Dumas v. Hurley Medical Center et al

Filing 223

ORDER denying 206 Motion for Sanctions. Signed by District Judge Robert H. Cleland. (Ciesla, C)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LOWANA SHANNELL DUMAS,
Plaintiff,
v.

Case No. 10-12661

CITY OF FLINT, et al.,
Defendants.
/
ORDER DENYING DEFENDANT AFSCME’S MOTION FOR SANCTIONS
On July 6, 2010, pro se Plaintiff Lowana Dumas sued Defendants Hurley Medical
Center, Kristen Deloney, Dwayne Parker, American Federation of State, County and
Municipal Employees (“AFSCME”) Council 25, AFSCME Local 1603, Patricia Ramirez,
Deloris Lots, and Victoria Thompson, alleging that she suffered unlawful discrimination.
On July 16, 2013, after three years of litigation, this court adopted in full Magistrate
Judge Mona A. Majzoub’s “Report and Recommendation” and entered judgment in
favor of Defendants. Defendant AFSCME presents a motion for sanctions pursuant to
28 U.S.C. § 1927 and the court’s inherent power to sanction. AFSCME claims that
Plaintiff “vexatiously [multiplied] the proceedings in denying Defendant’s request for
concurrence in its motion to dismiss, where Plaintiff had no viable legal theory to rebut
[AFSCME’s] defenses.” (Pg. ID # 4350.) Further, AFSCME argues that Magistrate
Judge Majzoub “recommended dismissal of Plaintiff’s claims on the same grounds that
Plaintiff was requested to concur with dismissal.” (Id.) A hearing on the motion is not

necessary. See E.D. Mich. LR 7.1(f)(2). For the reasons that follow, the court will deny
the motion.
Courts may award sanctions under 28 U.S.C. § 1927 when “[a]ny attorney or
other person admitted to conduct cases in any court of the United States or any
Territory thereof . . . multiplies the proceedings in any case unreasonably and
vexatiously.” 28 U.S.C. § 1927 (emphasis added). Defendant AFSCME relies on Gitler
v. Ohio, 632 F. Supp. 2d 722 (N.D. Ohio 2009), to support its argument that § 1927
sanctions may apply to pro se litigants. Gitler states: “Although § 1927 on its face
limits who may be sanctioned to an attorney or other person allowed to conduct cases,
courts in the Sixth Circuit can sanction pro se litigants under that provision even after
dismissing a case for lack of subject matter jurisdiction.” Id. at 724 (citations omitted).
Other courts do not agree that § 1927 may be used to sanction pro se litigants. See,
e.g., Sassower v. Field, 973 F.2d 75, 80 (2d Cir.1992). The Sixth Circuit has not
specifically ruled whether a pro se plaintiff can be sanctioned under the authority of
§ 1927. See Li v. Recellular, Inc., 2010 WL 1526379, *8 (E.D. Mich. 2010) (Murphy, J.)
(“Although the Sixth Circuit has not squarely addressed the issue, language in a recent
decision focusing on a court’s power to sanction attorneys indicates that the Sixth
Circuit would likely join other circuits in holding that non-lawyer pro se litigants cannot
be ordered to cover an opponent’s costs and fees under section 1927.” (citing Rentz v.
Dynasty Apparel Industries, Inc., 556 F.3d 389, 395–96 n.6 (6th Cir. 2009))).
The court need not find whether § 1927 permits the court to sanction Plaintiff. If
an attorney knows or reasonably should know that either the claim he or she is pursuing

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is frivolous, or his or her litigation tactic will needlessly obstruct the litigation of
nonfrivolous claims, sanctions may be warranted absent any finding of bad faith.
Rentz, 556 F.3d at 396 (quoting Jones v. Cont’l Corp., 789 F.2d 1225, 1230 (6th Cir.
1986)). “However, ‘[t]here must be some conduct on the part of the subject attorney
that trial judges, applying the collective wisdom of their experience on the bench, could
agree falls short of the obligations owed by a member of the bar to the court and which,
as a result, causes additional expense to the opposing party.’” Rentz, 556 F.3d at 396
(alteration in original) (quoting Ridder v. City of Springfield, 109 F.3d 288, 298 (6th
Cir.1997)). Thus, an attorney may be sanctioned when “he intentionally abuses the
judicial process or knowingly disregards the risk that his actions will needlessly multiply
proceedings.” Bailey v. Papa John’s USA, Inc., 236 F. App’x 200, 204 (6th Cir. 2007).
Id. “Under this objective standard, ‘§ 1927 sanctions require a showing of something
less than subjective bad faith, but something more than negligence or incompetence.’”
Id. (quoting Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater, 465 F.3d 642,
646 (6th Cir. 2006)). Here, Plaintiff had at least a plausible analytical basis to bring her
case: she alleged that as a multi-racial woman with mental and physical impairments,
she experienced employment discrimination. Even if § 1927 applied to Plaintiff, her
decision to proceed with her claims after Defendant AFSCME sought concurrence does

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not meet the “objective” standard of 28 U.S.C. § 1927 under which the court may
impose sanctions.1
In Chambers v. NASCO, Inc., 501 U.S. 32 (1991), the Supreme Court held that a
district court has the “inherent authority” to impose independent sanctions. Id. at
43–50. But the “imposition of inherent power sanctions requires a finding of bad faith,”
First Bank of Marietta v. Hartford Underwriters Ins. Co., 307 F.3d 501, 517 (6th Cir.
2002), or conduct “tantamount to bad faith,” Roadway Express, Inc. v. Piper, 447 U.S.
752, 767 (1980). When invoking its inherent authority, “a court must exercise caution . .
. and comply with the mandates of due process.” Dell, Inc. v. Ellis, No. 07-2082, 2008
WL 4613978, at *2 (6th Cir. June 10, 2008) (citing Chambers, 501 U.S. at 50). Given
that Plaintiff’s conduct does not meet the “objective” standard of 28 U.S.C. § 1927
under which the court may impose sanctions, Plaintiff’s conduct also does not meet the
higher standard, which requires bad faith, necessary to impose sanctions under the
court’s inherent power. See First Bank of Marietta, 307 F.3d at 517.

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Defendant AFSCME further relies on Gitler to support its argument that § 1927
sanctions are warranted because Plaintiff “continued to file meritless pleadings after
having been notified that doing so would result in sanctions for her continued
maintenance of unfounded, frivolous and vexatious litigation.” (Pg. ID # 4351.)
However, in Gitler, the court notified Gitler that if she persisted to file meritless
pleadings then she would be at risk of being sanctioned. Gitler, 632 F. Supp. 2d at 724
(“[E]ven after I warned of sanctions, Gitler has disregarded my orders to refrain from
filing additional motions to reconsider.”). Defendant AFSCME’s warning that it would
seek costs if Plaintiff did not consent to voluntarily dismissal of her claims is, within
these facts, not equivalent to the kinds of warnings from judicial officers that have in the
past sufficed. Also, as a general matter, it is not unusual for a party to withhold
concurrence in good faith and present a rational argument in opposition, but later lose
on the same grounds that the opposing party sought concurrence.
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For the reasons stated above, IT IS ORDERED that Defendant AFSCME’s
motion for sanctions, [Dkt. #206], is DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 10, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 10, 2014, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

Q:\Cleland\JUDGE'S DESK\C1 ORDERS\10-12661.DUMAS.MSanctions.4.rljr.wpd

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