Luis Antonio Martinez, Sr v. Wayne Cnty., Mich.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0164p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LUIS ANTONIO MARTINEZ, SR; ANA MARTINEZ DE

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JESUS; YARITZA MARTINEZ DE JESUS; DEBORA

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MARTINEZ DE JESUS; ENITH MARTINEZ DE JESUS,

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Plaintiffs-Appellants, > No. 24-1474

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v. │

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WAYNE COUNTY, MICHIGAN, et al., │

Defendants-Appellees. │

┘

On Appeal from the United States District Court

For the Eastern District of Michigan at Detroit.

No. 23-cv-1135—Matthew F. Leitman, District Judge.

Argued: March 20, 2025

Decided and Filed: June 23, 2025

Before: GRIFFIN, NALBANDIAN, and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Julie H. Hurwitz, GOODMAN HURWITZ & JAMES, PC, Detroit, Michigan, for

Appellants. Jason D. Killips, BROOKS WILKINS SHARKEY & TURCO, Birmingham,

Michigan, for Appellees. ON BRIEF: Julie H. Hurwitz, Matthew S. Erard, Huwaida Arraf,

GOODMAN HURWITZ & JAMES, PC, Detroit, Michigan, for Appellants. Jason D. Killips,

Maureen T. Taylor, BROOKS WILKINS SHARKEY & TURCO, Birmingham, Michigan, for

Appellees.

NALBANDIAN, J., delivered the opinion of the court in which GRIFFIN, J., concurred,

and MATHIS, J., concurred in part and in the judgment. MATHIS, J. (pg. 21), delivered a

separate concurring opinion.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 2

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OPINION

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NALBANDIAN, Circuit Judge. Luis Martinez Jr. died in February 2021 and the Wayne

County Medical Examiner’s Office (WCMEO) took control of his body. The WCMEO found

his next of kin but inexplicably did not contact them. Meanwhile, the family hired a social

worker to find out what happened to Luis Jr. In April 2021, the investigator found him. But by

then, his body was in an advanced state of decomposition and had to be cremated.

The family sued Wayne County and various state officials under § 1983 alleging a

Fourteenth Amendment procedural due process claim, a Monell liability claim, and various state-

law claims. The defendants moved to dismiss, and the district court granted the motion. The

family appealed. Although it’s clear that the complaint alleges tragically irresponsible conduct

by the defendants, that conduct is not a clearly established constitutional violation. And the

Monell claim fails on both the lack of a clearly established constitutional violation and a failure

to state facts supporting the claim. So we affirm.

I.

Because this case is on a motion to dismiss, we take the facts as plaintiffs alleged them in

the complaint. England v. DENSO Int’l Am. Inc., 136 F.4th 632, 634 (6th Cir. 2025). On

February 3, 2021, Luis Antonio Martinez Jr. was found unconscious and transported to a

hospital. He was pronounced dead that evening. The next day, his body was transferred to the

WCMEO where Dr. Michael Caplan performed an autopsy. Defendants William Kasper, Dale

Collins, Dr. Leigh Hlavaty, Dr. Carl Schmidt, and two investigators (Davis and Doe)

(collectively, the “individual defendants”) conducted and supervised an investigation into Luis

Jr.’s next of kin. They identified Luis Jr.’s body, his date of birth, two last known addresses, and

eight family members who are next of kin. Despite finding them, no one from the WCMEO

contacted the family about Luis Jr.’s death.

After realizing he was missing, Luis Jr.’s family hired a social worker to find him. On

April 8, 2021, the social worker told Ana Martinez De Jesus, Luis Jr.’s sister, that he was dead,

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 3

and his body was in the WCMEO’s possession.1 Ana went to the WCMEO and demanded to see

him and take possession of his body. An investigator spoke with Ana but only showed her

photos of Luis Jr.’s body because “by then the body was in an advanced state of decomposition.”

R.13, Second Am. Compl., p.7, PageID 68. Ana and various individual defendants argued for

forty-five minutes, during which Ana was told that no one notified her of Luis Jr.’s death

because they “were backed up and didn’t get to it until now.” Id.

Ana was not allowed to see Luis Jr.’s body before the body was transferred to a funeral

home and cremated. The family could not identify his remains or confirm that the cremated

body was in fact Luis Jr.’s body. They were also denied sacred funeral and burial rites because

the body had to be cremated.

Luis Jr.’s next of kin are his father, Luis Antonio Martinez Sr., and his four sisters, Ana,

Yaritza, Debora, and Enith Martinez De Jesus (collectively, “Martinez Family”). They sued the

individual defendants and Wayne County alleging a federal constitutional violation under 42

U.S.C. § 1983 against the individual defendants, a Monell liability claim against Wayne County,

and Michigan state-law claims of gross negligence and intentional or reckless infliction of

emotional distress.

For the § 1983 claims, the family alleged that they had a property interest as Luis Jr.’s

next of kin that is recognized under state law and protected by the Fourteenth Amendment. They

alleged that the defendants violated that interest by not telling them about Luis Jr.’s death until

the body was severely decomposed. And that the lack of a a pre- or post-deprivation hearing

violated their procedural due process rights. They also alleged that Wayne County was liable

under a Monell theory for either not training WCMEO staff on their responsibility to notify and

deliver a decedent’s body to the next of kin or not acting to ensure WCMEO staff fulfilled this

responsibility.

The defendants moved to dismiss under Rule 12(b)(6). The district court granted the

motion with prejudice for the federal claims on April 25, 2024. The district court found that any

1Because the last name of each of the family members is either Martinez or Martinez De Jesus, we refer to

them by their first names.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 4

alleged rights violation was not clearly established. And the Monell claim failed because the

family did not allege facts to state a plausible claim for relief. The court declined to exercise

supplemental jurisdiction over the family’s state claims and dismissed them without prejudice.

The Martinez Family appealed.

II.

We review de novo the district court’s dismissal of a § 1983 suit based on qualified

immunity. Crosby v. Univ. of Ky., 863 F.3d 545, 551 (6th Cir. 2017). The plaintiff has the

burden of showing that a defendant is not entitled to qualified immunity, but that burden is “not

high at the 12(b)(6) stage: Reading the complaint in the light most favorable to the plaintiff, it

need only be ‘plausible’ that an official’s acts violated a clearly established constitutional right.”

MacIntosh v. Clous, 69 F.4th 309, 315 (6th Cir. 2023).

But while the burden is not high in this posture, it does not disappear either. “Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the

line between possibility and plausibility of entitlement to relief.” Crawford v. Tilley, 15 F.4th

752, 762 (6th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Rather, to state a

plausible claim, the plaintiff must plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Iqbal,

556 U.S. at 678). And the validity of a qualified immunity defense, like most affirmative

defenses, “may be apparent from the face of the complaint,” in which case dismissal is proper.

Id. at 763. A county official is entitled to qualified immunity from a § 1983 suit if either (1) his

conduct did not violate a constitutional right or (2) that right was not clearly established at the

time of the conduct. Crawford, 15 F.4th at 760. This court can address these prongs “in either

order.” Id. And if one is lacking, the court need not address the other and can dismiss the

plaintiff’s claim based on the defendant’s immunity. Id.

Because any constitutional violation alleged by the Martinez Family is not clearly

established, we affirm. And so we do not address whether the defendants’ conduct violated the

Martinez Family’s constitutional rights. Still, some background on the alleged violation is

necessary to understand why it is not clearly established.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 5

A.

The Martinez Family alleges that the defendants violated their Fourteenth Amendment

due process rights by depriving them of a property interest without procedural protections.

Under the Due Process Clause of the Fourteenth Amendment, a state cannot “deprive any person

of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. To show

a procedural due process violation, the plaintiff must allege (1) a life, liberty, or property interest

protected by the Due Process Clause; (2) that he was deprived of that interest; and (3) that the

state did not provide him adequate process prior to depriving him of the interest. Waeschle v.

Dragovic, 576 F.3d 539, 544 (6th Cir. 2009).

The Constitution does not create property interests. Bd. of Regents v. Roth, 408 U.S. 564,

577 (1972). Instead, those interests are “created and their dimensions are defined by existing

rules . . . from an independent source such as state law.” Id. Still, once that interest has been

identified, whether it is constitutionally protected “is a question of federal constitutional law.”

Waeschle, 576 F.3d at 544 (quoting Whaley v. County of Tuscola, 58 F.3d 1111, 1114 (6th Cir.

1995)). To receive constitutional protection, the property interest “must be more than abstract

desires or attractions to a benefit.” Id. at 544–45 (internal quotation marks omitted). The

plaintiff must have “a legitimate claim of entitlement” to the interest. Id. at 545 (internal

quotation marks omitted).

The Martinez Family alleges that they had “fundamental property interests in Luis, Jr.’s

body.” R.13, Second Am. Compl., p.9, PageID 70. So first we will look to state law (here,

Michigan law) to decide whether that property interest exists. Then we will apply federal law to

decide whether the Constitution protects it.

We have held that “Michigan provides the next of kin with a constitutionally protected

property interest in the dead body of a relative.” Whaley, 58 F.3d at 1116. But the interest is not

necessarily in the body itself. Rather, three Michigan Supreme Court cases have explained the

contours of the interest.

In 1899, the Michigan Supreme Court first recognized a “quasi property” right associated

with a dead body. Keyes v. Konkel, 78 N.W. 649, 649 (Mich. 1899). In Keyes, undertakers took

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 6

charge of a corpse and began preparing it for burial when the decedent’s son demanded the body

back. Id. The undertakers refused to turn it over without payment for their services, so the son

brought an action for replevin. Id. The court acknowledged the son had rights but found that

replevin was not a suitable action to vindicate those rights and dismissed the suit. Id. Regarding

the son’s rights, the court noted that in English common law “there can be no property in a

human body.” Id. (citing Williams v. Williams, 20 Ch. Div. 659 (1882)). But contemporaneous

American courts had identified a “right to control and bury [a body], and to recover against one

who mutilates the corpse.” Id. And that “quasi property” right provided recovery “not for the

damage to the corpse as property, but damage to the next of kin by infringement of his right to

have the body delivered to him for burial without mutilation.” Id. So even though a replevin

action could not stand, a court might have equitable jurisdiction “to prevent interference with the

control of the dead body by persons entitled to control it.” Id.

The Michigan Supreme Court built on this principle in Doxtator v. Chicago & W.M. Ry.

Co. later that year. 79 N.W. 922 (Mich. 1899). There, a widow sued her late husband’s

employer for allowing his legs to be amputated and destroyed during an attempt to save his life

after a railroad accident. Id. at 923. The attempt failed and, after he died, she claimed a right to

have her husband’s body buried with his legs. Id. at 922. The court again acknowledged the

next of kin’s “entitle[ment] to possession of the body, as it is when death comes.” Id. at 922.

Both parties had conceded “that it is an actionable wrong for another to interfere with that right

by withholding the body or mutilating it in any way.” Id. at 922. But that right was not helpful

under these facts. It was “[a]nother question” entirely whether a “right of action exists in the

widow for the destruction of fragments amputated from the body of her husband during his

lifetime.” Id. at 923. Still, the court didn’t need to answer this question either because the wife

did not sue the proper parties. Id. at 924. And the court reversed the lower court’s decision on

those grounds. Id.

In Deeg v. City of Detroit, the Michigan Supreme Court confirmed it was “settled by the

great weight of authority that the unlawful and intentional mutilation of a dead body gives right

to a cause of action on behalf of the person or persons entitled to the possession, control, and

burial of such body.” 76 N.W.2d 16, 19 (Mich. 1956) (discussing Keyes, 78 N.W. at 649, and

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 7

Doxtator, 79 N.W. at 922). A hospital had removed certain organs from the decedent’s body for

laboratory examination and then destroyed them. Id. at 18. The exam was not medically

necessary and was done without the widow’s consent. Id. So the widow sought damages for

interference with her right to the possession and burial of the whole body. Id. The court said

that the widow had a cause of action, not based on a property right to the body itself but based on

the hospital’s infringement of her right to “have the body delivered to [her] for burial without

mutilation.” Id. at 19 (quoting Keyes, 78 N.W. at 649). But the widow died during the litigation.

Id. at 20. And since the right was personal to her as next of kin, standing to sue died with her

and did not pass to her estate. Id. at 20. So the court dismissed the suit. Id.

These cases confirm that Michigan provides some right to next of kin related to the

possession of the decedent’s body and the body’s condition. See also Waeschle, 576 F.3d at 546

(noting the right “of the next of kin ‘to possess the body for burial and prevent its mutilation’”

“was inferred from several Michigan Supreme Court cases recognizing a cause of action for the

unlawful mutilation of a corpse.” (quoting Whaley, 58 F.3d at 1114)). And in Whaley we

considered how the Constitution protects that right.

There, a pathologist’s assistant removed the corneas from corpses without the next of

kin’s permission. Whaley, 58 F.3d at 1113. The assistant ran an eye bank and had a business

agreement with two counties where he would pay all the counties’ autopsy expenses whenever

he took the corneas from a corpse and half the expenses when he did not. Id. The decedent’s

next of kin sued under § 1983 alleging Fourteenth Amendment procedural due process

violations. Id. The district court dismissed the suit finding that “Michigan law did not create an

interest in a dead body sufficient to qualify as a ‘property interest’” under the Constitution. Id.

And on appeal, we had to decide “whether the next of kin have a property interest in the body,

including the eyes, of a deceased relative.” Id. We reviewed Keyes, Doxtator, and Deeg to

conclude that Michigan provides the next of kin “a right to possess the body for burial and

prevent mutilation.” Id. at 1115 (citing Doxtator, 79 N.W. 922; Keyes, 78 N.W. 649; and Deeg,

76 N.W.2d 16). So we reversed the motion to dismiss.

We also held that Brotherton v. Cleveland, 923 F.2d 477 (6th Cir. 1991), governed the

question in Whaley because the rights recognized by Michigan and Ohio were the same. Id. at

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 8

1114. That case also involved the nonconsensual removal of corneas from corpses and found a

property interest existed under Ohio law. Id. In coming to that decision, we highlighted several

Ohio statutes that granted relatives rights in their deceased relative’s body as well as Ohio court

cases that gave next of kin a “‘legitimate claim of entitlement’ in the [deceased person’s] body.”

Id. (alteration in original) (quoting Brotherton, 923 F.2d at 482). Like Michigan courts, Ohio

courts denounced a general property right in a dead body. Id. But we found this labeling

immaterial because, taken together, Ohio’s cases and statutes “grant[ed] the next of kin the right

to dispose of the body by making a gift of it, to prevent others from damaging the body, and to

possess the body for purposes of burial” and “[s]uch rights in an object are the heart and soul of

the common law understanding of ‘property.’” Id. at 1115. So in substance, Ohio granted next

of kin a property interest.

Turning to Michigan law, we found Keyes, Doxtator, and Deeg provided “virtually

identical” rights in a decedent’s body that Ohio provided. While based in common law rather

than statutory law, Michigan still provided next of kin “the right to dispose of the body in limited

circumstances, possess the body for burial, and prevent its mutilation.” Id. at 1116. So like in

Brotherton, the next of kin possessed “a constitutionally protected property interest in the dead

body of a relative.” Id.

B.

But just because the next of kin have some constitutionally protected property rights does

not mean that right extends to the circumstances here or that it is clearly established that the

conduct here violated that right. We turn now to that latter question, which resolves this case.

A right is clearly established if “the contours of [the] right are sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011) (internal quotation marks and alterations omitted). Plaintiffs

need not find a case directly on point, but existing precedent at the time the conduct occurred

must place the “constitutional question beyond debate.” Id. And to ensure that, courts cannot

“define established law at too high a level of generality.” City of Tahlequah v. Bond, 595 U.S. 9,

12 (2021) (per curiam). “It is not enough that a rule be suggested by then-existing precedent”;

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 9

the specifics of existing law must make the contours of the rule clear. Id. (emphasis added)

(internal quotation marks omitted).

The Martinez Family claims the defendants violated their clearly established rights when

they failed to notify them of Luis Jr.’s death and failed to prevent the mutilation and mishandling

of his body. They point to the cases discussed above as well as a few others discussed below to

allege that their rights are clearly established. They also claim several Michigan statutes

establish their rights.

The family zeroes in on our statement in Whaley (relying on Doxtator, Keyes, and Deeg)

that the Michigan courts have held that the “next of kin have a right to possess the body for

burial and prevent its mutilation.” 58 F.3d at 1115. But this statement defines the right at too

high a level of generality to put WCMEO officials on notice that their conduct here violated the

family’s constitutional rights. The heart of the Martinez Family’s claim is that the failure to

timely notify them of Luis Jr.’s death deprived them of their right to possess the body for burial,

specifically because the body was severely decomposed and required cremation. So two things

undergird the alleged constitutional violation: (1) delayed notification of the decedent’s death

and (2) severe, natural decomposition of the corpse. Put differently, this case involves a body’s

natural decomposition due to (at most) reckless conduct by state officials. But none of the cases

cited deal with these issues.

Whaley dealt with a pathologist’s assistant who removed the corneas from corpses

without the next of kin’s permission and gave them to an eye bank. 58 F.3d at 1113. The court

never discussed when the next of kin’s right to possess the body kicked in or when the next of

kin must be notified of the decedent’s death because the due process violation was based on the

intentional mutilation of the body—not notification or decomposition. Id. at 1115. Brotherton

dealt with nearly identical, intentional conduct: the nonconsensual removal of corneas from

corpses. 923 F.2d at 479. And so it likewise never discussed timely notification of death to next

of kin or natural decomposition.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 10

Those cases involve volitional acts, which is consistent with the standard definition of

mutilation.2 The family says that allowing a body to badly decompose is essentially the same

thing as mutilation. And they’re right that to a grieving family, the result looks no different. But

that’s not enough. Neither Whaley nor Brotherton nor any other case in our circuit establishes a

next of kin’s right to recover when a failure to timely notify them of a death leads to the severe,

but natural, decomposition of the decedent’s body. And that’s especially important in the

context of § 1983, which otherwise requires intent.

Next, we turn back to state law. But to the extent that the Martinez family relies on

Michigan law alone to clearly establish the law here, it is of no help. 3 Start with Deeg. 76

N.W.2d 18. The case dealt with a hospital that unnecessarily removed and destroyed organs

from the decedent’s body. Id. at 18. Again, it was a case about intentional mutilation rather than

natural decomposition or notification of death. Id. at 19. To be fair, Doxtator and Keyes are

different. They don’t deal with intentional mutilation, but the next of kin’s possessory interest in

the body. Doxtator, 79 N.W. at 922 (wife claims right to have her husband’s body buried with

his legs); Keyes, 78 N.W. at 649 (son claims right to reclaim body from undertaker). Still,

2Available definitions of “mutilation” almost universally involve some affirmative act of destruction,

which was not present here. See Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/mutilation (last visited May 28, 2025) (defining “mutilation” as “(1) an act or instance of

destroying, removing, or severely damaging a limb or other body part of a person or animal; (2) an act or instance of

damaging or altering something radically”); see also Cambridge University Press & Assessment Online Dictionary,

https://dictionary.cambridge.org/dictionary/english/mutilation (last visited May 28, 2025) (defining “mutilation” as

“(1) the act of damaging something severely, especially by violently removing a part; (2) the act of destroying an

idea or a piece of art or entertainment”).

Although we found one definition of “mutilate” that arguably allowed for a bit more passivity: “to deprive

(a person or animal) of a limb or other essential part.” Dictionary.com, https://www.dictionary.com/browse/mutilate

(last visited May 28, 2025). It is unclear whether the common understanding of the word would encompass

knowingly allowing a body to decompose. Even so, as the district court pointed out, all of the mutilation cases in

Michigan courts involve intentional mutilation, not natural decomposition.

3Procedural due process cases present a unique challenge with respect to the clearly established inquiry

because we look to state law to define the contours of the property right that the plaintiff is asserting. Roth, 408 U.S.

at 577. So we examine state law to figure out whether it was obvious to the defendant officials that the asserted

property interest was recognized by the state and federally protected. Waeschle, 576 F.3d at 550 (finding the

plaintiff’s “alleged constitutionally protected property right . . . is . . . not clearly established because the underlying

state-created property interest is not ‘sufficiently clear that a reasonable official would understand that what he is

doing violates that right.’” (quoting Drogosch v. Metcalf, 557 F.3d 372, 379 (6th Cir. 2009)). This poses a challenge

in cases like this one where the asserted property interest doesn’t “resemble any traditional conception of property.”

Town of Castle Rock v. Gonzales, 545 U.S. 748, 766 (2005).

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 11

neither case answers the question here because the conduct behind the cases was notably

different.

In Keyes, the undertaker intentionally withheld the body in pursuit of payment from the

next of kin. 78 N.W. at 649. So again, we have intentional conduct unlike the conduct here.

Doxtator appears closer because it did not involve intentional conduct; the alleged rights

violation arose from the company “negligently allow[ing] the cremation of the dissevered

limbs.” 79 N.W. at 599. But it is a great distance away from our facts. First, nothing in the case

dealt with delayed notification. The next of kin was notified of her husband’s death and that his

limbs had to be amputated. Id. at 597. Second, the amputation occurred “during his lifetime”

since it sought to save his life. Id. So her right to receive the body “as it is when death comes”

was “another question” not at issue in the case. Id. And finally, the court did not need to decide

anything about the defendant’s conduct because the wife sued the wrong party. Id. It is hard to

see how a case decided on entirely different grounds than the situation here could establish the

unconstitutionality of our defendants’ conduct.

In each of these cases, the Michigan Supreme Court made general statements about the

next of kin’s right to possess the body. And this general right was the starting point for the

court’s analysis, but “general propositions of law are generally . . . insufficient to clearly

establish a right.” Rhodes v. Michigan, 10 F.4th 665, 679 (6th Cir. 2021). And they certainly do

not put the individual defendants here on notice that their conduct––not notifying Luis Jr.’s next

of kin of his death until his body was severely, but naturally, decomposed––amounted to a

constitutional violation. Without that, the constitutional violation is not well-defined enough to

be clearly established. See al-Kidd, 563 U.S. at 741.4 The district court came to the same

conclusion. It found that these cases did not involve “claims concerning the timeliness of

delivery of the corpse or naturally-occurring [sic] decomposition.” Martinez v. County of

Wayne, No. 23-cv-11350, 2024 WL 1806423, at *6 (E.D. Mich April 25, 2024). So even if some

4The Martinez Family points to a few other cases that are even less helpful for them. For example, Dennis

v. Robbins Funeral Home has some language about withholding a corpse, but that case dealt with how Michigan’s

statute of limitations applied to alleged torts by a funeral director or a mortician. 411 N.W.2d 156, 159 n.8 (Mich.

1987). The differences on the facts and law make it impossible for the case to clearly establish the right at issue

here.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 12

statements by Michigan courts “suggest” a rights violation may exist, this does not clearly

establish the violation. Bond, 595 U.S. at 12.

Next, the Martinez Family points to the Michigan Court of Appeals’ decision in Dampier

v. Wayne County, 592 N.W.2d 809 (Mich. Ct. App. 1999). In Dampier, a plaintiff claimed to

have a constitutionally protected property right in the decedent’s body that the county violated by

allowing it to severely decompose. Id. at 816–17. She alleged a state constitutional violation

and requested leave to amend her complaint to add a federal Fourteenth Amendment claim under

§ 1983, which the court denied after dismissing the state claim. Id. at 812–13. The Michigan

Court of Appeals affirmed on the state-constitutional claim finding that no such property right

existed. Id. at 817. But then it reversed and granted the plaintiff leave to amend her complaint to

add the federal claim. Id. at 819. It held the plaintiffs “alleged an interference with their federal

constitutional property right, pursuant to the Whaley decisions.” Id. at 820.

But Dampier doesn’t help the plaintiffs here. To begin with, “[f]or a right to be clearly

established, ‘existing precedent must have placed the . . . constitutional question beyond

debate.’” Bell v. City of Southfield, 37 F.4th 362, 368 (6th Cir. 2022) (quoting Rivas-Villegas v.

Cortesluna, 595 U.S. 1, 5 (2021) (per curiam)). So we have rejected a plaintiff’s attempt to use

an unpublished case to clearly establish a right. Id. at 367–68. Though this court has not always

been consistent with that requirement, we have said that, at minimum, a “robust consensus of

cases of persuasive authority” is necessary absent controlling authority. Stewart v. City of

Euclid, 90 F.3d 667, 674 (6th Cir. 2020). Dampier is neither binding precedent on this court nor

does the single case show a “robust consensus” among persuasive authority.5

The district court pointed out other problems with the Dampier decision. See Martinez,

2024 WL 1806423, at *9. The Michigan Court of Appeals appeared to miss the fact that the

federal-due-process right at issue was based on a state-created property interest because the

5In fact, the case seems to conflict with other Michigan Courts of Appeals cases that say “[t]he due process

guarantee of the Michigan Constitution is coextensive with its federal counterpart.” Grimes v. Van Hook-Williams,

839 N.W.2d 237, 242 (Mich. Ct. App. 2013); see also People v. Johnson, 971 N.W.2d 692, 695 n.3 (Mich. Ct. App.

2021) (same); Cummins v. Robinson Township, 770 N.W.2d 421, 438 (Mich. Ct. App. 2009) (per curiam) (same);

People v. Sierb, 581 N.W.2d 219, 221 (Mich. Ct. App. 1998) (same and reminding that “courts should reject the

‘unprincipled creation of state constitutional rights that exceed their federal counterparts’” (quoting Sitz v. Dep’t of

State Police, 506 N.W.2d 209, 218 (Mich. 1993))).

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 13

federal Constitution does not create property rights. Roth, 408 U.S. at 577. So its conclusion

that the claim didn’t implicate a cognizable state-property interest but rather one under the

federal Constitution was internally inconsistent. Similarly, the court did not seem to appreciate

that Whaley relied on Michigan caselaw. 58 F.3d at 1115. So Dampier is not persuasive.

The Martinez Family tries to buttress Dampier by distinguishing the state and federal

constitutions and claiming that the district court focused on the right’s label rather than its state-

law substance. Even if that were true, it still leaves the matter unresolved at best. And two other

district court cases in this circuit have come out the other way. Badder v. Schmidt, 50 F. Supp.

3d 902, 917–18 (E.D. Mich. 2014) (“no clearly-established constitutional right was violated by

Defendants’ delay in notifying [the Plaintiff] of her daughter’s death”); Majchrzak v. Wayne

County, No. 20-10778, 2022 WL 20692608, at *5 (E.D. Mich. 2022) (“no authority” for the

plaintiff’s claim that “an alleged delay in notifying family of a relative’s death, or an alleged

delay in delivering the body to them, violates a constitutional right”). And it’s worth noting that

these cases seemed to have more faithful interpretations of Whaley.6 Given this, it is hard to see

how existing precedent can place the constitutional issue beyond debate.

Finally, the Martinez Family points to a Michigan statute to claim that it helps establish

the right. They point to § 52.205(4), which says that “the county medical examiner shall

ascertain the identity of the decedent and immediately and as compassionately as possible notify

the next of kin of the decedent’s death and the location of the body.” Mich. Comp. Laws

§ 52.205(4). While this statute might make the defendants aware that they violated state law, it

does nothing to put them on notice that they violated a federal constitutional rule. For that, the

family looks to Whaley to say that the state statutes “contemplate and imply the next of kin’s

right to possession of the body, to which the protection of federal law attached.” Appellant Br. at

28.

6The Martinez Family claims that Badder and Majchrzak came out differently because of the different

facts. They are correct that each of those cases involved human errors that prevented the medical examiner from

identifying the next of kin while this case involves a medical examiner who identified but did not contact the next of

kin. But that is a distinction without a difference. The relevance of these cases are their propositions of law, not the

facts. Both cases held that existing Michigan and Sixth Circuit caselaw did not clearly establish a constitutional

right to prompt notification of a decedent’s death to prevent significant decomposition of the body before burial.

And though those cases are not binding on us, we raise them to highlight that there is no consensus of persuasive

authority that the right exists.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 14

Whaley did find that two Michigan “statutes imply that the next of kin do indeed have a

‘right’ to the deceased relative’s body.” 58 F.3d at 1116. But those were two different statutes

than the statutes the Martinez Family raised. And regardless, this was an offhand remark after

the court emphasized that in Michigan it is common law––not statutory law––that has developed

the next of kin’s rights. Id. The court expressly stated that “no Michigan statute clearly states

that there is such a right,” even though two statutes seem to contemplate its existence. Id. These

statements cannot put a reasonable official on notice that violating § 52.205(4) amounts to a

constitutional violation. Whatever the nature of the obligations imposed by the statute, it does

“not purport to establish a right to” immediate notice of a decedent’s death and so cannot clearly

establish it. See Montgomery v. County of Clinton, No. 90-1940, 1991 WL 153071, at *2 (6th

Cir. Aug. 9, 1991) (table opinion) (finding a state law requiring officials to notify a decedent’s

parents before an autopsy does not create a constitutional right to recovery based on the

examiner’s failure to follow the statute).

Because the Martinez Family did not have a clearly established constitutional right to

timely notice of Luis Jr.’s death to prevent decomposition of his body, the defendants are entitled

to qualified immunity.

III.

The Martinez Family also appeals the district court’s dismissal of their Monell liability

claim against Wayne County. The district court found the complaint did not state a viable claim

for relief. The court also noted that its holding that the family did not allege a clearly established

constitutional violation “may be fatal” to the municipal liability claim but did not definitively

answer that question. Martinez, 2024 WL 1806423, at *13 n.6.

A.

We review a dismissal for failure to state a claim de novo. Kenjoh Outdoor, LLC v.

Marchbanks, 23 F.4th 686, 692 (6th Cir. 2022). A claim survives only if it “contain[s] sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.

(internal quotation marks omitted). And to be facially plausible, the claim must allow the court

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 15

“to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

(internal quotation marks omitted).

While this court must accept the plaintiff’s factual allegations as true, it is “not required

to accept legal conclusions or unwarranted factual inferences as true.” Crosby, 863 F.3d. at 552

(internal quotation marks omitted). And similarly, a “‘legal conclusion couched as a factual

allegation’ is not entitled to a presumption of truth.” Crawford, 15 F.4th at 762 (quoting Iqbal,

556 U.S. at 678).

B.

A municipality is not subject to § 1983 liability “for an injury inflicted solely by its

employees or agents.” Kovalchuk v. City of Decherd, 95 F.4th 1035, 1038 (6th Cir. 2024)

(quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). Instead, the municipality can

only be held liable “for [its] own illegal acts.” Id. (alteration in original) (quoting Connick v.

Thompson, 563 U.S. 51, 60 (2011)). So the plaintiff must show that an employee’s

unconstitutional conduct stems from a municipal “policy or custom.” Coleman v. Hamilton

Cnty. Bd. of Cnty. Comm’rs, 130 F.4th 593, 599 (6th Cir. 2025).

A policy or custom is broadly defined to include more than written rules. Id. It can also

include a policy of inaction. Franklin v. Franklin County, 115 F.4th 461, 472 (6th Cir. 2024)

(alterations omitted). To set forth a claim on this theory, the complaint must show

(1) the existence of a clear and persistent pattern of unconstitutional conduct; (2)

notice or constructive notice on the part of the municipality; (3) the municipality’s

tacit approval of the unconstitutional conduct, such that [its] deliberate

indifference in [its] failure to act can be said to amount to an official policy of

inaction; and (4) that the [municipality’s] custom was the moving force or direct

causal link in the constitutional deprivation.

Id. (alterations in original) (internal quotation marks omitted). The plaintiff cannot rely on a

single instance to show a pattern of unconstitutional conduct. Id.

A related but distinct basis for Monell liability is the municipality’s failure to train its

employees. J.H. v. Williamson County, 951 F.3d 709, 720–21 (6th Cir. 2020). To state a claim

under this theory, the complaint must allege that a “need for more or different training is so

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 16

obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent to the

need.” Id. at 721 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). Here, liability

can be established “based on a single violation of federal rights” when the plaintiff also shows

that the municipality’s failure to train “present[ed] an obvious potential for a constitutional

violation.” Id. (internal quotation marks omitted). But the plaintiff has the burden of showing

two layers of obviousness: “It must be obvious that the failure to train will lead to certain

conduct, and it must be obvious (i.e., clearly established) that the conduct will violate

constitutional rights.” Id. (internal quotation marks omitted).

Regardless of the asserted theory, our precedent shows that “[t]here can be no liability

under Monell without an underlying constitutional violation.” Chambers v. Sanders, 63 F.4th

1092, 1101–02 (6th Cir. 2023) (alteration in original) (quoting Robertson v. Lucas, 753 F.3d 606,

622 (6th Cir. 2014)). And if “no underlying rights violation [is] plausibly established in the[]

complaint, we [will] affirm the district court’s dismissal of [a] Monell claim.” Id. at 1102.

Similarly, when the complaint alleges municipal liability based on a policy of inaction or a

failure to train, “[t]he absence of a clearly established right spells the end of th[e] Monell claim.”

Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 995 (6th Cir. 2017) (emphasis added).

That’s because a policy of inaction relies on the municipality’s deliberate indifference. See

Franklin, 115 F.4th at 471. And “a municipality cannot deliberately shirk a constitutional duty

unless that duty is clear.” Arrington-Bey, 858 F.3d at 995. Likewise, a failure to train theory

requires it be obvious (i.e., clearly established) that the conduct violates a constitutional right.

J.H., 951 F.3d at 721. So both theories rely on a clearly established constitutional violation.

The lack of a clearly established constitutional violation alone “spells the end of [the

Martinez Family’s] Monell claim.” See Arrington-Bey, 858 F.3d at 995. They allege two

theories of liability. First, they claim Wayne County had a policy of “fail[ing] to supervise, train,

and/or discipline employees . . . as to their responsibility to notify Plaintiffs of Luis, Jr.’s death

and to deliver to Plaintiffs possession of his body.” R.13, Second Am. Compl., p.11, PageID 72.

Second, they claim that the municipality is liable for “[c]ondoning, approving, ratifying, and

acquiescing in known unconstitutional conduct, and known patterns of unconstitutional conduct,

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 17

undertaken by its employees.” Id. These are essentially the failure to train and policy of inaction

theories of liability. And both require a clearly established constitutional violation. See

Arrington-Bey, 858 F.3d at 995; J.H., 951 F.3d at 721. So for the reasons outlined above, both

fail.

The Martinez Family resists this conclusion by arguing that Arrington-Bey was wrongly

decided given Owen v. City of Independence, 445 U.S. 622 (1980), and Leatherman v. Tarrant

Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163 (1993). Whatever merit this argument

may have, “this circuit follows the rule that the holding of a published panel opinion binds all

later panels unless overruled or abrogated en banc or by the Supreme Court.” Freed v. Thomas,

976 F.3d 729, 738 (6th Cir. 2020) (internal quotation marks omitted). And while we are “not

bound by dictum” in prior opinions, the holding that a lack of a clearly established constitutional

violation dooms certain Monell claims was necessary for the outcome in Arrington-Bey, and so

was not dictum. Id.; Arrington-Bey, 858 F.3d at 995 (affirming because the plaintiff did not

show that the allegedly violated right was clearly established). So we are bound by that finding,

and dismiss the family’s Monell claim.

We also agree with the district court’s conclusion that, regardless of the lack of a clearly

established constitutional violation, the complaint fails also to state a plausible claim to relief

because it lacks sufficient factual allegations to support their Monell claim.

Let’s begin with the policy of inaction. The complaint concludes that Wayne County

“was on actual notice that Defendant [Schmidt], its official policymaker, had a history of failing

to promptly and compassionately notify next of kin of decedents’ deaths.” R.13, Second Am.

Compl., p.11, PageID 72. But there are no allegations about prior instances that would provide

actual notice of the failing that would support this conclusion. Similarly, the complaint says that

“as a matter of policy” Wayne County “condon[ed] and/or acquiesce[ed] in all Defendants’

unconstitutional deprivation[s]” and it was “known to” Wayne County that this acquiescence was

“highly likely and probable to cause violations of the constitutional rights of members of the

public.” Id. at pp.11–12, PageID 71–72. And that this “custom, policy and/or practice” “was a

moving force in the violations of Plaintiff’s constitutional rights.” Id.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 18

But this is just a “formulaic recitation of the elements of a Monell claim.” Savoie v. City

of E. Lansing, No. 21-2684, 2022 WL 3643339, at *6 (6th Cir. Aug. 24, 2022). And again, a

“‘legal conclusion couched as a factual allegation’ is not entitled to a presumption of truth.”

Crawford, 15 F.4th at 762 (quoting Iqbal, 556 U.S. at 678). So these statements cannot state a

plausible claim for relief. See id.

The complaint is similarly lacking on the failure-to-train theory. It asserts, in a single,

conclusory sentence, that the County maintained a policy or custom of “failure to supervise, train

and/or discipline employees . . . as to their responsibility to notify Plaintiffs of Luis, Jr.’s death

and to deliver to Plaintiffs possession of his body.” R.13, Second Am. Compl., p.11, PageID 72.

But again, there are no factual allegations to support this conclusion and the statement is just a

recitation of the elements of a Monell claim. So the complaint lacks sufficient facts to state a

plausible claim for relief and must be dismissed. See Kenjoh Outdoor, 23 F.4th at 692.

To make up for the lack of factual allegations in the complaint, the Martinez Family

requests that we “take judicial notice” of public reporting and an internal audit that allegedly

details a pattern of similar constitutional violations. Appellant Br. at 34–35. But this

information was not presented to the district court. And under Federal Rule of Appellate

Procedure 10, the record of appeal is made up of “(1) the original papers and exhibits filed in the

district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket

entries prepared by the district clerk.” Given this rule, “[t]his court is not required to enlarge the

record on appeal by taking judicial notice of extra-record facts for the first time.” United States

v. O’Dell, 805 F.2d 637, 643 (6th Cir. 1986).

While not required, we may take judicial notice of facts at our discretion. Id. Still, the

Federal Rules of Evidence generally limit judicial notice to facts that “can be accurately and

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R.

Evid. 201(b)(2). The Martinez Family puts forth articles from a variety of local news outlets, but

their accuracy cannot be readily determined. So it would be improper for us to take judicial

notice of these articles. Even more, the family essentially asks us to “take judicial notice of the

contents of these documents for the truth of the matters they assert”––their allegations of Wayne

County mishandling corpses and delaying notification to next of kin. Appellant Br. at 34–35;

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 19

Abu-Joudeh v. Schneider, 954 F.3d 842, 848 (6th Cir. 2020). When that occurs, it is “no

different than moving to supplement the record.” Abu-Joudeh, 954 F.3d at 848. And that is

generally only allowed when there is an omission or misstatement in the record that a party looks

to have corrected. Fed. R. App. P. 10(e)(2).

Declining to consider this evidence also aligns with the general principle that we “will

not entertain on appeal factual recitations not presented to the district court when reviewing a

district court’s decision.” Bormuth v. County of Jackson, 870 F.3d 494, 500 (6th Cir. 2017) (en

banc) (quoting Chicago Title Ins. Corp. v. Magnuson, 487 F.3d 985, 995 (6th Cir. 2007)). This

principle seems especially salient when reviewing a motion to dismiss because the district court

cannot consider matters beyond the complaint without converting the motion to dismiss into a

motion for summary judgment. Kostrzewa v. City of Troy, 247 F.3d 633, 643 (6th Cir. 2001).

The narrow exception to that rule is that a district court “may consider public records” in

deciding a motion to dismiss without turning it to a motion for summary judgment. Id. at 645.

But that exception is not relevant here because the information put forward is neither a public

record nor something the district court considered.

Still, this court has acknowledged that it can depart from the general bar on considering

evidence presented for the first time on appeal when, in its discretion, it finds “injustice might

otherwise result.” In re Eagle Picher Indus., Inc., 131 F.3d 1185, 1189 (6th Cir. 1997) (quoting

Singleton v. Wulff, 428 U.S. 106, 121 (1976)). But even if we considered the articles here to

establish that the municipality was aware of a pattern of unconstitutional conduct, it would not

cure the complaint’s other deficiencies. The complaint still presents no factual allegations

showing that the municipality approved of this unconstitutional conduct or that a custom of such

approval was “the moving force” behind the constitutional violation at issue. See Franklin, 115

F.4th at 471. Nor would judicial notice of these articles solve the complaint’s failure to put forth

facts alleging a “need for more or different training [that] is so obvious . . . that the policymakers

of the city can reasonably be said to have been deliberately indifferent to the need.” J.H., 951

F.3d at 721. And finally, there is the lack of a clearly established constitutional violation. So

judicial notice is not proper. We affirm the district court’s dismissal the family’s Monell claim.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 20

IV.

The Martinez Family undeniably faced a tragic loss made worse by the county’s

response. But they have not alleged a clearly established constitutional violation, which dooms

their claims. For that reason, we affirm.

No. 24-1474 Martinez, et al. v. Wayne Cnty, Mich., et al. Page 21

_________________

CONCURRENCE

_________________

MATHIS, Circuit Judge, concurring in part and concurring in judgment. I join Parts I, II,

III(A), and IV of the majority opinion in full. And I join Part III(B) of the majority opinion to

the extent it holds that the Martinez Family has failed to plead sufficiently their Monell liability

claim. I thus would not reach the question of whether the Martinez Family’s Monell claim can

survive without their due-process claim.