Herman #749529 v. Michigan State Police et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
DALE RICKY HERMAN #749529, 	Case No. 	2:25-cv-124
Plaintiff, 	Hon. 	Robert J. Jonker
U.S. District Judge
v.
MICHIGAN STATE POLICE, et al.,
Defendants.
/
REPORT AND RECOMMENDATION
I. 	Introduction
This Report and Recommendation (R. & R.) addresses Defendants’ motions to
dismiss Plaintiff’s amended complaints. 	ECF Nos. 28, 31.
On June 2, 2025, Plaintiff Dale Rickey Herman filed a civil complaint under
42 U.S.C. § 1983 alleging that the Michigan State Police (“MSP”), State Trooper
Meyering, and Child Protective Services (“CPS”) employee Joy Swanson violated his
Fourth Amendment rights when they entered his home on September 11, 2021. 	ECF
No. 1. 	Plaintiff filed an amended complaint on October 14, 2025, alleging the same.
ECF No. 27.
Defendants argue that Plaintiff’s amended complaint should be dismissed for
a number of reasons, including: (1) Plaintiff’s claims are time barred; (2) Plaintiff fails
to state an actionable Fourth Amendment claim; (3) Plaintiff fails to state a claim
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against Swanson, and (4) the Eleventh Amendment bars Plaintiff’s claims against
MSP and Swanson. 	Plaintiff has not filed a response to Defendants’ motions.
In the opinion of the undersigned, Plaintiff’s § 1983 claim is barred by the
three-year statute of limitations. 	Thus, the undersigned does not engage in analysis
of Defendants’ other arguments below. 	The undersigned respectfully recommends
that the Court grant Defendants’ motions to dismiss.
II. 	Factual Allegations
In his amended complaint, Herman asserts that CPS worker Swanson, Trooper
Meyering, and non-defendant Trooper Kiscaiden responded to his home in Palmer,
MI, on September 11, 2021. 	ECF No. 27, PageID.120. 	Herman claims Defendants
responded to a complaint about Herman’s employee, Ben Wolfe. 	Id. 	Herman
alleges that he met Defendants outside of the home and told them that he would go
inside to get Wolfe. 	Id. 	Herman asserts that Defendants followed him into the
home without a warrant or consent, and searched the home for “Mr. Wolfe, drugs,
money or guns.” 	Id. 	Next, Herman says that Defendants found Mr. Wolfe in the
basement and removed “evidence” of suspected meth. 	Id. 	Herman asserts that
Trooper Kiscaiden did not enter the home and can be heard on video stating “we got
a problem…P.C. (probable cause), should have got a search warrant.” 	Id.
III. 	Motion to Dismiss Standard
The Federal Rules provide that a claim may be dismissed for “failure to state
a claim upon which relief can be granted.” 	Fed. R. Civ. P. 12(b)(6). 	To survive a
Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted
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as true, to state a claim for relief that is plausible on its face.” 	Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). 	Put differently, if plaintiffs
do “not nudge[] their claims across the line from conceivable to plausible, their
complaint must be dismissed.” 	Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
In determining whether a claim has facial plausibility, a court must construe
the 	complaint 	in 	the 	light 	most 	favorable 	to 	the 	plaintiff, 	accept 	the 	factual
allegations as true, and draw all reasonable inferences in favor of the plaintiff.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). Those
factual allegations “must contain either direct or inferential allegations respecting all
the material elements to sustain recovery under some viable legal theory.” 	League
of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (internal
citations omitted). “When a court is presented with a Rule 12(b)(6) motion, it may
consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion so
long as they are referred to in the Complaint and are central to the claims contained
therein.” 	Id.
“[D]ismissal of the plaintiff’s claim is appropriate when ‘the allegations in the
complaint affirmatively show that the claim is time-barred.’” Wershe v. City of Detroit,
Michigan, 112 F.4th 357, 364–65 (6th Cir. 2024), cert. denied sub nom. Wershe v. City
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of Detroit, 145 S. Ct. 1128, 220 L. Ed. 2d 422 (2025) (quoting Baltrusaitis v. Int’l
Union, United Auto., Aerospace & Agric. Implement Workers, 86 F.4th 1168, 1178 (6th
Cir. 2023).
Plaintiff is proceeding pro se. 	As such, his pleadings are subject to less
stringent standards than those prepared by attorneys. 	Estelle v. Gamble, 429 U.S.
97 (1976); Haines v. Kerner, 404 U.S. 519 (1972).
IV. 	Analysis
State statutes of limitations and tolling principles apply to determine the
timeliness of claims asserted under 42 U.S.C. § 1983. 	Wilson v. Garcia, 471 U.S.
261, 268 69 (1985). 	For civil rights suits filed in Michigan under § 1983, the statute
of limitations is three years. 	Mich. Comp. Laws § 600.5805(2); Carroll v. Wilkerson,
782 F.2d 44, 44 (6th Cir. 1986) (per curiam); Stafford v. Vaughn, No. 97-2239, 1999
WL 96990, at *1 (6th Cir. Feb. 2, 1999). 	Accrual of the claim for relief, however, is
a question of federal law. 	Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996); Sevier
v. Turner, 742 F.2d 262, 272 (6th Cir. 1984). 	The statute of limitations begins to run
when the aggrieved party knows or has reason to know of the injury that is the basis
of his action. 	Collyer, 98 F.3d at 220.
Here, Herman asserts that Defendants violated his Fourth Amendment rights
by improperly searching his home on September 11, 2021. 	ECF No. 27, PageID.120.
Herman knew of the alleged harms at the time they occurred. 	Id. (alleging that
Plaintiff heard another Trooper saying that there was an issue with probable cause
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to search). 	However, he did not file this action until June 2, 2025 – over three years
and eight months later. 	Thus, Plaintiff’s § 1983 claim is on its face untimely.
A statute of limitations may, of course, be tolled by certain events. 	“[T]he
doctrine of equitable tolling permits a court to pause the statute of limitations when
some significant impediment beyond the plaintiff’s control prevented the plaintiff
from filing a timely action.” 	Wershe, 112 F.4th at 364. 	Plaintiff has the burden of
establishing his entitlement to equitable tolling. 	Jackson v. United States, 751 F.3d
712, 718 (6th Cir. 2014). 	However, equitable tolling is not available here because
Michigan law governs limitations periods. 	See Bozzo v. Nanasy, 159 F.4th 1111,
1118 (6th Cir. 2025) (noting that Michigan law does not permit common law equitable
tolling of express limitations periods); Wershe, 112 F.4th at 371 (stating that because
“claims are governed by Michigan’s express three-year statute of limitations for
personal-injury claims, Mich. Comp. Laws § 600.5805(2), equitable tolling appears to
be unavailable under Michigan law”).
Here, Plaintiff did not respond to Defendants’ motions. 	The undersigned sees
no reason to conclude that equitable or statutory tolling principles might apply. 	The
undersigned concludes that Herman’s claim is facially untimely and no exception to
Michigan’s 3-year statute of limitations applies.
V. 	Recommendation
As set forth above, Plaintiff filed this action over eight months past the statute
of limitations expired. 	Accordingly, the undersigned respectfully recommends that
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the Court grant Defendants’ motions to dismiss, ECF Nos. 28, 31, and dismiss the
case.
Dated: 	April 22, 2026 	/s/ `ttÜàxÇ ixÜÅttà
MAARTEN VERMAAT
U.S. MAGISTRATE JUDGE
NOTICE TO PARTIES
Any objections to this Report and Recommendation must be filed and served within
fourteen days of service of this notice on you. 	28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b). 	All objections and responses to objections are governed by W.D. Mich.
LCivR 72.3(b). 	Failure to file timely objections may constitute a waiver of any
further right of appeal. 	United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see
Thomas v. Arn, 474 U.S. 140 (1985).
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