Askew #248480 v. Berrien, County of et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
COREY ASKEW, #248480,
Plaintiff, 	Hon. Robert J. Jonker
v. 	Case No. 1:24-cv-1010
COUNTY OF BERRIEN, et al.,
Defendants.
____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Summary Judgment.
(ECF No. 42). Pursuant to 28 U.S.C. § 636(b)(1)(B), the undersigned recommends that
Defendants’ motion be granted in part, denied without prejudice in part, and this action
terminated.
BACKGROUND
This case results from Plaintiff’s repeated refusal, following his arrest,1 to allow
law enforcement personnel to record his photograph and fingerprints.
Plaintiff is presently incarcerated with the Michigan Department of Corrections
(MDOC) at the Ionia Correctional Facility (ICF). The events giving rise to this action,
however, occurred at the Berrien County Jail (BCJ) where Plaintiff was confined as a
1 Plaintiff does not challenge the legality of his arrest.
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pretrial detainee. Plaintiff initiated this action against: (1) Berrien County; (2) Sheriff
Paul Bailey; (3) Lieutenant Cory Burkes; (4) Lieutenant Scott Kuhl; (5) Lieutenant Erin
Kuhl; (6) Lieutenant Unknown Hyun; (7) Sergeant/Lieutenant/Captain Celina Herbert;
(8) Sergeant/Lieutenant Nicholas Margo; (9) Sergeant/Lieutenant Unknown O’Brien;
(10) Sergeant J. Will; (11) Deputy Cody Phillips; (12) Deputy Unknown Dipert;
(13) Deputy Unknown Helfman; (14) Deputy J. Tarnowski; (15) Deputy Meagan
Rankin; (16) Deputy Unknown Carl; and (17) eighteen Unidentified Parties. (ECF
No. 1).
Plaintiff alleged that Defendants’ conduct violated: (1) the Fourth Amendment;
(2) the Eighth Amendment; (3) the Fourteenth Amendment; (4) Article I, § 8, clause 10,
and Article 6, clause 2, of the United States Constitution; (5) the United States
Congressional Act under the International Human Rights Conformity Act; (6) the
United Nations Universal Declaration of Human Rights; (7) the United Nations
International Covenant on Civil and Political Rights; (8) the United Nations
Declaration on the Protection of All Persons from Being Subjected to Torture and Other
Cruel, Inhumane or Degrading Treatment or Punishment; and (9) Organization of
American States American Declaration of the Rights and Duties of Man.
Most of Plaintiff’s claims were dismissed on screening. (ECF No. 11-12). At
this juncture, only the following claims remain: Plaintiff’s Fourth and Fourteenth
Amendment claims for monetary damages against Defendants Berrien County, Bailey,
Burkes, Herbert, Margo, Scott Kuhl, Erin Kuhl, Will, Phillips, Dipert, Helfman, Hyun,
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Tarnowski, and Unknown Parties, #1, #2, #4, and #5 through #15. (ECF No. 11,
PageID.228). Defendants Berrien County, Bailey, Burkes, Herbert, Margo, Scott
Kuhl, Erin Kuhl, Will, Phillips, Dipert, Helfman, Hyun, Tarnowski now move for
summary judgment. Plaintiff has responded to the motion. The Court finds that oral
argument is unnecessary. See W.D. MICH. LCIVR 7.2(d).
LEGAL STANDARD
I. 	Failure to State a Claim
A claim must be dismissed for failure to state a claim on which relief may be
granted unless the “[f]actual allegations [are] enough to raise a right for relief above the
speculative level on the assumption that all of the complaint’s allegations are true.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). As the Supreme Court has
held, to avoid dismissal, a complaint must contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). This plausibility standard “is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” If the complaint simply 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.’ ” Id. As the Court further observed:
Two working principles underlie our decision in Twombly.
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice. . .Rule 8 marks a notable and generous departure from
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the hyper-technical, code-pleading regime of a prior era, but it
does not unlock the doors of discovery for a plaintiff armed
with nothing more than conclusions. 	Second, only a
complaint that states a plausible claim for relief survives a
motion to dismiss. . .Determining whether a complaint states
a plausible claim for relief will, as the Court of Appeals
observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. But where the well pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not “show[n]”—“that the
pleader is entitled to relief.”
Id. at 678-79 (internal citations omitted).
II. 	Summary Judgment
Summary judgment “shall” be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). Whether a fact is “material” depends on “whether
its resolution might affect the outcome of the case.” Harden v. Hillman, 993 F.3d 465,
474 (6th Cir. 2021).
A party moving for summary judgment can satisfy its burden by demonstrating
that the non-moving party, “having had sufficient opportunity for discovery, has no
evidence to support an essential element of his or her case.” Minadeo v. ICI Paints, 398
F.3d 751, 761 (6th Cir. 2005). Once the moving party makes this showing, the non-
moving party “must identify specific facts that can be established by admissible evidence,
which demonstrate a genuine issue for trial.” Amini v. Oberlin College, 440 F.3d 350,
357 (6th Cir. 2006). The existence of a mere “scintilla of evidence” in support of the non-
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moving party’s position, however, is insufficient. Daniels v. Woodside, 396 F.3d 730,
734-35 (6th Cir. 2005).
While the Court must view the evidence in the light most favorable to the non-
moving party, that party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Amini, 440 F.3d at 357. The non-moving
party “may not rest upon [his] mere allegations,” but must instead present “significant
probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon
Corp., 434 F.3d 810, 813-14 (6th Cir. 2006). Likewise, the non-moving party cannot
merely “recite the incantation, ‘credibility,’ and have a trial on the hope that a jury may
disbelieve factually uncontested proof.” Fogerty v. MGM Group Holdings Corp., Inc.,
379 F.3d 348, 353-54 (6th Cir. 2004).
Accordingly, summary judgment is appropriate “against a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Daniels, 396 F.3d
at 735. Stated differently, the “ultimate question is whether the evidence presents a
sufficient factual disagreement to require submission of the case to the jury, or whether
the evidence is so one-sided that the moving parties should prevail as a matter of law.”
Harden, 993 F.3d at 474.
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ANALYSIS
I. 	Fourth Amendment Claims
In his complaint, Plaintiff alleges that, between March 18, 2022 and January 20,
2023, he was “subjected to continuous 24/7 in cell video camera surveillance monitoring
by male and female deputies and had to perform private bodily functions daily as a
result.” (ECF No. 1, PageID.13). Plaintiff further alleges that he had to perform bodily
functions and shower “in the presence of male and female detainees, deputies[,] and
administrative staff” because the booking/receiving area cells “all contained a glass wall
with a direct view inside the cell.” Id. Finally, Plaintiff alleges that, on July 28, 2022,
he was subjected to a strip search and anal cavity search in the presence of other BCJ
detainees and male and female deputies. (ECF No. 1, PageID.14).
Plaintiff’s allegations fail, however, to identify any individual who allegedly
participated in these events, or who was otherwise responsible for violating his rights.
This is fatal to Plaintiff’s claims, as it is well understood that Plaintiff must allege
personal involvement by those he claims violated his rights. See, e.g., Pineda v.
Hamilton County, Ohio, 977 F.3d 483, 490 (6th Cir. 2020). While there exists an
exception to this general rule, Plaintiff has failed to allege facts (or present evidence)
sufficient to satisfy such.
For example, if a plaintiff is unable to “identify clearly which [individuals]
committed specific acts during [an] incident,” but has identified a “small group” of
individuals, all of whom “committed allegedly unconstitutional acts within each other’s
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presence,” such may be sufficient to defeat a motion for summary judgment. Id. at 492-
93. Plaintiff has failed to identify anyone who was allegedly involved in or responsible
for the events in question. Moreover, Plaintiff has failed to allege or demonstrate that
“circumstances beyond [his] control” prevented him from identifying the individuals in
question. Id. at 493. Accordingly, to the extent Defendants move for summary
judgment on Plaintiff’s Fourth Amendment claims, the undersigned recommends that
Defendants’ motion be denied without prejudice and Plaintiff’s Fourth Amendment
claims instead be dismissed for failure to state a claim.
II. 	Fourteenth Amendment
A. 	Conditions of Confinement
Plaintiff alleges that Defendants subjected him to unconstitutional conditions of
confinement. As the Court previously noted, because Plaintiff was a pretrial detainee
when the events in question allegedly occurred, his claims are analyzed under the
Fourteenth Amendment rather than the Eighth Amendment.
Because pretrial detainees have not been convicted and, therefore, cannot be
“punished,” the Fourteenth Amendment requires a slightly lesser showing than the
Eighth Amendment. A plaintiff need only show that the defendant acted with
recklessness, described as “more than negligence but less than subjective intent –
something akin to reckless disregard.” Mercer v. Athens County, Ohio, 72 F.4th 152,
161 (6th Cir. 2023). Stated differently, a plaintiff must demonstrate that the defendant
“acted deliberately (not accidentally), and also recklessly in the face of an unjustifiably
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high risk of harm that is either known or so obvious that it should be known.” Greene
v. Crawford County, Michigan, 22 F.4th 593, 606 (6th Cir. 2022). This modified analysis
applies to conditions of confinement claims analyzed under the Fourteenth Amendment.
See, e.g., Passarelli v. Stephenson, 2023 WL 7144571 at *4-5 (W.D. Mich., Oct. 31, 2023).
Furthermore, the Court must “consider each defendant individually because we cannot
impute knowledge from one defendant to another.” Mercer, 72 F.4th at 161.
Plaintiff alleges that, between March 25, 2022, and June 24, 2022, Defendants
Bailey, Burkes, Herbert, Magro, Scott Kuhl, Erin Kuhl, Will, and Hyun denied his
requests for a mattress/bedding and to be transferred to general population. (ECF
No. 1, PageID.8 at ¶ 6). Plaintiff next alleges that on April 12, 2022, Defendant
Tarnowski confiscated his toilet paper and subjected him to a toilet paper restriction for
6-7 weeks. (ECF No. 1, PageID.8 at ¶ 7). Finally, Plaintiff alleges that on June 24,
2022, Defendants Will and Herbert disregarded a nurse’s order to provide P with a
mattress, blankets, towels, and a shower. (ECF No. 1, PageID.8 at ¶ 8).
Plaintiff can demonstrate in one of two ways that the conditions of which he
complains constituted unconstitutional punishment: (1) by establishing that Defendant
expressed an intent to punish or (2) by showing that a restriction or condition he
experienced was not rationally related to legitimate penological purpose or was excessive
in relation to that purpose. See J.H. v. Williamson County, Tennessee, 951 F.3d 709,
717 (6th Cir. 2020). Plaintiff has presented no evidence regarding the first prong. As
for the second prong, the evidence presented by Defendants demonstrates that the
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conditions about which Plaintiff is complaining were rationally related to a legitimate
penological purpose and were not excessive in relation thereto.
On March 23, 2022, a judicial order was entered mandating that Plaintiff be taken
into custody so that his fingerprints could be recorded. (ECF No. 47-2, PageID.523).
Plaintiff concedes that, from March 23, 2022, through July 28, 2022, he refused to allow
anyone to take his photograph or record his fingerprints.2 (ECF No. 47-5, PageID.537).
All new detainees at the Berrien County Jail (BCJ) are required to complete BCJ’s
booking process. (ECF No. 47-6, PageID.540-41). This process is, in part, designed to
“positively identify the new inmate, screen for any health needs or risks, and minimize
the risk of any. . .harm to the new inmate as well as the general jail population and staff.”
(ECF No. 47-6, PageID.541). Following arraignment, all inmates must “be dressed out,”
which “involves the removal and documentation of the inmate’s civilian clothes, a strip
search, and issuance of a jail uniform.” Id. Plaintiff refused to participate in this
process. Id. Because Plaintiff “refused to complete the booking procedures and dress
out, he was kept in BCJ’s booking/receiving cells where all new inmates are housed prior
to being admitted into the general jail population.” Id.
During this time, Plaintiff also engaged in “numerous acts of assaultive disruptive
behavior” including one instance in which he “defecated in his lunch bag and threw it at
another inmate.” Id. As a result of this behavior, Plaintiff’s “normal food allowance
2 Plaintiff was subsequently convicted of two counts of Refusal to Fingerprint. (ECF
No. 47-5, PageID.538).
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was replaced with a loaf” which “consist[ed] of the exact same ingredients as other
inmate’s meals, pureed and molded [i]nto the shape of a loaf.” (ECF No. 47-6,
PageID.541-42). Plaintiff was provided bedding and toilet paper but both were
confiscated after Plaintiff “ignored repeated instructions” to not use these items to “cover
the windows of his cell.” (ECF No. 47-10, PageID.557-58).
The circumstances and/or deprivations that Plaintiff experienced were reasonable
responses to Plaintiff’s repeated recalcitrance and disobedience that did not violate
Plaintiff’s rights. See, e.g., Cox v. Nord, No. 1:23-CV-324, 2023 WL 6276198 at *6 (S.D.
Ohio., Sept. 26, 2023) (where pretrial detainee experienced a “short-term” deprivation of
a mattress, such did not violate the Fourteenth Amendment); Griffin v. Womack, No. No.
1:12CV-P195-R, 2013 WL 28669 at *4 (W.D. Ky., Jan. 2, 2013) (“short term deprivations
of toilet paper, towels, sheets, blankets, mattresses, toothpaste, toothbrushes and the
like” do not violate a pretrial detainee’s rights); Vandevelde v. Monroe County Jail, No.
4:25-cv-10140, 2025 WL 360649 at *2-3 (E.D. Mich., Jan. 31, 2025) (placing pretrial
detainee in segregation does not rise to the level of constitutional violation, likewise
“denial of shower and other personal hygiene items for limited period was not
actionable”).
Accordingly, the undersigned finds that Defendants Bailey, Burkes, Herbert,
Magro, Scott Kuhl, Erin Kuhl, Will, Hyun, and Tarnowski are entitled to summary
judgment as to Plaintiff’s conditions of confinement claims identified above.
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Plaintiff also articulated several conditions of confinement claims that must be
dismissed. In his complaint, Plaintiff articulates his conditions of confinement claims
in paragraphs six through thirteen. (ECF No. 1, PageID.8-9). The only allegations in
these paragraphs asserted against an identified individual are those in paragraphs six
through eight discussed immediately above. The allegations in paragraphs nine
through thirteen, however, fail to identify any individual who allegedly violated
Plaintiff’s rights. Accordingly, to the extent Defendants move for summary judgment
as to such claims, the undersigned recommends that Defendants’ motion be denied
without prejudice and such claims instead be dismissed for failure to state a claim.
B. 	Use of Excessive Force
Plaintiff’s allegations of excessive force are contained in paragraphs fourteen
through eighteen of his complaint. (ECF No. 1, PageID.10-11). Specifically, Plaintiff
alleges that he was twice subjected to excessive force on July 28, 2022.
1. 	Use of Excessive Force During a Search
Regarding the first incident, Plaintiff alleges the following. On July 28, 2022,
several Defendants entered Plaintiff’s cell and informed him that if he did not “submit
his fingerprints and mugshots he would be forced to.” (ECF No. 1, PageID.10).
Plaintiff refused to comply after which he was subjected to a strip search and anal cavity
search in the presence of numerous inmates and deputies, including at least three female
deputies. Id. Plaintiff alleges that this search was accomplished through the use of
excessive force. Id. Plaintiff fails, however, to identify the individual(s) who allegedly
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subjected him to excessive force. Accordingly, to the extent Defendants move for
summary judgment on these claims, the undersigned recommends that Defendants’
motion be denied without prejudice and such claims instead be dismissed for failure to
state a claim.
2. 	Use of Excessive Force During Photographing and Fingerprinting
With respect to the second incident, Plaintiff alleges the following. On July 28,
2022, following the search discussed immediately above, Plaintiff was escorted to “the
receiving/booking mugshot/fingerprint room.” (ECF No. 1, PageID.10). Defendants
Scott Kuhl, Magro, Phillips, Dipert, and Helfman then employed excessive force in an
attempt to obtain a mugshot photograph of Plaintiff. Id. Specifically, Defendant
Magro “employed a one-hand vice-like choke hold on Plaintiff’s throat while the other
four defendants simultaneously each employed single finger force. . .to apply pressure to
nerve points behind Plaintiff’s ears, both temples and under his right armpit.” Id.
Plaintiff was then escorted to the fingerprint machine by Defendants Scott Kuhl,
Magro, and Phillips. (ECF No. 1, PageID.11). The handcuff on Plaintiff’s right wrist
was removed after which Defendant Phillips “attempted to hold Plaintiff’s right hand
fingers down on the fingerprint scan machine while forcefully squeezing nerve points
between his index finger and thumb while [Defendants Scott Kuhl, Magro, Dipert, and
Helfman] again simultaneously applied pressure to nerve points at his temples, thighs
and under his left armpit.” Id.
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In support of their motion for summary judgment, Defendants Scott Kuhl and
Magro have submitted affidavits regarding the events in question. (ECF 47-7,
PageID.545-47; ECF No. 47-8, PageID.549-51). In their affidavits, Defendants assert
the following.
Plaintiff stated to Defendant Scott Kuhl that “he would not allow [officers] to
fingerprint or photograph him.” (ECF No. 47-8, PageID.550). When Plaintiff was
placed in front of the camera, he placed his chin on chest to prevent his face from being
photographed. (ECF No. 47-7, PageID.546; ECF No. 47-8, PageID.550). Plaintiff
“refused repeated instructions . . . to lift his head.” (ECF No. 47-7, PageID.546).
Instead, Plaintiff “went limp” forcing officers to “lift [Plaintiff] up and correctly situate
him in front of the camera.” (ECF No. 47-7, PageID.546; ECF No. 47-8, PageID.550).
When Plaintiff was escorted to the fingerprint machine, he “actively resisted by
pulling his hand away.” (ECF No. 47-7, PageID.546; ECF No. 47-8, PageID.550).
When officers attempted to hold Plaintiff’s hand in place, Plaintiff clenched his hand into
a fist and then “dug his fingers into the gel fingerprint pad and damaged it.” (ECF
No. 47-7, PageID.546-47; ECF No. 47-8, PageID.550-51). No further attempts to record
Plaintiff’s fingerprints were attempted and he was then escorted back to his cell. (ECF
No. 47-7, PageID.547; ECF No. 47-8, PageID.551).
Defendants have also submitted a video recording of the incident in question.
(ECF No. 47, Exhibit D). The video reveals the following. Plaintiff was escorted into a
room and placed against a wall in front of a camera which was attached to the opposite
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wall. Plaintiff stood with his chin on his chest such that his face could not be
photographed. After several seconds an officer placed a hand on Plaintiff’s head and
attempted to raise Plaintiff’s head so that his face could be photographed. Plaintiff
resisted this effort and after only a few seconds, the officer removed his hand from
Plaintiff’s head. This encounter was incredibly brief and the officer employed only
minimal force. Plaintiff then allowed his body to go limp and he fell to the floor.
Several officers then lifted Plaintiff and oriented his body such that his face could be
photographed.
Plaintiff was then placed in a chair while officers prepared to attempt to record
Plaintiff’s fingerprints. Plaintiff was subsequently escorted to a work station where the
fingerprint scanner was located. The handcuff on Plaintiff’s right wrist was removed
and an officer attempted to guide Plaintiff’s right hand onto the fingerprint scanner.
Plaintiff actively resisted this effort and formed his right hand into a fist. Several
officers attempted to obtain Plaintiff’s compliance through the application of minimal
force, which Plaintiff actively resisted. Realizing that further attempts to obtain
Plaintiff’s compliance would be futile, the officers discontinued their efforts and escorted
Plaintiff from the room.
As is well recognized, “[w]hen opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no reasonable jury could believe it,
a court should not adopt that version of facts for purposes of ruling on a motion for
summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Rather, the Court
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should “view[] the facts in the light depicted by the videotape.” Id. at 380-81; see also,
Whittaker v. Leonard, No. 1:23-cv-284, 2025 WL 2924594 at *2 (W.D. Mich., Aug. 14,
2025) (same).
As noted above, Plaintiff must present “significant probative evidence”
establishing that “there is a genuine issue for trial.” Pack, 434 F.3d at 813-14. Other
than assertions which are refuted by video evidence, Plaintiff has failed to present
evidence creating a genuine issue for trial. Thus, Defendants have satisfied their
burden to demonstrate the absence of genuine factual dispute. Accordingly, Defendants
Scott Kuhl, Magro, Phillips, Dipert, and Helfman are entitled to summary judgment on
Plaintiff’s use of excessive force claims.
III. Supervisory Liability and Policy Implementation
Plaintiff alleges that Defendants Bailey and Berrien County implemented policies
that violated his rights against excessive force and unconstitutional conditions of
confinement. (ECF No. 1, PageID.14-15). To prevail on these claims, Plaintiff must
show that he suffered a constitutional injury as a result of “official municipal policy.”
Connick v. Thompson, 563 U.S. 51, 60 (2011). Official municipal policy includes “the
decisions of a government’s lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically have the force of law.” Id. at 61.
While Plaintiff asserts the conclusion that he was injured as a result of certain policies,
Plaintiff has presented no evidence concerning the content of any such policies or
articulate how such caused his injury. Accordingly, the undersigned recommends that
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Defendants Bailey and Berrien County are entitled to summary judgment on these
claims.
Plaintiff also alleges that Defendants Berrien County, Burkes, Herbert, Hyun,
Magro, Scott Kuhl, Erin Kuhl, and Will failed to properly exercise their supervisory
authority resulting in violation of his rights. (ECF No. 1, PageID.14). As is well
recognized, “[a] supervisory official’s failure to supervise, control or train the offending
individual is not actionable unless the supervisor either encouraged the specific incident
of misconduct or in some other way directly participated in it.” Peatross v. City of
Memphis, 818 F.3d 233, 242 (6th Cir. 2016). Thus, “at a minimum,” Plaintiff “must
show that the defendant ‘at least implicitly authorized, approved, or knowingly
acquiesced in the unconstitutional conduct of the offending officers.’” Id. Plaintiff has
presented no evidence that Defendants encouraged any specific incident of misconduct.
Moreover, to the extent Plaintiff alleges that Defendants participated in acts of
misconduct, Defendants are entitled to relief for the reasons articulated herein.
Accordingly, the undersigned recommends that Defendants Berrien County, Burkes,
Herbert, Hyun, Magro, Scott Kuhl, Erin Kuhl, and Will are entitled to summary
judgment as to these claims.
IV. Unidentified Defendants
Plaintiff initiated this action on September 26, 2024. In an Opinion and Order
dated November 25, 2024, the Court dismissed many of Plaintiff’s claims and ordered
that the remaining claims be served on Defendants. (ECF No. 11-12).
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Federal Rule of Civil Procedure 4(c) indicates that “[a] summons must be served
with a copy of the complaint.” The time frame within which service must be effected is
articulated in Rule 4(m), which provides that if service of the summons and complaint is
not made upon a defendant within ninety days after the filing of the complaint, “the
court—on motion or on its own initiative after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made within a
specified time.” See also, Abel v. Harp, 122 Fed. Appx. 248, 250 (6th Cir., Feb. 16, 2005)
(“[a]bsent a showing of good cause to justify a failure to effect timely service, the Federal
Rules of Civil Procedure compel dismissal”) (emphasis added).
While Plaintiff is not proceeding as a pauper in this matter, the Court ordered
that Plaintiff’s complaint be served by the United States Marshal. (ECF No. 12).
Nevertheless, Plaintiff bears the responsibility to “identify and provide an address for
the John Doe defendant[s] so that the Court may order service.” Eden v. Keinath,
No. 2:22-cv-11515, 2022 WL 2812515 at *3 (E.D. Mich., July 18, 2022), vacated, No. 2:22-
CV-11515, 2022 WL 22945664 (E.D. Mich. Oct. 14, 2022).
Because Plaintiff has failed to provide the Court with the identities of the various
unidentified Defendants within the time frame articulated in Rule 4(m), dismissal is
appropriate. Ibid. Accordingly, the undersigned recommends that Plaintiff’s claims
against Unknown Parties #1, #2, #4, and #5 through #15 be dismissed for failure to
timely effect service.
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CONCLUSION
For the reasons articulated herein, the undersigned recommends that Defendants’
Motion for Summary Judgment (ECF No. 42) be granted in part, denied without
prejudice in part, and this action terminated. 	Specifically, the undersigned
recommends the following: (1) Plaintiff’s remaining Fourth Amendment claims be
dismissed for failure to state a claim; (2) Plaintiff’s conditions of confinement claims,
articulated in paragraphs nine through thirteen of his complaint, be dismissed for failure
to state a claim; (3) Defendants Bailey, Burkes, Herbert, Magro, Scott Kuhl, Erin Kuhl,
Will, Hyun, and Tarnowski be granted summary judgment as to Plaintiff’s conditions of
confinement claims articulated in paragraphs six through eight of his complaint;
(4) Plaintiff’s excessive force claims arising from the July 28, 2022 search be dismissed
for failure to state a claim; (5) Defendants Scott Kuhl, Magro, Phillips, Dipert, and
Helfman be granted summary judgment as to Plaintiff’s excessive force claims arising
from the July 28, 2022 attempt to photograph Plaintiff and record his fingerprints;
(6) Defendants Berrien County, Bailey, Burkes, Herbert, Hyun, Magro, Scott Kuhl, Erin
Kuhl, and Will be granted summary judgment as to Plaintiff’s claims regarding
supervisory liability and policy implementation; and (7) Plaintiff’s claims against
Unknown Parties, #1, #2, #4, and #5 through #15 be dismissed for failure to timely effect
service.
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For the same reasons the undersigned makes these recommendations, the
undersigned finds that an appeal of such would be frivolous. Coppedge v. United States,
369 U.S. 438, 445 (1962). Accordingly, the undersigned further recommends that an
appeal of this matter by Plaintiff would not be in good faith.
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 27, 2026 	/s/ Phillip J. Green
PHILLIP J. GREEN
United States Magistrate Judge
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