Smith et al v. Berger et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLA SMITH, et al.,
Plaintiffs, 	Hon. Robert J. Jonker
v. 	Case No. 1:25-cv-1133
BRIAN S. BERGER, et al.,
Defendants.
_________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiffs’ Motion for Emergency Temporary
Restraining Order. (ECF No. 21). Pursuant to 28 U.S.C. § 636(b)(1)(B), the
undersigned recommends that Plaintiffs’ motion be denied.
Plaintiffs initiated this action against several individuals as well as a private law
firm. Plaintiffs’ complaint (ECF No. 1) is thin on specifics but this much is clear. The
Berrien County Family Court recently made decisions involving a child with which
Plaintiffs disagree. Plaintiffs previously moved the Court to order that an individual,
presumably the child referenced in their complaint, be placed in the custody of one of
three people. (ECF No. 8). The Court denied this request on various grounds. (ECF
No. 9, 14).
Plaintiffs now move the Court to “grant an emergency TRO to be placed to protect
the integrity of this proceeding and not allow any further irrefutable harm and injury to
the plaintiff’s and minor handicapped child ERSV.” (ECF No. 21, PageID.97). While
Case 1:25-cv-01133-RJJ-PJG ECF No. 34, PageID.<pageID> Filed 01/07/26 Page 1
of 3

2
Plaintiffs’ dissatisfaction with the actions and/or inactions of various state and local
officials is palpable, it is unclear precisely what action Plaintiffs are presently requesting
the Court take. Regardless, Plaintiffs have failed to demonstrate that entry of a
temporary restraining order is appropriate.
The decision to grant or deny a temporary restraining order (TRO) falls within the
Court’s discretion. See Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir.
2008). Pursuant to Federal Rule of Civil Procedure 65, the Court may order injunctive
relief, without notice to the adverse party, only if two conditions are satisfied.1 FED. R.
CIV. P. 65(b)(1). First, Plaintiffs must present “specific facts in an affidavit or verified
complaint” which “clearly show that immediate and irreparable injury, loss, or damage
will result to [Plaintiffs] before the adverse party can be heard in opposition.” FED. R.
CIV. P. 65(b)(1)(A). Second, Plaintiffs must certify in writing “any efforts made to give
notice [to Defendants] and the reasons why it should not be required.” FED. R. CIV. P.
65(b)(1)(B). Plaintiffs have failed to satisfy either requirement.
The Court is not unsympathetic to Plaintiffs’ allegations or concerns, however, the
Court simply cannot intervene in this matter on the present record. Accordingly, the
undersigned recommends that Plaintiffs’ motion be denied. The undersigned further
recommends that the present motion (ECF No. 21) be stricken from the record on the
ground that it contains photographs of a child whose identity has not been sufficiently
shielded.
1 Plaintiffs, who have not been approved to file electronically, have failed to demonstrate
that the present motion was properly served on Defendants.
Case 1:25-cv-01133-RJJ-PJG ECF No. 34, PageID.<pageID> Filed 01/07/26 Page 2
of 3

3
CONCLUSION
Accordingly, the undersigned recommends that Plaintiffs’ Motion for Emergency
Temporary Restraining Order (ECF No. 21) be denied. The undersigned further
recommends that the present motion (ECF No. 21) be stricken from the record.
OBJECTIONS to this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of the date of service of this notice. 28 U.S.C.
§ 636(b)(1)(C). Failure to file objections within the specified time waives the right to
appeal the District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir.1981).
Respectfully submitted,
Date: January 7, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
Case 1:25-cv-01133-RJJ-PJG ECF No. 34, PageID.<pageID> Filed 01/07/26 Page 3
of 3