiction, a call was placed to the St. Clair County Sheriff's Office. Defendant Welch was dispatched to the high school. (JB Dep. 26:19-27:13; Def.'s Mot. Ex. 5, Deposition of Nathan Welch 15:2-7.)

         JB related to Defendant what had happened the night before and showed Defendant the pictures he had sent his father. Defendant testified that he did not see “marks on [JB] . . . indicating any type of injury.” (JB Dep. 29:18-30:8; Welch Dep. 16:23-25, 39:6-8.) JB testified that he asked Defendant not to arrest his mother because his sister would need a ride home from school, but that he did ask Defendant “if there was any way I could stay with my dad till this was done, and he said yes.” (JB Dep. 30:17-31:6.) More specifically, JB testified that Defendant “said I'll let you go home with your dad until court to find out what's going on.” (JB Dep. 31:7-10.)

         Defendant's Incident Report of the interview with JB states that according to JB, when his mother entered his room the previous night, she “did become very hostile towards him. He stated that he did put his hands up over his face. She did at that time begin swatting his hands and his arms. Stated that she did hit on his face and as well as on his neck.” (Def.'s Mot. Ex. 2, Incident Report at 4, Pg ID 197.)

         Defendant noted in the Incident Report that Berger said “that there is a long history of his ex-wife, JAMIE, with anger.” (Id.) The Incident Report then relates that Berger had been contacted by JB the previous night and received the pictures that JB took, and goes on to state that Berger told Defendant “that the reason that they have called now is because they are afraid for his son to go back to the residence.

         He does feel that it is unsafe for him to be there.” (Id.) The Incident Report further states that Defendant advised Berger

that he would do the report for child abuse/assault against [JB] from his mother JAMIE; did advise that he would forward a copy to Child Protective Services and also to the prosecutor's office. ROY was advised that he could take his son back to his residence due to the fact that he does go there every other weekend anyways and then until Child Protective Services could do an evaluation, [JB] could live with him for the time being. ROY did state that on October 12th, they do have a custody hearing for the judge to determine if [JB] can stay with him or if he has to stay with his mother.

(Id. at 4-5, Pg ID 197-98.)

         4. Defendant's October 1, 2015 interview of Plaintiff

         Although JB's testimony and the Incident Report suggest that Defendant told JB he could temporarily stay with his father when they were still at the high school, Defendant himself testified that he made that decision after speaking with Plaintiff at her house later that same day. (Welch Dep. 15:15-16:2.) After interviewing JB and Berger at the school, Defendant drove to Plaintiff's house, followed by JB and Berger in Berger's vehicle, to hear Plaintiff's side of the story. JB and Berger waited outside in the car during the interview. (Welch Dep. 17:1-7, 41:21-42:9.)

         When she opened the door, Defendant said to Plaintiff that he was there because what he had heard from JB about the incident the night before. Plaintiff said that she had yelled at JB, but denied having hit him. (Plaintiff Dep. 79:8-22; Welch Dep. 17:6-13.) Plaintiff testified that she “said to [Defendant] that it was a ploy to try to go and live with his father and that it was made up, that it didn't happen. [Defendant] told me that he was not the judge and could not decide if it happened or not.” (Plaintiff Dep. 79:24-80:2; see also Welch Dep. 20:10-13.) Defendant testified that Plaintiff became angry enough that her demeanor hindered the interview: “She did become very, we'll say, hostile in her mannerisms towards me at that point. . . . [W]ith her mannerisms the way they were, I attempted to have an interview with her the best that I could but was unable to.” (Welch Dep. 17:8-16.) Based on the statements by JB and Berger, the pictures that JB had taken, and Defendant's interview with Plaintiff, Defendant concluded that if JB kept “staying in that house [he] was going to be the victim of an assault again.” (Welch Dep. 23:6-13.)

         Regarding his interview with Plaintiff, Defendant's Incident Report states:

She stated that she does yell very loudly and very often, where she does not use any physical force. When asked if she used any physical force on son last night, she stated that she did not. When she was advised that her son had pictures of red marks around his throat as well as on his face, she stated that he must have done them himself. She did state to undersigned deputy that this is a ploy so that her son [JB] can go stay with his father, ROY.
Undersigned deputy did advise her that that was in fact what was happening today, that [JB] was going to be staying with ROY until Child Protective Services could be notified and an investigation was completed. She did state that she understood. At that time she was advised that the report was going to be forwarded to Child Protective Services as well as to the prosecutor's office for review. She stated that that was fine. At that time she did allow her son to get whatever property he wanted outside the residence. And undersigned deputy as well as [JB] did clear the house.

(Incident Report at 5, Pg ID 198.)

         5. St. Clair County Sheriff's Office policies and subsequent events

         A St. Clair County Sheriff's Office Department Order entitled “Juvenile Removal Protocol” that was in effect at the relevant time set forth “[c]riteria for removing a child from a caregiver (anyone who is responsible for the care of the child).” (Def.'s Mot. Ex. 6, Juvenile Removal Protocol.) That section of the Juvenile Removal Protocol indicates that removal is permissible “[w]hen the child's immediate physical safety is in question (such as the child being struck in a domestic violence case), ” and also “[w]hen the physical environment that the child is living in is not appropriate.” (Id. at 1-2, Pg ID 237-38.) The same section states: “The standard of proof is REASON TO BELIEVE. (Always err in favor of the child).” (Id. at 2, Pg ID 238 (emphasis in original).) The Juvenile Removal Protocol further states: “The Juvenile Code gives any law enforcement officer broad powers to remove a child from immediate danger without pre-approval by a court officer. It further directs officers to take into custody any child whose surroundings are such as to endanger his/her health, morals or welfare.” (Id.)

         Further, operating protocol for deputies in the St. Clair County Sheriff's Office at the relevant time was to dictate all incident reports into digital recorders that they carried with them; when a deputy's shift was over, the deputy would plug the recorder into a cradle, prompting the recorder to transmit all of the dictations the deputy had made into a software system, which in turn assigned them to typists in the department. (Def.'s Mot. Ex. 5, Deposition of Matthew Paulus at 10:6-11:15; Welch Dep. 11:17-13:24.) Deputies could designate incident reports as “priority” reports, which would then be assigned to typists more quickly. Standard practice for a deputy was to first indicate that a particular incident report was a priority report by pressing a button on the recorder, and then later to make a note on a dry-erase board at the station that there was a priority report in his or her device. Defendant testified that any report of a “domestic” like the incident with Plaintiff and JB would have to be a priority report. (Welch Dep. 28:5-29:13, 30:6-31:10, 39:9-40:10.)

         After Defendant had interviewed Plaintiff and JB had left with Berger, Defendant returned to his car and dictated the Incident Report quoted above into his recorder. (Welch Dep. 11:17-12:11; 21:11-18.) Defendant testified that in dictating the Incident Report, he instructed the typist to forward a copy to CPS; the Incident Report contains a line reading “Cc Child Protective Services” after Defendant's narrative. (Welch Dep. 24:10-19; Incident Report at 5, Pg ID 198.) Defendant further testified that after interviewing Plaintiff, he called a supervising sergeant, pursuant to policy, to tell the sergeant “about me removing the child from the house and giving . . . him to the dad that night, and to give him the heads up that the mom might . . . actually be calling him.” (Welch Dep. 14:5-20.) The record does not indicate whether Defendant pressed the button on his device to designate the report as a priority report, and Defendant testified that while his standard practice in the situation would have been to make a note on the priority list at the station, he could not recall whether he did so in this particular case. (Welch Dep. 28:5-22, 30:6-10.)

         Due to a technical error, Defendant's report did not upload to the system when he docked his recorder. (Welch Dep. 48:12-19; Paulus Dep. 20:4-18.) Unaware of this fact, Defendant then began an extended leave ...

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