NOT RECOMMENDED FOR PUBLICATION File Name: 24a0349n.06
No. 23-1902
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Aug 08, 2024 RICHARD WERSHE, JR., ) KELLY L. STEPHENS, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR CITY OF DETROIT, MICHIGAN; ) THE EASTERN DISTRICT OF WILLIAM JASPER; KEVIN GREENE; ) MICHIGAN HERMAN GROMAN; UNKNOWN ) FORMER ASSISTANT UNITED STATES ) ORDER ATTORNEY; CAROL DIXON, as ) Representative of the Estate of James Dixon; ) EDWARD JAMES KING; ) LYNN HELLAND, ) Defendants-Appellees. ) ) )
Before: CLAY, McKEAGUE, and READLER, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Richard Wershe, Jr., sued the City of Detroit and various
former state and federal law enforcement officials on July 20, 2021, alleging that Defendants
violated his constitutional rights in the 1980s and in 2003. The district court then dismissed
Wershe’s complaint as time-barred and declined to apply equitable tolling, and Wershe appealed.
One set of Defendants, the federal law enforcement officials, now moves this Court for sanctions
against Wershe and his counsel. In response, Wershe moves for attorneys’ fees against the federal
law enforcement officials’ counsel. For the reasons set forth below, we DENY both motions.
We begin with Defendants’ motion for sanctions. The federal law enforcement officials
move for “appropriate sanctions” against Wershe and his counsel pursuant to Federal Rule of No. 23-1902, Wershe v. City of Detroit
Appellate Procedure 38 and 28 U.S.C. § 1927. No. 23-1902, Defs.’ Mot. for Sanctions, ECF No.
50, 8. Rule 38 permits this Court to award “just damages and single or double costs” when an
appeal is frivolous. Fed. R. App. P. 38. Under § 1927, this Court may sanction an attorney
personally if that attorney “multiplies the proceedings in any case unreasonably and vexatiously,”
28 U.S.C. § 1927, such as when the attorney knew or should have known that a claim was
frivolous, Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016) (citation omitted).
The federal law enforcement officials assert a number of grounds for sanctions, but none
are compelling. To start, they claim that Wershe’s appeal is frivolous because his equitable tolling
arguments lack merit. Regardless of its ultimate outcome, an appeal is not frivolous so long as it
has some “arguable basis either in law or in fact.” See Daker v. Comm’r, Ga. Dep’t of Corr., 820
F.3d 1278, 1284 (11th Cir. 2016) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
Wershe’s appeal of the district court’s denial of equitable tolling clears that low bar. There is some
legal support for his arguments that an extraordinary attorney error, Holland v. Florida, 560 U.S.
631, 652 (2010), and a defendant’s threat of retaliation, see Doe v. United States, 76 F.4th 64, 71–
72 (2d Cir. 2023), can be grounds for equitable tolling. And although courts have rarely applied
equitable tolling over the multiple decades asked for by Wershe, equitable tolling over such a
period is not wholly unfounded. See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).
The federal officials add that Wershe made false and frivolous allegations below and on
appeal. Many of their examples simply quibble with Wershe’s arguments. See, e.g., No. 23-1902,
Defs.’ Mot. for Sanctions, ECF No. 50, 14 (taking issue with Wershe’s assertion that he could
amend his complaint to include “more affidavits and/or facts” when he did not identify such facts).
And others are more akin to factual disputes than they are to sanctions-worthy false statements.
For example, the federal officials take issue with the claim that they breached a promise to
2 No. 23-1902, Wershe v. City of Detroit
advocate for Wershe’s parole. They argue that Wershe must have fabricated his allegations
because, at his 2003 parole hearing, multiple individuals testified that Wershe received no
promises for cooperating with law enforcement. A factfinder could certainly credit such
statements, but those statements do not demonstrate that Wershe lied in his complaint.
Moreover, although a movant need not show bad faith, this Circuit usually imposes Rule
38 sanctions only when some improper purpose underlies the appeal. B & H Med., L.L.C. v. ABP
Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008). The federal officials have not shown that to be
true here. They speculate that Wershe brought suit and appealed to promote his cannabis brand,
but they lack support for that assertion. They protest that Wershe really intended to sue, and thus
planned to substitute in, the United States. However, Wershe brought a separate suit against the
United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and he
cannot substitute in the United States as to the constitutional claims on which he bases the instant
suit. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that there is no vicarious liability
under Bivens and § 1983, which are the causes of action under which Wershe sues Defendants);
Koprowski v. Baker, 822 F.3d 248, 254 (6th Cir. 2016) (holding that plaintiffs cannot bring
constitutional claims under the FTCA). The federal officials have failed to show that an improper
purpose animated this lawsuit.
Lastly, the federal officials object to Wershe’s continued litigation against Defendant Carol
Dixon, as representative of decedent James Dixon’s estate, because they allege that no estate exists.
The fact that no estate exists, however, is generally not dispositive because a party may petition to
open an estate. See Diallo v. LaRochelle, 871 N.W.2d 724, 725 n.2 (Mich. Ct. App. 2015).
Regardless, Wershe stated below that he took “no issue with Ms. Dixon’s name being removed
3 No. 23-1902, Wershe v. City of Detroit
from the caption.” No. 4:21-cv-11686, Opp’n to Mot. to Dismiss, R. 40, Page ID #867. All told,
Wershe’s actions are not the kind of egregious conduct that typically warrants sanctions.
Next, we consider Wershe’s motion for attorneys’ fees. Wershe moves for attorneys’ fees,
a public admonishment of Defendants, and any other appropriate relief pursuant to Federal Rule
of Appellate Procedure 46(c), 28 U.S.C. § 1927, and this Court’s inherent power to sanction.
Under Rule 46(c), this Court may “discipline an attorney who practices before it for conduct
unbecoming a member of the bar or for failure to comply with any court rule.” Fed. R. App. P.
46(c).
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NOT RECOMMENDED FOR PUBLICATION File Name: 24a0349n.06
No. 23-1902
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED ) Aug 08, 2024 RICHARD WERSHE, JR., ) KELLY L. STEPHENS, Clerk Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR CITY OF DETROIT, MICHIGAN; ) THE EASTERN DISTRICT OF WILLIAM JASPER; KEVIN GREENE; ) MICHIGAN HERMAN GROMAN; UNKNOWN ) FORMER ASSISTANT UNITED STATES ) ORDER ATTORNEY; CAROL DIXON, as ) Representative of the Estate of James Dixon; ) EDWARD JAMES KING; ) LYNN HELLAND, ) Defendants-Appellees. ) ) )
Before: CLAY, McKEAGUE, and READLER, Circuit Judges.
CLAY, Circuit Judge. Plaintiff Richard Wershe, Jr., sued the City of Detroit and various
former state and federal law enforcement officials on July 20, 2021, alleging that Defendants
violated his constitutional rights in the 1980s and in 2003. The district court then dismissed
Wershe’s complaint as time-barred and declined to apply equitable tolling, and Wershe appealed.
One set of Defendants, the federal law enforcement officials, now moves this Court for sanctions
against Wershe and his counsel. In response, Wershe moves for attorneys’ fees against the federal
law enforcement officials’ counsel. For the reasons set forth below, we DENY both motions.
We begin with Defendants’ motion for sanctions. The federal law enforcement officials
move for “appropriate sanctions” against Wershe and his counsel pursuant to Federal Rule of No. 23-1902, Wershe v. City of Detroit
Appellate Procedure 38 and 28 U.S.C. § 1927. No. 23-1902, Defs.’ Mot. for Sanctions, ECF No.
50, 8. Rule 38 permits this Court to award “just damages and single or double costs” when an
appeal is frivolous. Fed. R. App. P. 38. Under § 1927, this Court may sanction an attorney
personally if that attorney “multiplies the proceedings in any case unreasonably and vexatiously,”
28 U.S.C. § 1927, such as when the attorney knew or should have known that a claim was
frivolous, Hogan v. Jacobson, 823 F.3d 872, 886 (6th Cir. 2016) (citation omitted).
The federal law enforcement officials assert a number of grounds for sanctions, but none
are compelling. To start, they claim that Wershe’s appeal is frivolous because his equitable tolling
arguments lack merit. Regardless of its ultimate outcome, an appeal is not frivolous so long as it
has some “arguable basis either in law or in fact.” See Daker v. Comm’r, Ga. Dep’t of Corr., 820
F.3d 1278, 1284 (11th Cir. 2016) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
Wershe’s appeal of the district court’s denial of equitable tolling clears that low bar. There is some
legal support for his arguments that an extraordinary attorney error, Holland v. Florida, 560 U.S.
631, 652 (2010), and a defendant’s threat of retaliation, see Doe v. United States, 76 F.4th 64, 71–
72 (2d Cir. 2023), can be grounds for equitable tolling. And although courts have rarely applied
equitable tolling over the multiple decades asked for by Wershe, equitable tolling over such a
period is not wholly unfounded. See Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).
The federal officials add that Wershe made false and frivolous allegations below and on
appeal. Many of their examples simply quibble with Wershe’s arguments. See, e.g., No. 23-1902,
Defs.’ Mot. for Sanctions, ECF No. 50, 14 (taking issue with Wershe’s assertion that he could
amend his complaint to include “more affidavits and/or facts” when he did not identify such facts).
And others are more akin to factual disputes than they are to sanctions-worthy false statements.
For example, the federal officials take issue with the claim that they breached a promise to
2 No. 23-1902, Wershe v. City of Detroit
advocate for Wershe’s parole. They argue that Wershe must have fabricated his allegations
because, at his 2003 parole hearing, multiple individuals testified that Wershe received no
promises for cooperating with law enforcement. A factfinder could certainly credit such
statements, but those statements do not demonstrate that Wershe lied in his complaint.
Moreover, although a movant need not show bad faith, this Circuit usually imposes Rule
38 sanctions only when some improper purpose underlies the appeal. B & H Med., L.L.C. v. ABP
Admin., Inc., 526 F.3d 257, 270 (6th Cir. 2008). The federal officials have not shown that to be
true here. They speculate that Wershe brought suit and appealed to promote his cannabis brand,
but they lack support for that assertion. They protest that Wershe really intended to sue, and thus
planned to substitute in, the United States. However, Wershe brought a separate suit against the
United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., and he
cannot substitute in the United States as to the constitutional claims on which he bases the instant
suit. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that there is no vicarious liability
under Bivens and § 1983, which are the causes of action under which Wershe sues Defendants);
Koprowski v. Baker, 822 F.3d 248, 254 (6th Cir. 2016) (holding that plaintiffs cannot bring
constitutional claims under the FTCA). The federal officials have failed to show that an improper
purpose animated this lawsuit.
Lastly, the federal officials object to Wershe’s continued litigation against Defendant Carol
Dixon, as representative of decedent James Dixon’s estate, because they allege that no estate exists.
The fact that no estate exists, however, is generally not dispositive because a party may petition to
open an estate. See Diallo v. LaRochelle, 871 N.W.2d 724, 725 n.2 (Mich. Ct. App. 2015).
Regardless, Wershe stated below that he took “no issue with Ms. Dixon’s name being removed
3 No. 23-1902, Wershe v. City of Detroit
from the caption.” No. 4:21-cv-11686, Opp’n to Mot. to Dismiss, R. 40, Page ID #867. All told,
Wershe’s actions are not the kind of egregious conduct that typically warrants sanctions.
Next, we consider Wershe’s motion for attorneys’ fees. Wershe moves for attorneys’ fees,
a public admonishment of Defendants, and any other appropriate relief pursuant to Federal Rule
of Appellate Procedure 46(c), 28 U.S.C. § 1927, and this Court’s inherent power to sanction.
Under Rule 46(c), this Court may “discipline an attorney who practices before it for conduct
unbecoming a member of the bar or for failure to comply with any court rule.” Fed. R. App. P.
46(c). This Court’s inherent power to sanction applies to a party’s bad-faith, vexatious, wanton,
or oppressive conduct, and it must be exercised with restraint. United States v. Llanez-Garcia,
735 F.3d 483, 492 (6th Cir. 2013).
Wershe argues that the federal officials’ counsel multiplied proceedings by moving for
similar sanctions before this Court and the district court. Sanctions are appropriate when a litigant
has a “history of filing vexatious, harassing or duplicative [submissions].” Mai Sa v. Doe, 406
F.3d 155, 158 (2d Cir. 2005) (internal quotation marks and citation omitted). The federal officials’
two motions, standing alone, do not constitute such a history. The two motions are also not
duplicative. The federal officials’ appellate motion dedicates a significant portion of its arguments
to Wershe’s conduct on appeal, and it seeks different relief than Wershe’s district court motion. It
is also not unheard of for parties to bring sanctions motions both before the district court and on
appeal. See, e.g., Berwick Grain Co. v. Illinois Dep’t of Agric., 217 F.3d 502, 504–05 (7th Cir.
2000) (per curiam). While some understandable overlap exists between the federal officials’
motions, sanctions are not warranted in this case.
Wershe’s other arguments also fail to persuade us of the need for sanctions. Wershe claims
that the federal officials misrepresented the facts and holding of Davis v. Jackson, No. 15-CV-
4 No. 23-1902, Wershe v. City of Detroit
5359, 2016 WL 5720811 (S.D.N.Y. Sept. 30, 2016). To the contrary, the federal officials articulate
a conceivable reading of Davis and certainly not a reading that rises to the level of intentional
misrepresentation. See id. at *11. Wershe also claims that the federal officials frivolously assert
that he has improper motives for bringing suit. But the officials’ improper purpose arguments,
while not compelling, are also not wholly frivolous. An improper purpose for bringing an appeal
can indeed serve as a basis for sanctions. Barney v. Holzer Clinic, 110 F.3d 1207, 1212 (6th Cir.
1997).
Ultimately, the award of sanctions on appeal, including in the form of attorneys’ fees, is
entrusted to our discretion. See Dubay v. Wells, 506 F.3d 422, 432 (6th Cir. 2007). In light of the
above, we decline to exercise that discretion here. Accordingly, we DENY Defendants’ motion
for sanctions and Plaintiff’s motion for attorneys’ fees.