Smith et al v. Berger et al

-1-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHELLA SMITH, et al.,
Plaintiff, 	Hon. Robert J. Jonker
v. 	Case No. 1:25-cv-1133
BRIAN S. BERGER, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
Plaintiffs Michella Smith and Jamie Vermilyer initiated this action in pro per
under 42 U.S.C. § 1983 against the Honorable Brian S. Berger, Berrien County Family
Court Judge; Richard Racht, Berrien County Assistant Prosecuting Attorney; Attorney
Marikaye Long; Attorney Ryan Funk; and the law firm Duncan & Associates, PLLC
(“the Duncan Law Firm”). (ECF No. 1). The cryptic allegations in the complaint are
difficult to decipher, but Plaintiffs appear to be complaining about child-welfare
proceedings involving a third-party—an unnamed disabled child—in the Berrien
County Family Court.
This matter is before the Court on Defendants’ various motions to dismiss:
Attorney Funk and the Duncan Law Firm’s motion to dismiss (ECF No. 10); Attorney
Long’s motion to dismiss (ECF No. 15); and Judge Berger and Assistant Prosecutor
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 1
of 7

-2-
Racht’s motions to dismiss (ECF No. 36, 37). 1 Plaintiff filed a single, combined
response to all the motions (ECF 42), and Defendant Long filed a reply (ECF No. 49).
Defendants advance essentially the same arguments, including that Plaintiffs
lack Article III standing and that, for various reasons, the complaint fails to state a
cognizable claim. Inasmuch as Plaintiffs fail to establish standing to bring this case,
the undersigned judicial officer recommends that the Court dismiss the complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(1), for lack of subject-matter
jurisdiction. In the alternative, the undersigned recommends that the Court dismiss
the complaint, pursuant to Rule 12(b)(6), for failure to state a claim.
LEGAL STANDARDS
A. Motions to Dismiss for Lack of Subject Matter Jurisdiction
If a Rule 12(b)(1) challenge is asserted to the Court’s subject matter jurisdiction,
“the plaintiff has the burden of proving jurisdiction in order to survive the motion.”
Houchens v. Beshear, 850 Fed. Appx. 340, 342 (6th Cir. 2021). Moreover, the Court
“must” consider a jurisdictional challenge first because Defendants’ other arguments for
relief are moot if the Court lacks jurisdiction. Ibid.
“Federal courts are courts of limited jurisdiction. They possess only that power
authorized by Constitution and statute, which is not to be expanded by judicial decree.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations
1 Defendants Berger and Racht appear to have filed duplicate motions.
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 2
of 7

-3-
omitted). A cause of action is presumed to fall outside federal court jurisdiction, unless
such jurisdiction is established by the party asserting it. Id. Article III of the
Constitution limits federal jurisdiction to “cases and controversies,” and standing is “an
essential and unchanging part of” this requirement. Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992).
B. 	Motions to Dismiss for Failure to State a Claim
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if it
fails “to give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint need not contain detailed factual
allegations, a plaintiff’s allegations must include more than labels and conclusions. Id.;
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.”). The court
must determine whether the complaint contains “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570.
A claim is facially plausible “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 679. Although this standard is not equivalent to a
“ ‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 3
of 7

-4-
misconduct, the complaint has alleged—but it has not ‘show[n]’—that the pleader is
entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “While pro se pleadings
are ‘to be liberally construed’ and are ‘held to less stringent standards than formal
pleadings drafted by lawyers,’ pro se plaintiffs must still satisfy basic pleading
requirements.” Edwards v. University of Dayton, 142 F. Supp.3d 605, 607 (S.D. Ohio
Sept. 15, 2015) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
The burden to obtain relief under Rule 12(b)(6) rests with the defendant. See,
e.g., DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Court must
“construe the complaint in the light most favorable to the plaintiff, accept its allegations
as true, and draw all reasonable inferences in favor of the plaintiff.” Ibid. A motion to
dismiss “should not be granted unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of [her] claim which would entitle [her] to relief.” Ibid.
ANALYSIS
I. 	Plaintiffs Lack Standing to Bring a Cause of Action on Behalf of the
Disabled Child that Was the Subject of the Family Court
Proceedings.
To establish standing, Plaintiffs must show, at a minimum, three things: (1) that
they suffered an “injury in fact”—“an invasion of a legally protected interest” that is both
“concrete and particularized” and “actual or imminent,” rather than “conjectural” or
“hypothetical”; (2) “there must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly . . . trace[able] to the challenged action of the
defendant’ ”; and (3) “it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 4
of 7

-5-
will be ‘redressed by a favorable decision.’ ” Id. at 560-61. Plaintiffs bear the burden
of establishing each element of standing. Id. at 561.
The complaint is largely indecipherable. Plaintiffs appear to complain about the
treatment “a disabled child who is nonverbal” received from the Berrien County Family
Court. (ECF No. 1, PageID.4). But there is nothing in the complaint to suggest how
Plaintiffs have suffered an injury in fact that is traceable to the actions of any of the
named Defendants. In response to Defendants’ motions to dismiss, Plaintiffs argue that
they have standing because they “have a personal stake in the lawsuit thus providing
that the injury is traceable, not speculative.” (ECF No. 42, PageID.209). Such a
conclusory statement would be insufficient to establish standing, even if it were
contained in the complaint.
Plaintiffs also fail to indicate in the complaint what, if any, relationship they have
to this disabled child; much less, do they set forth any legal basis for bringing a cause of
action on behalf of the child.2 Regardless of any paternal or other relationship with this
child, however, as pro se litigants, Plaintiffs cannot represent the interests of that child
in court. See Olagues v. Timken, 908 F.3d 200, 203 (6th Cir. 2018) (“plaintiffs in federal
court may not ‘appear pro se where interests other than their own are at stake.’ ”).
“ ‘The rule against non-lawyer representation protects the rights of those before the court
by preventing an ill-equipped layperson from squandering the rights of the party he
2 In their response to the motions to dismiss, Plaintiffs mention that the disabled child
is their minor daughter. (See ECF No. 42, PageID.206).
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 5
of 7

-6-
purports to represent.’ ” Id. (quoting Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir.
2015)); cf. 28 U.S.C. § 1654 (“In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.” (emphasis added)).
Having failed to establish standing, Plaintiffs’ complaint should be dismissed for
lack of subject matter jurisdiction.
II. 	The Complaint Otherwise Fails to State a Cognizable Claim.
Rule 8 requires that a complaint include a “short and plain statement of the claim
showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The purpose of
this requirement is to ensure that a defendant has “fair notice of what the claim is and
the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957).
Despite indulgent review of the complaint, the undersigned finds Plaintiffs’ claims
to be unintelligible. The following is the complete statement of their claims:
Berrien County Family Court used/allowed another agency’s authority
to accomplish their goals. A wrongful arrest caused court then the
court social workers beat & caused great bodily injury to a disabled child
who is nonverbal—photos of injury’s [sic] were kept out of court
/testimony. The injured child was denied a physician at time of burns
& bruises—Judge denied federal proceedings—social workers lied under
oath disobeying federal instructions. Hearing closing out without
federal investigation—alt evidence is being rejected. Social worker
code of ethics—kept out of court then punished. Victim witnessed
police smoking methamphetamine and cocaine then told to leave town
or be punished.
(ECF No. 1, PageID.4).
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 6
of 7

-7-
This falls well short of satisfying Rule 8(a), as well as the minimum requirements
articulated in Twombly and Iqbal. See 550 U.S. at 555; 556 U.S. at 678. Plaintiffs fail
to articulate which Defendant did what to whom. As such, the complaint fails to plead
facts that would allow the court to draw a reasonable inference that any of the named
defendants is liable for the misconduct alleged. Cf. Iqbal, 556 U.S. at 679.
Given the manifest deficiencies in the complaint, the Court need not address the
various other arguments raised in Defendants’ motions. Should the Court find that it
has subject matter jurisdiction over this case, the undersigned recommends that the
complaint be dismissed for failure to state a claim.
CONCLUSION
For the reasons articulated herein, the undersigned judicial officer recommends
that Defendants’ motions to dismiss (ECF No. 10, 15, 36, 37) be granted and the case
dismissed with prejudice.
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: August 24, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
Case 1:25-cv-01133-RJJ-PJG ECF No. 63, PageID.<pageID> Filed 08/24/26 Page 7
of 7