RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMIE LEE PETERSON, ┐
Plaintiff-Appellee, │
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v. > Nos. 17-2270/2281
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DAVID HEYMES, et al., │
Defendants, │
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DAVID ISRAEL and COUNTY OF KALKASKA (17-2270); │
GREG SOMERS and MARK URIBE (17-2281), │
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Defendants-Appellants.
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┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:15-cv-00969—Paul Lewis Maloney, District Judge.
Argued: October 4, 2018
Decided and Filed: July 25, 2019
Before: SILER and KETHLEDGE, Circuit Judges; OLIVER, District Judge.
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COUNSEL
ARGUED: Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO, P.L.C.,
Livonia, Michigan, for Appellants David Israel and County of Kalkaska. John G. Fedynsky,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellants
Greg Somers and Mark Uribe. Roshna Bala Keen, LOEVY & LOEVY, Chicago, Illinois, for
Appellee. ON BRIEF: Douglas J. Curlew, CUMMINGS, MCCLOREY, DAVIS & ACHO,
P.L.C., Livonia, Michigan, for Appellants David Israel and County of Kalkaska. John G.
Fedynsky, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
The Honorable Solomon Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting
by designation.
Nos. 17-2270/2281 Peterson v. Heymes, et al. Page 2
Appellants Greg Somers and Mark Uribe. Roshna Bala Keen, Jon Loevy, LOEVY & LOEVY,
Chicago, Illinois, for Appellee.
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OPINION
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OLIVER, District Judge. In 2014, the Circuit Court for the County of Kalkaska,
Michigan vacated Plaintiff-Appellee Jamie Lee Peterson’s (“Peterson”) conviction for a 1996
rape and murder. Thereafter, he commenced this action, asserting federal claims under
42 U.S.C. § 1983 and various state-law claims in the United States District Court for the Western
District of Michigan against Defendants-Appellants David Israel (a Deputy in the Kalkaska
County Sheriff’s Department), Gregory Somers and Mark Uribe (officers of the Michigan State
Police), and the County of Kalkaska (“Defendants”).1 Peterson seeks redress for claims arising
from an allegedly coerced confession, which was admitted into evidence in Peterson’s criminal
trial, but was not the basis for Peterson’s relief from judgment. The district court found that
Peterson was not collaterally estopped from relitigating the voluntariness of his confession and
thus denied Defendants qualified immunity, absolute witness immunity, and governmental
immunity. Defendants appeal.
For the following reasons, we AFFIRM the district court’s decision to deny qualified
immunity and governmental immunity to Defendants Somers and Uribe and to deny their Motion
to Dismiss on all claims. Additionally, we REVERSE the district court’s decision to deny
Defendant Israel qualified immunity and governmental immunity. Thus, we find that the district
court erred in declining to dismiss the federal-law and state-law claims against Israel. Finally,
we REVERSE the district court’s decision to deny governmental immunity to the County of
1The original Complaint also named the Estate of Brian Donnelly, the prosecutor in Peterson’s criminal
trial. The Estate of Brian Donnelly has since been dismissed as a party in this case. This court also accepted the
appeal of Defendants Officer David Heymes and the Village of Kalkaska (Case No. 17-2283). On September 20,
2018, Peterson and Heymes and the Village of Kalkaska jointly moved the court, pursuant to Rule 12.1 of the
Federal Rules of Appellate Procedure, for a limited remand of this case to the United States District Court for the
Western District of Michigan for the purpose of considering Plaintiff’s Agreed Motion for Approval of Settlement
Involving a Legally Incapacitated Individual. The court granted the Joint Motion for Limited Remand that same
day.
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Kalkaska and to deny the County’s Motion to Dismiss as to the federal-law and state-law claims
against it. We REMAND to the district court for further action consistent with this opinion.
I. BACKGROUND
In 1996, Geraldine Montgomery was sexually assaulted and murdered in her home in
Kalkaska, Michigan. Months later, 22-year-old Jamie Lee Peterson was in the Kalkaska County
Jail on an unrelated charge, when another inmate informed Officers Heymes, Israel, and Somers
that Peterson had made an incriminating statement about the Montgomery crime. Peterson
claims that at the time, he suffered from brain damage, mental illness, and severe depression, and
was placed on suicide watch. Peterson also claims that Defendants knew of Peterson’s mental
illness and cognitive disabilities.
Somers met with Peterson to follow up on the lead. Peterson initially denied
involvement, but after nine interrogations and several polygraph examinations by Heymes,
Somers, and Uribe, Peterson confessed to committing the crime. Peterson alleges that the
officers took advantage of his mental state, fed him information to provide in his statements, and
induced his confession with false promises, including that he would be sent to a psychiatric
hospital instead of prison. He also claims that the officers continued to mislead him about the
consequences of his confession in order to pressure him into maintaining his statement even after
he attempted to recant it.
A week after Peterson confessed, the DNA results came back showing Peterson’s DNA
was not a match for the semen sample from the victim’s vagina. However, there was a second
sample from the victim’s shirt, which could not be tested using the technology available at the
time. Nevertheless, charges were brought against Peterson based on his confession, pursuing a
multiple assailant theory.
Before trial, Peterson’s attorney moved to suppress Peterson’s confession, arguing that
Peterson lacked the capacity to confess, and that the police officers used unlawful tactics that led
to his false confession. After a suppression hearing regarding the voluntariness of his
Nos. 17-2270/2281 Peterson v. Heymes, et al. Page 4
confession, which under Michigan law is called a Walker hearing,2 a judge found his confession
admissible. A jury subsequently convicted Peterson of the murder and rape charges, as well as
the commission of larceny in a building.
In 2013, after improvements in DNA technology, Peterson’s attorneys from the
University of Michigan Law School Innocence Clinic and Northwestern Law School’s Center on
Wrongful Convictions obtained new DNA test results that excluded Peterson as a contributor to
the previously inconclusive DNA sample found on the victim’s shirt. Based on this evidence,
Peterson’s conviction was vacated in 2014. He was granted a new trial, and the prosecution
subsequently dismissed the charges.
In 2015, Peterson commenced the instant case in the United States District Court for the
Western District of Michigan under 42 U.S.C. § 1983, seeking damages from Defendants for the
following claims: violations of the right against self-incrimination under the Fifth and Fourteenth
Amendments (Count I); due process violations under the Fourteenth Amendment (Count II);
failure to intervene to prevent the violation of federal constitutional rights (Count III); federal
malicious prosecution under the Fourth and Fourteenth Amendments (Count IV); conspiracy to
deprive federal constitutional rights (Count V); intentional infliction of emotional distress (Count
VI); malicious prosecution under state law (Count VII); civil conspiracy under state law (Count
VIII); respondeat superior (Count IX); and indemnification (Count X). Defendants Somers and
Uribe, and Israel and the County of Kalkaska, respectively filed motions to dismiss under Rules
12(b)(6) and 12(c). The officers each raised qualified immunity in regard to the federal-law
claims, and governmental immunity in regard to the state-law claims, as affirmative defenses.
The County of Kalkaska also moved to dismiss the federal claims against it on the basis of
Defendant Israel’s qualified immunity and governmental immunity. In support of immunity,
Defendants claimed Peterson was collaterally estopped from relitigating the voluntariness of his
confession, which the Michigan trial court had already determined was admissible in Peterson’s
criminal trial. Absent allegations of a coerced confession, Defendants argued that Peterson could
not defeat their immunity defenses.
2People v. Walker, 132 N.W.2d 87 (Mich. 1965) (establishing the requirement that the constitutionality of a
confession be determined at a hearing prior to jury trial).
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Because Defendants relied upon transcripts and other evidence from the Walker hearing
that were not raised in Peterson’s Amended Complaint, the district court converted the motions
to ones for summary judgment under Rule 12(d), but it is clear from the record that he did so
only as to the issue of collateral estoppel. The parties do not dispute that the court’s bifurcation
was proper. On September 29, 2017, the district court denied Defendants’ motions, finding that
the Michigan trial court’s determination did not have preclusive effect after Peterson’s
conviction was vacated. After considering Plaintiff’s allegations, the district court rejected the
defenses of qualified immunity as to each officer and governmental immunity to each defendant.
Defendants now appeal the denial of immunity, arguing that the district court erred in
rejecting Defendants’ claim that Peterson was collaterally estopped from challenging the legality
of his confession, and in finding that Peterson met his burden to overcome the immunity
defenses.
II. ANALYSIS
A. Jurisdiction
This court has jurisdiction to review the denial of immunity against Peterson’s federal-
law and state-law claims. Ordinarily, the denial of a motion for summary judgment is an
unappealable interlocutory ruling. 28 U.S.C. § 1291; Harrison v. Ash, 539 F.3d 510, 521 (6th
Cir. 2008). However, it is well-established that an order denying qualified immunity to a public
official is appealable as of right pursuant to the “collateral order” doctrine. Leary v. Livingston
Cty., 528 F.3d 438, 447 (6th Cir. 2008); see also Livermore ex rel. Rohm v. Lubelan, 476 F.3d
397, 407–08 (6th Cir. 2007) (finding the denial of governmental immunity for state-law claims is
also immediately appealable under Michigan state law). This is a narrow exception, which
permits appellate jurisdiction only “‘to the extent that a summary judgment order denies
qualified immunity based on a pure issue of law.’” Leary, 528 F.3d at 448 (quoting Gregory v.
City of Louisville, 444 F.3d 725, 742 (6th Cir. 2006)). Here, the issues of whether collateral
estoppel should apply to a determination made in a criminal proceeding whose judgment was
later vacated, or, in the alternative, whether Plaintiff sufficiently made out the elements to
overcome qualified immunity or governmental immunity, are pure issues of law appropriate for
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courts to decide on appeal. Id.; see Roberson v. Torres, 770 F.3d 398, 403 (6th Cir. 2014).
Because the denial of Defendant County of Kalkaska’s motion to dismiss was dependent on the
district court’s analysis and decision regarding immunity, this court may also exercise pendant
appellate jurisdiction over the County’s claims. Lane v. City of LaFollette, 490 F.3d 410, 423–
24 (6th Cir. 2007) (permitting jurisdiction over an interlocutory appeal by a municipality when
the municipality’s grounds for dismissal or summary judgment are “inextricably intertwined”
with the immunity analysis regarding its officer). Although Peterson argues that Israel, Somers,
and Uribe forfeited the defense of qualified immunity, Defendants adequately raised the defense
below.
B. Qualified Immunity
The court conducts a de novo review of whether qualified immunity is applicable. See v.
City of Elyria, 502 F.3d 484, 490 (6th Cir. 2007). Qualified immunity protects an official from
liability if the official’s conduct does not violate “clearly established” statutory or constitutional
rights that a reasonable person would have known were in existence. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court held
that a court must first determine whether there is a violation of a constitutional right before
addressing the issue of whether the right was clearly established. However, the Supreme Court
modified this approach in Pearson v. Callahan, 555 U.S. 223, 236–42 (2009). Thus, while this
approach may be appropriate in many cases, it is no longer mandatory. Id. at 236. District and
circuit court judges are allowed the freedom to determine which prong of the immunity analysis
to address first. Id.
The Supreme Court has also stressed that the “contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that “an official action is
protected by qualified immunity unless the very action in question has previously been held
unlawful.” Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985)). Rather, it means that,
“in the light of pre-existing law the unlawfulness must be apparent.” Id.
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A defendant bears the initial burden of putting forth facts that suggest that he was acting
within the scope of his discretionary authority. Rich v. City of Mayfield Heights, 955 F.2d 1092,
1095 (6th Cir. 1992). However, the plaintiff bears the ultimate burden of proof to show that the
defendants are not entitled to qualified immunity. Wegener v. City of Covington, 933 F.2d 390,
392 (6th Cir. 1991).
1.
Absent allegations of a coerced confession, Peterson cannot overcome qualified
immunity. Therefore, we turn first to the question of whether the district court erred in finding
Peterson was not collaterally estopped from relitigating the voluntariness of his confession.
Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts are required to
“give preclusive effect to state-court judgments whenever the courts of the State from which the
judgments emerged would do so.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81
(1984) (quoting Allen v. McCurry, 449 U.S. 90, 96 (1980)). The preclusive effect of a state court
judgment is determined by state law. See id. Michigan law allows “crossover estoppel,” which
precludes the relitigation of an issue from a criminal proceeding in a subsequent civil
proceeding, and vice versa. Barrow v. Pritchard, 597 N.W.2d 853, 855–56 (Mich. Ct. App.
1999). In Michigan, collateral estoppel applies when: (1) an issue has been actually litigated and
determined by a valid and final judgment; (2) the same parties have had a full and fair
opportunity to litigate the issue; and (3) there is mutuality of estoppel. See Monat v. State Farm
Ins. Co., 677 N.W.2d 843, 845–46 (Mich. 2004). However, mutuality is not required when
collateral estoppel is being invoked defensively. Id. at 844–45, 850.
Peterson argues that, because his conviction was vacated in 2014, the trial court’s
findings at the Walker hearing are not part of a “valid and final judgment.” See id. Defendants
assert that our decision in Hatchett v. City of Detroit holds that a trial court’s findings at a
Walker hearing retain their preclusive effect under Michigan law even after the conviction is
vacated. See 495 F. App’x 567 (6th Cir. 2012). But Hatchett is an unpublished decision in
which it was not clear that the criminal judgment had actually been vacated. See id. at 569;
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Hatchett v. City of Detroit, No. 08-CV-11864, 2010 WL 1754426, at *6 n.4 (E.D. Mich. Apr. 30,
2010).
Here, the criminal judgment has been vacated. Therefore, the trial court’s interlocutory
rulings—including those which the court made at the Walker hearing—have merged with the
final judgment, which means those interlocutory rulings have been vacated too. See People v.
Torres, 549 N.W.2d 540, 546 & n.14 & n.15 (Mich. 1996). And vacated rulings have no
preclusive effect under Michigan law. See Fast v. Fast, No. 221994, 2001 WL 637292, at *2
(Mich. Ct. App. May 25, 2001) (per curiam); see also Restatement (Second) of Judgments § 13
cmt. f. (1982); Burton v. Topacz, No. 212627, 2000 WL 33407430, at *3 (Mich. Ct. App. Aug.
18, 2000) (per curiam). This is also consistent with the approach we have taken in Dodrill v.
Ludt, a case based on Ohio law, where we clearly held that a vacated judgment “technically
leav[es] nothing to which we may accord preclusive effect.” 764 F.2d 442, 444 (6th Cir. 1985).
In Dodrill, this was the case even though the reversal of Dodrill’s conviction was not based on
the validity of the fact-findings from his suppression hearing. Id. at 445 (finding that when
Dodrill’s conviction was overturned, “all such factual determinations were vacated with it, and
their preclusive effect surrendered”). Thus, there is no “valid and final judgment” that precludes
Peterson from litigating his claims.
2.
Although Defendants’ argument for qualified immunity rests mainly on the issue of
collateral estoppel, Defendants also argue that, even accepting Peterson’s allegations as true,
they are entitled to qualified immunity because Peterson fails to plead clearly established
constitutional violations with respect to each federal claim. We analyze qualified immunity
separately for each defendant. See, e.g., Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014);
Bishop v. Hackel, 636 F.3d 757, 767 (6th Cir. 2011).
The Fifth Amendment, which protects against self-incrimination, requires confessions to
be given freely and voluntarily. Malloy v. Hogan, 378 U.S. 1, 7 (1964) (citing Bram v. United
States, 168 U.S. 532 (1897)). This right is applicable to the states through the Fourteenth
Amendment. Malloy, 378 U.S. at 8. A Fifth Amendment violation occurs only if the coerced
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confession is used against the defendant at trial. Chavez v. Martinez, 538 U.S. 760, 767 (2003).
In determining whether a confession is compelled, the constitutional inquiry is whether
“a defendant’s will was overborne in a particular case,” considering “the totality of all the
surrounding circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (noting that
the United States Supreme Court has taken into account the age, education, and intelligence of
the accused, length of detention, repeated or prolonged nature of questioning, physical
punishment, and psychological impact on the accused); United States v. Alsante, 812 F.3d 544,
548 (6th Cir. 2016). Thus, the Supreme Court has acknowledged that “coercion can be mental as
well as physical.” Blackburn v. Alabama, 361 U.S. 199, 206 (1960); see also Culombe v.
Connecticut, 367 U.S. 568, 620 (1961) (finding a cognitively impaired man’s confession was
coerced and improperly admitted at trial where officers pressured his wife and children to coax
him into confessing). For Fourteenth Amendment Due Process claims, the Sixth Circuit
considers whether the defendant’s conduct “shocks the conscience.” Chavez, 538 U.S. at 774.
This is a higher standard for “deprivations of liberty caused by the most egregious conduct.” Id.
Defendants Somers and Uribe argue that there was nothing inherently coercive or
improper about their interrogation techniques, and that nothing about their conduct would shock
the conscience. However, Peterson maintains that Defendants Somers and Uribe knew but
ignored the fact that Peterson was brain-damaged, emotionally unstable, depressed, and suicidal
at the time of his interrogation. In addition, Peterson, who was twenty-two years old at the time,
contends that Somers and Uribe fed him information to provide in his statements, and promised
he would be sent to a psychiatric hospital instead of prison if he confessed. Although the right
against self-incrimination “does not mandate that the police forgo all questioning,” Schneckloth,
412 U.S. at 225, considering the totality of the circumstances and taking Peterson’s allegations as
true at this stage, Peterson’s assertions are enough to show that Somers and Uribe’s conduct
could have amounted to a violation of the Fifth and Fourteenth Amendments. Thus, Peterson has
met the requirements to overcome Somers and Uribe’s qualified immunity defense with respect
to his claim under the Fifth and Fourteenth Amendments (Count I).
The same allegations support the denial of qualified immunity to Somers and Uribe for
Peterson’s other federal claims. Peterson’s Complaint alleges how Defendants Somers and
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Uribe fed Peterson information for his confession and withheld this and other exculpatory and
impeaching evidence from Peterson’s defense counsel, and how those allegations amount to a
clearly established constitutional violation with respect to malicious prosecution, procedural due
process rights, and failure to intervene. See France v. Lucas, 836 F.3d 612, 625–26 (6th Cir.
2016) (a claim for malicious prosecution under the Fourteenth Amendment exists when the
plaintiff was prosecuted without probable cause and the plaintiff suffered a deprivation of liberty
as a result of the legal proceedings); D’Ambrosio v. Marino, 747 F.3d 378, 389–90 (6th Cir.
2014) (requiring officers to disclose evidence when it is apparent that the evidence “could form a
basis for exonerating the defendant”) (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988));
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (recognizing that law enforcement officials
have an “affirmative duty to intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers” when there was a realistic opportunity to
intervene to prevent the harm from occurring) (citing Bruner v. Dunaway, 684 F.2d 422, 426
(6th Cir. 1982), cert. denied, 459 U.S. 1171 (1983)). In addition to the above statements from
the Complaint, Peterson’s claim of conspiracy to deprive him of his constitutional rights is
further supported by assertions that Somers and Uribe consulted one another during Peterson’s
interrogations. Accordingly, we affirm the district court’s decision to deny qualified immunity
to Somers and Uribe in regard to each of Peterson’s federal claims (Counts I–V).
However, unlike with Somers and Uribe, Peterson has not asserted sufficient allegations
that Defendant Israel committed clearly established constitutional violations. The Complaint
states that an inmate informed Israel about Peterson’s incriminating statements while the inmate
and Peterson were in jail together for reasons unrelated to this case. The Complaint also
indicates that Israel and Somers communicated before Somers first interrogated Peterson about
these incriminating statements. But the Complaint does not specifically state that Israel was
involved in conducting the interrogations, administering polygraph tests, or any other activities.
Thus, the allegations are too attenuated to show that a “violation was committed personally” by
Israel such that Israel violated a clearly established constitutional right. Robertson, 753 F.3d at
615 (emphasis in original). Therefore, we reverse the district court’s decision to deny qualified
immunity to Defendant Israel as to Peterson’s federal claims.
Nos. 17-2270/2281 Peterson v. Heymes, et al. Page 11
Where a municipality’s claims are “inextricably intertwined” with the qualified immunity
analysis before the court, the court may exercise pendant appellate jurisdiction regarding
municipal liability. Lane v. City of LaFollette, 490 F.3d 410, 423 (6th Cir. 2007). Thus, having
found that Israel is entitled to qualified immunity based on Peterson’s failure to establish Israel’s
commission of a constitutional violation, the County also cannot be liable under these
circumstances. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (whether the
municipality had a policy, practice, or custom that authorized the use of unconstitutional conduct
is irrelevant where the court has not found that the municipal officer’s conduct violated the
Constitution). Accordingly, we reverse the district court’s decision to deny the County’s Motion
to Dismiss as to the federal-law claims against it.
C. Governmental Immunity
The Officer Defendants also raise governmental immunity with respect to Peterson’s
state-law claims of intentional infliction of emotional distress (Count VI), malicious prosecution
(Count VII), and civil conspiracy (Count VIII). Michigan’s Government Tort Liability Act
shields government employees with immunity unless the employee’s conduct rises to the level of
“gross negligence” or their conduct constitutes an “intentional tort.” M.C.L. § 691.1401 et seq.;
Odom v. Wayne Cty., 760 N.W.2d 217, 228 (Mich. 2008) (reaffirming the test in Ross v.
Consumers Power Co., 363 N.W.2d 641 (Mich. 1984), as good law even after the passage of the
Governmental Tort Liability Act). Like its federal counterpart, governmental immunity is an
affirmative defense. For intentional torts, the Officer Defendants carry the burden to raise and
establish governmental immunity by showing that: “(1) [T]he employee’s challenged acts were
undertaken during the course of employment and that the employee was acting, or reasonably
believed he was acting, within the scope of his authority, (2) the acts were undertaken in good
faith, and (3) the acts were discretionary, rather than ministerial in nature.” Odom, 760 N.W.2d
at 218. A governmental employee fails the “good faith” standard under the second prong when
they act maliciously, recklessly, capriciously, or willfully and corruptly. See id. at 224–25.
We affirm the district court’s order denying governmental immunity to Defendants
Somers and Uribe, but reverse the district court’s denial as to Defendant Israel. Since Peterson is
not collaterally estopped from relitigating the voluntariness of his statements, there was no error
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when the district court determined that Somers and Uribe’s false promises and coaching of
Peterson, and their awareness of Peterson’s vulnerable mental state, does not amount to “honest
belief and good-faith conduct.” Id.; see also id. at 229 (noting that an objective analysis is not
the proper inquiry because the “good faith element . . . is subjective in nature”). However, the
Complaint limits Defendant Israel’s involvement to being informed by an inmate of Peterson’s
incriminating statements, and communicating with Somers before Somers’ first interrogation of
Peterson. We agree with Israel that these statements do not support that Israel acted outside the
scope of his authority or not in good faith. See, e.g., Walsh v. Taylor, 689 N.W.2d 506, 517
(Mich. Ct. App. 2004) (granting summary judgment to a defendant based on governmental
immunity, in part, where the plaintiff presented “no evidence that would give rise to a reasonable
inference that [the defendant] initiated or maintained” a malicious prosecution). Accordingly,
we affirm the district court’s decision to deny Somers and Uribe governmental immunity, but
reverse the district court’s denial of governmental immunity to Israel.
We also disagree with the district court’s decision to deny governmental immunity to the
County of Kalkaska. First, having determined that Defendant Israel is entitled to governmental
immunity, the County of Kalkaska is also entitled to governmental immunity as to the derivative
liability claims against it (Counts IX and X). Further, Michigan law provides that a
governmental body is immune from suit unless “a plaintiff pleads in avoidance of governmental
immunity by stating a claim that fits within a statutory exception,” or pleads that the
governmental body was not engaged in a governmental function when it caused the injury. Mack
v. City of Detroit, 649 N.W.2d 47, 55–57 (Mich. 2002); see Mich. Comp. Laws Ann.
§ 691.1407(1). Accordingly, unlike with the individual defendants, Peterson bears the burden of
pleading an exception to governmental immunity; otherwise, the County is entitled to it. Here,
Peterson did not allege that his case fit an exception to immunity or that the County’s alleged
torts arose from non-governmental activity. Thus, the County is entitled to governmental
immunity as to Peterson’s state-law claims. We reverse the district court’s decision denying the
County’s Motion to Dismiss the state-law claims against it.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of summary judgment
on the issue of collateral estoppel. We also AFFIRM the district court’s denial of Defendants
Somers and Uribe’s Motion to Dismiss the federal-law claims (Counts I-V) on the basis of a
denial of qualified immunity, and the district court’s denial of Somers and Uribe’s Motions to
Dismiss the state-law claims (Counts VI-VIII) on the basis of a denial of governmental
immunity. However, we REVERSE the district court’s decisions to deny Defendant Israel
qualified immunity and governmental immunity, and to deny Israel’s Motion to Dismiss the
federal-law and state-law claims (Counts I-VIII). We also REVERSE the district court’s denial
of governmental immunity to the County of Kalkaska and the district court’s decision to deny the
County’s Motion to Dismiss the federal-law and state-law claims against it (Counts I-IV, IX-X).
The case is remanded to the district court for further proceedings consistent with this opinion.