Dye v. Washtenaw County Sheriff Department et al

Filing 23

OPINION AND ORDER denying 17 Defendants' Motion for Sanctions and Extending Deadline for Filing the Motion for Attorney Fees to 1/20/2012. Signed by District Judge Robert H. Cleland. (LWag)

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

DWAYNE DYE,
Plaintiff,
Case No. 2:11-cv-13967

v.
WASHTENAW COUNTY SHERIFF
DEPARTMENT, et al.,
Defendants.
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OPINION AND ORDER DENYING DEFENDANTS’ MOTION FOR SANCTIONS AND
EXTENDING DEADLINE FOR FILING MOTION FOR ATTORNEY’S FEES
Before the court is Defendants’ motion for sanctions, requesting that the court
sanction Plaintiff under Federal Rule of Civil Procedure 11 for filing a frivolous complaint
and launching a “smear campaign designed to harass” Defendants. (Mot. Sanctions
¶ 2, Dkt. # 17.) Plaintiff has not responded and the time allotted for a response has
elapsed. See E.D. Mich. LR 7.1(e)(2)(B). The court determines a hearing to be
unnecessary. See id. 7.1(f)(2). For the reasons that follow, the court will deny the
motion.
I. BACKGROUND
The events giving rise to this litigation occurred on August 17, 2010, when
Defendants Joseph Ballard and David Egeler of the Washtenaw County Sheriff
Department observed Plaintiff’s eviction from “Camp Take Notice,” a community of

homeless individuals living in tents.1 Shortly thereafter, Defendants allege that Plaintiff
began a “smear campaign” against Defendants Ballard and Egeler by systematically
distributing flyers “falsely describing [them] as racists, members of the Ku Klux Klan and
conspiring to murder him.” (Br. Supp. Mot. Sanctions 1, Dkt. # 17; see Mot. Sanctions
Ex. 1, Dkt. # 17-2.) On February 8, 2011, after Plaintiff did not respond to a written
demand from Defendants’ counsel that he retract the statements contained in the flyers,
the officers filed a pre-suit petition in the Washtenaw County Circuit Court to depose
Plaintiff and determine whether he had any evidence to support his potentially libelous
statements. See Mich. Ct. R. 2.303(A)(1). Although the petition was granted, the
deposition did not take place as scheduled. Instead, Plaintiff ceased his leaflet
campaign, and the officers chose not to pursue the litigation unless Plaintiff again began
distributing the flyers. The circuit court dismissed the officers’ libel action for lack of
progress on August 29, 2011.
On September 12, 2011, Plaintiff filed a complaint in this court based on the
Camp Take Notice incident against Defendants Ballard, Egeler, Washtenaw County
Sheriff Jerry Clayton, and the Washtenaw County Sheriff Department. Defendants
allege that Plaintiff “revived his smear campaign within two days” by distributing more
flyers and sending emails, this time targeting Defendant Clayton as well as Defendants
Ballard and Egeler. (See Mot. Sanctions Ex. 1, Dkt. # 17-2.) On September 23, 2011,
Defendants moved to dismiss the complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6), and Plaintiff filed an amended complaint on October
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A more complete description of this incident is contained in the court’s order
granting Defendants’ second motion to dismiss the complaint. (See 11/29/11 Order 1-2,
Dkt. # 19.)
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14, 2011. Defendants filed a second motion to dismiss under Rule 12(b)(6), which the
court granted on November 29, 2011.
Defendants first sent a draft of this motion for sanctions to Plaintiff on September
27, 2011, (see id. Ex. 3, at 1-21, Dkt. # 17-4), in order to comply with the “safe harbor”
requirement of Rule 11, see Fed. R. Civ. P. 11(c)(2) (“[A] motion [for sanctions] must be
served under Rule 5, but it must not be filed or be presented to the court if the
challenged paper, claim, defense, contention, or denial is withdrawn or appropriately
corrected within 21 days after service . . . .”). Defendants sent additional Rule 11
notices to Plaintiff on October 14, 2011, (see Mot. Sanctions Ex. 3, at 22-40), and on
October 20, 2011, (see id. at 41-59), and agreed on October 24, 2011, to extend the
safe harbor period until November 11, 2011, in light of Plaintiff’s amended complaint.
Plaintiff did not withdraw his complaint, and Defendants filed the instant motion for
sanctions with the court on November 15, 2011. Plaintiff failed to file a response within
the required time period. See E.D. Mich. LR 7.1(e)(2)(B) (“A response to a
nondispositive motion must be filed within 14 days after service of the motion.”).
II. STANDARD
Under Rule 11, an attorney or unrepresented party who signs, files, or submits a
pleading to the court “certifies that to the best of the person’s knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances”:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or
reversing existing law or for establishing new law;
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(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity
for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of
information.
Fed. R. Civ. P. 11(b). “If, after notice and a reasonable opportunity to respond, the
court determines that Rule 11(b) has been violated, the court may impose an
appropriate sanction on any attorney, law firm, or party that violated the rule or is
responsible for the violation.” Id. 11(c)(1).
“‘The test for the imposition of Rule 11 sanctions in this circuit is whether the
individual’s conduct was reasonable under the circumstances.’” Int’l Union, United
Auto., Aerospace & Agric. Implement Workers of Am. v. Aguirre, 410 F.3d 297, 304 (6th
Cir. 2005) (quoting Mihalik v. Pro Arts, Inc., 851 F.2d 790, 792 (6th Cir. 1988)). This is
“‘an objective standard, intended to eliminate any “empty-head pure-heart” justification
for patently frivolous arguments.’” Nieves v. City of Cleveland, 153 F. App’x 349, 353
(6th Cir. 2005) (citing Fed. R. Civ. P. 11 Advisory Comm. Notes (1993 Amends.)).
While, generally, a court holds pro se pleadings to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), pro se
litigants must still abide by Rule 11’s certification requirements and are not exempt from
Rule 11 sanctions “simply because they are not represented by counsel.” King v. IB
Prop. Holdings Acquisitions, 635 F. Supp. 2d 651, 661 (E.D. Mich. 2009); see also Kaye
v. Acme Invs., Inc., No. 08-12570, 2008 WL 4482304, *1 (E.D. Mich. Oct. 1, 2008) (“Pro
se litigants must comply with Rule 11 no less than attorneys, and must make a

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reasonable inquiry as to whether the pleading in question is well-grounded in fact and
warranted by existing law.”).
III. DISCUSSION
Defendants argue that Plaintiff violated Rule 11 both “by initiating this action and
continuing his smear campaign for the improper purpose of harassing the Defendants.”
(Br. Supp. Mot. Sanctions 5.) Defendants request that the court award them “monetary
sanctions” to cover “the costs to defend against [Plaintiff]’s frivolous suit and smear
campaign” and a restraining order barring Plaintiff from “distributing material
intentionally calculated to incite public contempt for the officers.” (Id. at 7.) Because
Plaintiff’s leaflet campaign is not within the purview of Rule 11 and his complaint does
not run afoul of Rule 11(b), Defendants’ motion for sanctions must be denied.
As an initial matter, Rule 11 does not allow the court to sanction Plaintiff for
distributing flyers and emails to the general public. Rule 11 applies only to court filings.
See Fed. R. Civ. P. 11(b) (confining the rule’s application to the “present[ation] to the
court [of] a pleading, written motion, or other paper”). An individual cannot violate Rule
11(b), thereby risking sanctions under Rule 11(c), by statements made in other
documents. See id. 11(c)(1) (“If . . . the court determines that Rule 11(b) has been
violated, the court may impose an appropriate sanction . . . .”). If Defendants seek to
enjoin Plaintiff from disseminating these materials, it would seem that a libel action or
something similar, perhaps of the type contemplated by the pre-suit petition filed against
Plaintiff in the Washtenaw County Circuit Court, would be required.
Turning to Plaintiff’s complaint, Defendants allege that it violates Rule 11(b)(1),
(2), and (3) because it was presented for the improper purpose of harassing
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Defendants, it states a frivolous claim not warranted by existing law, and it lacks
evidentiary support. These arguments fail. First, Defendants’ blanket assertion that the
factual allegations in the complaint “have no evidentiary support,” (Br. Supp. Mot.
Sanctions 6), is untenable. Plaintiff’s complaint is based solely on the events that
transpired at Camp Take Notice on August 17, 2010, and does not incorporate the
allegedly libelous statements printed in the flyers and emails to which Defendants now
object. As neither Defendants’ motions to dismiss nor their motion for sanctions
challenges Plaintiff’s recitation of the facts concerning the Camp Take Notice incident,
the court cannot conclude that Plaintiff violated Rule 11(b)(3) by filing the complaint.
Second, the claims and legal contentions stated in the complaint are not so
frivolous as to amount to a violation of Rule 11(b)(2). Though the court ultimately
granted Defendants’ motion to dismiss the complaint for failure to state a claim, Plaintiff
brought a colorable argument that Defendants Ballard and Egeler violated his Fourth
Amendment rights, based upon existing Supreme Court and Sixth Circuit jurisprudence
concerning law enforcement officers’ quasi-participation in illegal evictions. See Soldal
v. Cook Cnty., Ill., 506 U.S. 56 (1992); Cochran v. Gilliam, 656 F.3d 300, 307-09 (6th
Cir. 2011). Given Plaintiff’s status as a pro se litigant, the court finds that the legal
defects of his complaint are not deserving of sanctions.
Third and finally, Defendants have not presented sufficient evidence that Plaintiff
brought the complaint for an improper purpose. As discussed above, Plaintiff’s
complaint presented an arguable legal claim based on allegations adequately grounded
in fact. Even when taken alongside Defendants’ proffered evidence of Plaintiff’s
allegedly improper leaflet campaign targeting Defendants, the court is unconvinced that
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Plaintiff was acting on an illicit motivation when crafting his complaint. Rather, it seems
that Plaintiff appears to have filed this lawsuit to redress what he considered a legal
wrong—or, at least, he can be sensibly viewed as having done so. This purpose does
not violate Rule 11(b)(1). Thus, the court determines that sanctions against Plaintiff for
filing his complaint are not warranted under Rule 11(c).
Defendants also appear to request an award of attorney’s fees under Federal
Rule of Civil Procedure 54(d) and 28 U.S.C. § 1988, which provisions they seem to cite
as additional authority for the relief they request under Rule 11. (See Br. Supp. Mot.
Sanctions 5 (“The frivolous nature of the Complaint also warrants sanctions under Rule
54 and 42 U.S.C. 1988 [sic].”).) However, a motion for Rule 11 sanctions “must be
made separately from any other motion.” Fed. R. Civ. P. 11(c)(2). If Defendants
intended to move for attorney’s fees under Rule 54(d) in their instant motion, such a
request was not properly presented to the court. Accordingly, the court will allow
Defendants fourteen days from the date of this order to file a motion for attorneys fees
under Rule 54(d), should they desire to do so. See id. 54(d)(2)(B)(i)
(requiring party to file a motion for attorney’s fees “no later than 14 days after the entry
of judgment,” “[u]nless a statute or court order provides otherwise”).
IV. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Defendants’ “Motion for
Sanctions” [Dkt. # 17] is DENIED.

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IT IS FURTHER ORDERED that the deadline for filing a motion for attorney’s
fees under Federal Rule of Civil Procedure 54(d) is EXTENDED to January 20, 2012.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 6, 2012

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 6, 2012, by electronic and/or ordinary mail.
s/Lisa G. Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\11-13967.DYE.DenySanctions.set.2.wpd

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