PATRICK MCCARTHY V ALISON SCOFIELD
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STATE OF MICHIGAN
COURT OF APPEALS
PATRICK MCCARTHY,
UNPUBLISHED
October 8, 2009
Plaintiff-Appellant,
v
ALISON SCOFIELD, DEPARTMENT OF
HUMAN SERVICES, ANDREA DEAN,
OAKLAND COUNTY PROSECUTOR, CAROLE
BOYD, OAKLAND COUNTY FRIEND OF THE
COURT, THOMAS CALLAHAN, and MILFORD
POLICE DEPARTMENT,
No. 284129
Oakland Circuit Court
LC No. 2006-079432-NO
Defendants-Appellees,
and
AMY ALLEN and CHILD ABUSE & NEGLECT
HOUSE/OAKLAND COUNTY CARE HOUSE,
Defendants.
Before: Donofrio, P.J., and Wilder and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting summary disposition in
favor of the various defendants pursuant to MCR 2.116(C)(7) (governmental immunity), (C)(8)
(failure to state a claim), and (C)(10) (no genuine issue of material fact), and thereby dismissing
each of plaintiff’s claims. We affirm.
I. Underlying Facts and Procedural History
Plaintiff is the divorced father of two daughters, who were 10 and 11 years old at the time
of the events giving rise to this action. After plaintiff filed a motion in his divorce case
requesting that he be awarded full custody of his children, they made several complaints about
him to their daycare provider. These complaints included allegations of inappropriate sexual
conduct. The daycare provider notified the children’s mother and Children’s Protective Services
(“CPS”). Defendant Alison Scofield investigated the allegations in the course of her
employment as a CPS investigator. Scofield arranged for the children to be interviewed by Amy
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Allen at the Oakland County Child Abuse and Neglect House (“Care House”). Also present
were defendant Carole Boyd, a family counselor for the Friend of the Court (“FOC”), Sgt.
Matthew Brumm of the Milford Police Department, and Assistant Oakland County Prosecutor
Shannon O’Brien, who attended the interview as members of a multi-disciplinary investigative
team. The children alleged that plaintiff violated their privacy when they changed their clothes,
bathed, or used the bathroom, and would watch them while they performed these functions.
They also alleged that he looked under their clothes and would sleep with the younger daughter
when the children spent the night at his home. The younger daughter also accused plaintiff of
touching her breasts, but the older daughter denied that plaintiff touched her breasts, except
possibly by accident.
As a result of the children’s accusations in the Care House interview, the Department of
Human Services (“DHS”) filed a petition in the family division of the Oakland Circuit Court
requesting that the court assert jurisdiction over the children and terminate plaintiff’s parental
rights under MCL 712A.19b(3)(b)(i) and (k)(ii). The Oakland County Prosecutor also brought
criminal charges against plaintiff for second-degree criminal sexual conduct, MCL 750.520c.
Assistant Prosecutor Andrea Dean was assigned to represent the state in both proceedings.
Plaintiff waived probable cause hearings in both proceedings. On the day that the adjudicative
trial in the child protective proceeding was scheduled to begin, the children informed Dean that
they had fabricated the allegations. They also recanted their allegations in an in-camera
interview with the family court judge. Dean thereafter moved to dismiss both the petition in the
child protective proceeding and the criminal charges, and the motions were granted.
Plaintiff subsequently brought this action against several defendants, including Scofield
and the DHS, Allen and the Oakland County Child Abuse and Neglect House, Dean and the
Oakland County Prosecutor, Boyd and the FOC, and Lieutenant Thomas Callahan and his
employer, the Milford Police Department, asserting numerous different claims. The trial court
granted summary disposition in favor of all defendants, primarily on the basis of governmental
immunity, MCR 2.116(C)(7), but the court also ruled that many of the counts alleged in
plaintiff’s complaint failed to state a claim for which relief could be granted, MCR 2.116(C)(8),
and that dismissal of many of the claims was also warranted because there was no genuine issue
of material fact, MCR 2.116(C)(10). This appeal followed.1
II. Governmental Immunity
The applicability of governmental immunity is a question of law that is reviewed de novo
on appeal. Herman v Detroit, 261 Mich App 141, 143; 680 NW2d 71 (2004). This Court also
reviews de novo a trial court’s resolution of a motion for summary disposition. Veenstra v
Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Summary disposition
may be granted under MCR 2.116(C)(7) when a claim is barred because of immunity granted by
1
After plaintiff filed this appeal, this Court granted a motion to affirm brought by defendants
Amy Allen and the Oakland County Child Abuse and Neglect House. McCarthy v Scofield,
unpublished order of the Court of Appeals, entered October 14, 2008 (Docket No. 284129).
Accordingly, these defendants are no longer involved in this appeal.
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law. In deciding a motion brought pursuant to MCR 2.116(C)(7), a court must consider the
pleadings and any affidavits, depositions, admissions, or other documentary evidence submitted
by the parties. MCR 2.116(G)(5); Holmes v Michigan Capital Medical Ctr, 242 Mich App 703,
706; 620 NW2d 319 (2000). If the pleadings or documentary evidence reveal no genuine issues
of material fact, the court must decide as a matter of law whether the claim is statutorily barred.
Id.
The governmental immunity statute, MCL 691.1407 provides, in pertinent part:
(1) Except as otherwise provided in this act, a governmental agency is
immune from tort liability if the governmental agency is engaged in the exercise
or discharge of a governmental function. Except as otherwise provided in this act,
this act does not modify or restrict the immunity of the state from tort liability as
it existed before July 1, 1965, which immunity is affirmed.
(2) Except as otherwise provided in this section, and without regard to the
discretionary or ministerial nature of the conduct in question, each officer and
employee of a governmental agency, each volunteer acting on behalf of a
governmental agency, and each member of a board, council, commission, or
statutorily created task force of a governmental agency is immune from tort
liability for an injury to a person or damage to property caused by the officer,
employee, or member while in the course of employment or service or caused by
the volunteer while acting on behalf of a governmental agency if all of the
following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably
believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) The officer’s, employee’s, member’s, or volunteer’s conduct does not
amount to gross negligence that is the proximate cause of the injury or damage.
(3) Subsection (2) does not alter the law of intentional torts as it existed
before July 7, 1986.
***
(5) A judge, a legislator, and the elective or highest appointive executive
official of all levels of government are immune from tort liability for injuries to
persons or damages to property if he or she is acting within the scope of his or her
judicial, legislative, or executive authority.
***
(7) As used in this section:
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(a) “Gross negligence” means conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.
Thus, MCL 691.1407(1) broadly exempts government agencies from tort liability if the
agency is engaged in the discharge of a governmental function. A “governmental function” is an
activity expressly or impliedly mandated or authorized by constitution, statute, local charter or
ordinance, or other law. MCL 691.1401(f); Maskery v Univ of Mich Bd of Regents, 468 Mich
609, 613-614; 664 NW2d 165 (2003). This definition is to be broadly applied. Id. It only
requires that there be some constitutional, statutory, or other legal basis for the activity in which
the agency was engaged. The definition of governmental function necessarily means that
activities unauthorized by law are not immune. Richardson v Jackson Co, 432 Mich 377, 381;
443 NW2d 105 (1989); Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 620; 363
NW2d 641 (1984). Thus, a claim that arises from an ultra vires act is not barred by
governmental immunity. Herman, supra at 144. The determination whether an activity involves
a governmental function must focus on the general activity, not the specific conduct involved at
the time of the tort. Tate v City of Grand Rapids, 256 Mich App 656, 661; 671 NW2d 84 (2003).
Application of these principles to this case leads to the conclusion that plaintiff’s tort
claims against the agency defendants are barred. The DHS was discharging its governmental
function to investigate reports of child abuse. See MCL 722.621 et seq. The Milford Police
Department was engaged in the discharge of its function of investigating a report of criminal
activity. The county prosecutor’s office was discharging its function of prosecuting alleged
criminal conduct. The FOC was involved in this case as part of its role of investigating
allegations of child abuse that arose during an ongoing custody dispute.
Plaintiff argues that the agencies’ actions were ultra vires because government agencies
have no authority to pursue criminal charges or seek protective custody of minor children in the
absence of probable cause. Plaintiff contends that there was no probable cause supporting the
criminal charges and requests for protective custody because all of the involved parties knew, or
should have known, that the allegations against him were false. However, this argument focuses
on the specific conduct involved at the time of the alleged torts, rather than the general activity,
and therefore fails to establish ultra vires actions. Tate, supra at 661.
Plaintiff failed to demonstrate factual support for his claim that probable cause for the
initiation of criminal charges and a child protective proceeding did not exist in this case.
Probable cause that an individual has committed a crime is established by evidence sufficient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief
of the individual’s guilt. People v Henderson, 282 Mich App 307, 312; 765 NW2d 619 (2009).
In this case, plaintiff’s daughters stated in their Care House interview that plaintiff regularly
viewed them while they were dressing, bathing, or using the bathroom, that he slept with the
younger girl, and that he touched their genitals under the pretext of applying medication. These
accusations were sufficient to cause a reasonable person to suspect that plaintiff committed
second-degree criminal sexual conduct, MCL 750.520c(1)(a). They also supported a reasonable
belief that grounds existed for the family court to exercise jurisdiction over the children pursuant
to MCL 712A.2(b)(1) and (2). Indeed, plaintiff waived probable cause determinations in both
the criminal and child protective proceedings.
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In order to avoid governmental immunity with respect to his claims against the individual
defendants, plaintiff was required to show either that they were not acting within the scope of
their authority, that they were not engaged in the exercise or discharge of a governmental
function, or that they engaged in grossly negligent conduct that proximately caused plaintiff’s
alleged injury. MCL 691.1407(2). The evidence discloses that all of the individual defendants
were acting within the scope of their authority in the exercise or discharge of a governmental
function. Scofield was investigating suspected child abuse in the course of her employment as a
CPS investigator. Dean was prosecuting a case that had been assigned to her in the course of her
duties as an assistant prosecutor. Boyd attended the Care House interview in the course of her
duties as a counselor for the FOC. Lt. Callahan interviewed the children, interviewed plaintiff,
and interviewed other witnesses, and prepared a report for the prosecutor’s consideration, within
the scope of his duties as a police officer. Thus, plaintiff’s only other avenue for avoiding these
defendants’ statutory qualified immunity is to establish that they were grossly negligent, i.e., that
they engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether
an injury results.” MCL 691.1407(7)(a). With respect to his intentional tort claims, plaintiff
must establish that the individual defendants acted maliciously or with a wanton or reckless
disregard of his rights. Odom v Wayne Co, 482 Mich 459, 474; 760 NW2d 217 (2008). It is not
sufficient for plaintiff merely to show that the individual defendants acted without probable
cause. Id.
Plaintiff asserts that all of the individual defendants knew, from the time of the Care
House interview, that his ex-wife had induced the children to lie, but nonetheless willfully
persisted with the proceedings against him with knowledge that the children’s accusations were
false. He contends that the individual defendants pressured and cajoled the children to lie despite
their insistence of his innocence. However, plaintiff failed to provide factual support for his
allegations. Plaintiff relies on an excerpt of the Care House interview in which Allen asked the
older child whether plaintiff had touched her breasts when he lifted her shirt. She replied that he
had done so “maybe once but it was probably an accident.” Plaintiff also relies on a paragraph in
the second amended petition that was filed in the child protective proceeding in which the DHS
alleged that the children were reluctant to cooperate with the proceedings, and that they had
asked why their mother wanted plaintiff to go to jail, after plaintiff aggressively confronted them
regarding their accusations.
This evidence, viewed in a light most favorable to plaintiff, fails to support his contention
that the defendants either knew that the children were lying, or that they induced the children to
lie. The older daughter merely indicated that she did not believe that plaintiff had deliberately
touched her breasts. However, she did not recant her other statements describing plaintiff’s
inappropriate conduct, or that he slept with the younger daughter, and the younger daughter did
not make any statements characterizing plaintiff’s conduct as an accident. In addition, both
children had stated that the younger daughter was the primary target of plaintiff’s inappropriate
conduct. Similarly, evidence that the children felt ambivalent, confused, and uneasy regarding
their participation in proceedings that could result in their father’s imprisonment or loss of his
parental rights, especially after he aggressively confronted them, does not show that defendants
were culpable of perpetrating a known falsehood.
Plaintiff also argues that defendants should have known that the children’s allegations
were false because they were made in the midst of a bitter custody battle. This circumstance
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does not render the children’s reports inherently incredible. Although the pending custody
motion was a relevant factor in assessing the children’s credibility, it did not require defendants
to disbelieve the children and automatically terminate the investigation. Plaintiff contends that
his ex-wife concocted the allegations in a desperate maneuver to sabotage a custody battle in
which plaintiff was certain to prevail, because dozens of witnesses, including her own family
members, were prepared to testify on his behalf. He insinuates that defendants’ failure to
recognize this ulterior motive was so unreasonable as to render their actions not only grossly
negligent, but intentionally malicious. Plaintiff’s self-serving assessment of the likelihood of
success in the custody dispute is not supported by evidence. Moreover, there is no evidence
supporting plaintiff’s speculation that the children’s mother coached the children to lie. On the
contrary, when recanting the allegations against plaintiff, the children told the family court judge
that their mother had instructed them to tell the truth. Plaintiff failed to establish factual support
for his allegations that the conduct of any of the individual defendants amounted to gross
negligence.
Plaintiff also argues that the Care House interview utilized a method aimed at confirming,
rather than testing, a hypothesis, and violated Care House’s own protocols. Assuming, arguendo,
that there is some merit to plaintiff’s criticisms of Allen’s methods, he has not shown any flaw
that renders the methods so reckless as to demonstrate a substantial lack of concern for whether
an injury results. The Care House interview transcript does not reveal that Allen asked leading
or suggestive questions, or that she prodded, coaxed, coached, or coerced the girls into making
allegations of sexual abuse. Without prompting, the girls freely related how plaintiff “peeked”
under their clothes, prohibited them from closing the bathroom and bedroom doors, or from
pulling the shower curtain closed, “barged” into the bathroom when they were bathing, and slept
with one daughter. There is no indication that Allen persuaded the girls to speak, or used any
threats or promises to induce their cooperation with the interviews.
Plaintiff’s complaint also alleges several intentional tort claims, including malicious
prosecution, wrongful institution of civil proceedings, abuse of process, false imprisonment,
obstruction of justice, defamation, and intentional infliction of emotional distress. Michigan’s
governmental immunity statute does not shield an individual’s intentional torts. Sudul v City of
Hamtramck, 221 Mich App 455, 458; 562 NW2d 478 (1997). But actions by a government
agent that would otherwise constitute intentional torts are shielded from liability if those actions
are justified because they were objectively reasonable under the circumstances. VanVorous v
Burmeister, 262 Mich App 467, 483; 687 NW2d 132 (2004).
Here, plaintiff failed to show that any of the defendants’ conduct was objectively
unreasonable. Scofield, a CPS worker employed to investigate reports of child abuse and
neglect, received a report that two children informed their daycare provider that plaintiff
regularly engaged in inappropriate conduct of a sexual nature. Acting in her capacity as a CPS
investigator, Scofield reported this information to the Milford Police Department and the FOC,
and scheduled a Care House interview. Lt. Callahan acted reasonably in conducting a police
investigation, which included interviews with plaintiff, the children, the children’s mother, and
the daycare provider. Scofield and Dean initiated the child protective proceeding and the
criminal actions based on the children’s statements. Under the circumstances, none of these
defendants engaged in conduct that was objectively unreasonable. Plaintiff maintains that
defendants blatantly disregarded the custody dispute as proof that the allegations could not be
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true. As indicated previously, however, while the custody dispute was relevant in assessing the
children’s credibility, it was not absolute proof of plaintiff’s innocence. This circumstance does
not render defendants’ conduct unreasonable. Indeed, defendants would be derelict in their law
enforcement and social service responsibilities if they were required to automatically reject as
false any allegation of child abuse made contemporaneously with a pending custody dispute.
There is simply no evidence to support plaintiff’s speculation that the defendants purposefully
and deliberately acted on allegations that were either known to be false, or were so inherently
incredible that they should have been recognized as false, or that defendants themselves
fabricated.
Scofield was also entitled to common-law social worker immunity. This Court first
recognized social worker absolute immunity in Martin v Children’s Aid Society, 215 Mich App
88; 544 NW2d 651 (1996). Relying on federal decisions recognizing absolute immunity of
social workers initiating and monitoring court-supervised child placement proceedings, this
Court stated:
These precedents recognize the important role that social workers play in
court proceedings to determine when to remove a child from the home and how
long to maintain the child in foster care. They also recognize that, to do that
difficult job effectively, social workers must be allowed to act without fear of
intimidating or harassing lawsuits by dissatisfied or angry parents. [Id. at 96,
citing Kurzawa v Mueller, 732 F2d 1456 (CA 6, 1984).]
The Court stated that “[w]hen a court is involved, granting immunity from civil suit does not
mean that the parents of a child taken from their home are without recourse to contest wrongful
conduct by a social worker,” because parents may avail themselves of the safeguards built into
the adjudication process. Id. at 97. The Court also found persuasive the policy argument that
social workers could not effectively perform their functions of intervening in volatile
circumstances to protect children and confront parents if they were at risk of lawsuits from
aggrieved parents. Id. at 97-98.
The Court in Martin found the federal precedents persuasive on the basis of public policy
concerns that apply with equal force to the pre-adjudication investigatory stages of a child
protective proceeding. The public policy interest in granting social workers the “freedom to
honestly assess a particular situation,” without fear of litigation by angry and frightened parents,
is not diminished in the pre-adjudication phase of the proceedings. On the contrary, this might
well be the most volatile stage of the proceeding.
Finally, Scofield is also entitled to quasi-judicial immunity granted to witnesses. In Reno
v Chung, 461 Mich 109, the companion case to Maiden v Rozwood, 461 Mich 109, 134; 597
NW2d 817 (1999), the plaintiff alleged that the defendant, an assistant county medical examiner,
was grossly negligent when she concluded that a murder victim’s injuries left her unable to speak
before her death. This finding resulted in criminal charges against the plaintiff, who had
previously informed the police that the victim told him the name of her assailant just before she
died. Id. at 116. Specialists retained by the prosecutor determined that the defendant’s
conclusions were wrong. Consequently, the prosecutor dismissed the charges. Id. at 117. The
plaintiff brought an action against the medical examiner, alleging that her conduct was grossly
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negligent. Id. Our Supreme Court concluded that the medical examiner was entitled to quasijudicial immunity. The Court explained:
[W]itnesses who testify during the course of judicial proceedings enjoy
quasi-judicial immunity. This immunity is available to those serving in a quasijudicial adjudicative capacity as well as “those persons other than judges without
whom the judicial process could not function.” Witnesses who are an integral
part of the judicial process “are wholly immunity from liability for the
consequences of their testimony or related evaluations.” [Id. (internal citations
omitted)].
The Court rejected the plaintiff’s argument that witness immunity was unavailable to the medical
examiner because her opinion was not offered in the course of a judicial proceeding. Id. at 135.
The Court stated that the autopsy “was performed under statutory mandate and was a necessary
predicate to defendant’s statutorily compelled testimony.” Id.
Likewise in this case, Scofield’s role as the DHS’s overseer in the investigation process
was done in preparation for legal proceedings in which Scofield would likely be compelled to
testify. Therefore, she is entitled to quasi-judicial immunity.
Defendants Dean and the Oakland County Prosecutor are also entitled to prosecutorial
immunity. To the extent that plaintiff’s complaint is directed at then Chief Prosecutor David
Gorcyca, he is entitled to absolute immunity under MCL 691.1407(5), as the elective executive
official in his level of government. Bischoff v Calhoun Co Prosecutor, 173 Mich App 802, 806;
434 NW2d 249 (1988). To the extent that plaintiff’s complaint is directed at the office of the
prosecutor, it is entitled to unqualified immunity for government agencies pursuant to MCL
691.1407(1).
Dean is an assistant prosecutor and, therefore, is not entitled to the absolute immunity
available to elective executive officials. However, Michigan recognizes quasi-judicial immunity
for prosecutors. Bischoff, supra at 802. The prosecutor’s actions here are clearly quasi-judicial.
Dean’s involvement in plaintiff’s legal proceedings were indisputably concerned with her role as
an advocate for the state. Consequently, she is entitled to immunity for her conduct in relation to
plaintiff’s proceedings.
III. Delay in Removing Plaintiff’s Name from the Central Registry
Plaintiff argues that the DHS’s failure to remove his name from the central registry until
a year after the dismissal of the child protection proceeding constitutes slander, slander per se,
libel, libel per se, and “false light.” These claims are barred by governmental immunity for the
reasons discussed in section II, supra.
IV. Entitlement to Destruction of Arrest Records
Plaintiff argues that the trial court erred by failing to order the destruction of his
fingerprint record, arrest card, and other arrest records.
Plaintiff relies on MCL 28.243, which provides, in pertinent part:
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(7) [I]f a person arrested for having committed an offense for which he or
she was fingerprinted under this section is released without a charge made against
him or her, . . . the official taking or holding the person's fingerprints and arrest
card shall immediately destroy the fingerprints and arrest card. The law
enforcement agency shall notify the department in writing that a . . . charge was
not made . . . if the juvenile's or arrested person's fingerprints were forwarded to
the department.
(8) [I]f an accused is found not guilty of an offense for which he or she
was fingerprinted under this section, upon final disposition of the charge against
the accused or juvenile, the fingerprints and arrest card shall be destroyed by the
official holding those items and the clerk of the court entering the disposition
shall notify the department of any finding of not guilty or not guilty by reason of
insanity, dismissal, or nolle prosequi, if it appears that the accused was initially
fingerprinted under this section . . . .
***
(12) The provisions of subsection (8) that require the destruction of the
fingerprints and the arrest card do not apply to a person who was arraigned in
circuit court or the family division of circuit court for any of the following:
(a) The commission or attempted commission of a crime with or against a
child under 16 years of age.
(b) Rape.
(c) Criminal sexual conduct in any degree.
Here, subsection (7) does not apply because plaintiff was not released without a charge being
made against him. Plaintiff comes within the scope of subsection (8), because he was found not
guilty by reason of nolle prosequi. However, subsection (12) provides that plaintiff is not
entitled to destruction of his records pursuant to subsection (8), because he was arraigned in
circuit court for second-degree criminal sexual conduct against children under 16 years of age.
Thus, the trial court properly refused to order the destruction of plaintiff’s arrest records under
this statute.
V. Amendment
Finally, plaintiff argues that the trial court was required to allow him to amend his
complaint in order to avoid summary disposition. Plaintiff’s argument is based on the erroneous
belief that the trial court granted summary disposition to the named defendants for failure to
name Assistant Prosecutor O’Brien and Milford Police Sgt. Brumm as additional defendants.
Because summary disposition was granted under MCR 2.116(C)(7), the trial court was not
obligated to provide plaintiff with an opportunity to amend his complaint pursuant to MCR
2.116(I)(5). Furthermore, a plaintiff is not entitled to amend his complaint if amendment would
be futile. Shember v Univ of Michigan Medical Ctr, 280 Mich App 309, 314; 760 NW2d 699
(2008). The immunity available to the other individual governmental defendants would equally
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extent to Sgt. Brumm and Assistant Prosecutor O’Brien. Plaintiff has not articulated any nonfutile basis for amending his complaint. Thus, he is not entitled to an opportunity to amend his
complaint.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kurtis T. Wilder
/s/ Donald S. Owens
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