Hunter v. Hamilton County et al

Filing 102

REPORT AND RECOMMENDATION that defendant Bogen's #98 MOTION for Sanctions be Denied. Objections to R&R due by 1/17/2017. Signed by Magistrate Judge Karen L. Litkovitz on 1/3/2017. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HON. TRACIEM. HUNTER,
Plaintiff,

Case No. 1: 15-cv-540
Barrett, J.
Litkovitz, M.J.

vs.
HAMILTON COUNTY, et al.,
Defendants.

REPORT AND
RECOMMENDATION

This matter is before the Court on defendant James Bogen' s motion for sanctions (Doc.
98) to which plaintiff has not responded.
I. Background

Plaintiff is an African American female who was elected as a judge of the Hamilton
County, Ohio Juvenile Court in November 2010. Jn 2014, plaintiff was indicted in the Hamilton
County Court of Common Pleas on nine felony counts. See State of Ohio v. Tracie Hunter, Case
Nos. B 1400110 and B1400199. Plaintiff was convicted on one count ofhaving an unlawful
interest in a public contract. The jury was unable to agree on a unanimous verdict as to the
remaining counts and a mistrial on those counts was declared. Plaintiffs retrial on the remaining
counts was scheduled to begin January 19, 2016. On the first day of plaintiffs retrial, the
prosecuting attorneys dismissed the remaining charges against plaintiff. Id. ; see also State of

Ohio v. Tracie M Hunter, Case No. B 1501273.
In the meantime, on August 18, 2015, plaintiff commenced this federal court action
against 21 defendants, including defendant Bogen, a court-appointed lawyer who was hired to
defend plaintiff in lawsuits filed against her during her tenure as a juvenile court judge. Plaintiff
alleged the following causes of action against defendant Bogen: ( 1) a violation of her
constitutional rights under 42 U.S.C. § 1983 based on defendant Bogen's withholding and/or
denying access to plaintiffs legal files and failing to effectively defend and assist her in lawsuits

filed against her (Doc. 1, if 238); (2) state law claims of negligent and intentional infliction of
emotional distress (Id., ifif 262-75); (3) retaliation and unlawful discrimination under Ohio Rev.
Code§ 4112

(Id. ,~

288-300); (4) malpractice

(Id. ,~

301-03); (5) unlawful detention and

confinement under 42 U.S.C. § 1983 (Id., if 314); and (6) conspiracy under 42 U.S.C. § 1985

(Id., ifif 323-25).
Defendant Bogen filed a motion to dismiss plaintiff's complaint against him for failure to
state a claim for relief. (Doc. 30). Plaintiff did not file a response. Defendant Bogen also filed a
motion to dismiss for lack of prosecution in December 2015 and a second motion to dismiss for
lack of prosecution in April 2016. (Docs. 52, 83). 1
On May IO, 2016, the undersigned recommended that defendant Bogen's motion to
dismiss be granted. (Doc. 87). As to plaintiffs § 1983 claim concerning the quality of
defendant Bogen 's representation and alleged failure to provide plaintiff with her legal files, the
undersigned found that plaintiff failed to state a claim for relief because "it is well-settled that
there is no constitutional or statutory right to effective assistance of counsel in a civil case." (Id.
at 9) (quotingAdams v. Vidor, 12 F. App'x 317, 319 (6th Cir. 2001)). Plaintiff failed to state a
claim of negligent infliction of emotional distress because she did not allege an awareness of
"real physical danger to herself or another." (Id. at 10) (quoting Doe v. SexSearch.com, 551 F.3d
412, 417 (6th Cir. 2008)). Plaintiff failed to state a claim of intentional infliction of emotional
distress because: (1) she did not allege that defendant Bogen intended to cause her emotional
distress or knew or should have known that his alleged actions would result in serious emotional
distress; (2) defendant Bogen's alleged actions did not go "beyond all possible bounds of
decency"; and (3) she did not allege that defendant Bogen's alleged actions were the proximate

1

Thirteen County defendants also filed a motion to dismiss for lack of prosecution in December 20 15 and
a second motion to dismiss for lack of prosecution in April 20 16. (Docs. 49, 80). Plaintiff did not file a response to
any of the motions to dismiss for lack of prosecution.
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cause of the criminal prosecution that was the source of her alleged emotional distress. (Id. at
11) (quoting Pyle v. Pyle, 463 N.E.2d 98, 103-04 (Ohio Ct. App. 1983)). The undersigned found
that plaintiffs claims of unlawful discrimination and retaliation under Ohio Rev. Code§ 4112
were not plausible on their face as to defendant Bogen because plaintiff made no allegations
against defendant Bogen that suggested he accused her of crimes or was involved in her
employer' s alleged wrongful harassment and suspension of her. (Id. at 11-12). The undersigned
also found that plaintiffs malpractice claim was barred by the statute oflimitations. (Id. at 1213 ). Further, the undersigned found that plaintiff failed to allege sufficient factual matter
concerning defendant Bogen from which one could draw the "reasonable inference" that he was
liable for her alleged unlawful detention and confinement. (Id. at 13). Finally, the undersigned
found that plaintiffs conclusory allegation that all defendants in this action conspired to deprive
her of her rights of due process and equal protection was insufficient to state a claim for relief
under§ 1985. (Id.).
In September 2016, the Court adopted the undersigned's report and recommendation and
granted defendant Bogen' s motion to dismiss. (Doc. 96). The Court denied as moot defendant
Bogen' s motions to dismiss for lack of prosecution. (Id. at 10). 2

II. Defendant Bogen's Motion for Sanctions
Defendant Bogen seeks sanctions against plaintiff under Fed. R. Civ. P. 1 I, 28 U.S.C. §
1927, and the Court' s inherent power. (Doc. 98 at I). Defendant Bogen argues that the bad faith
requirement for sanctions under Rule 1 I and § 1927 is met because plaintiff "brought this case,
at least in part, to attempt to obtain a tactical advantage in underlying criminal proceedings." (Id.
at 5). He alleges that plaintiffs motive for filing this lawsuit was to obtain the recusal of Judge

2

The Court also granted the County defendants' motions to dismiss for lack of prosecution and terminated the case.

(Id.) .

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Patrick Dinkelacker, another defendant in this federal court action, from her state court criminal
proceedings. (Id. at 2).
Defendant Bogen also argues the Court's Order dismissing plaintiff's action "serves as
res judicata on the points" raised in his sanctions motion. He alleges that the Court granted the

County defendants' motions to dismiss for lack of prosecution on the basis that plaintiff's failure
to file a response to the County' s motions was willful; the County defendants were prejudiced by
plaintiff's delays; and sanctions less drastic than dismissal were not appropriate. (Id. at 5; see
also Doc. 96 at 8).

Defendant Bogen further argues that plaintiff's complaint was unintelligible and failed to
state a claim for relief and that plaintiff made repeated requests to delay the proceedings in this
case. (Id. at 6). He has attached to his motion a copy of a letter he sent to plaintiff in October
2015, which informed plaintiff of his intention to file a motion for sanctions if she did not
dismiss her claims against him within 21 days. (Doc. 98-1 at 19).
Finally, defendant Bogen has attached the declaration of attorney Robert A. Winter, Jr.,
who attests his belief that no reasonable attorney would find plaintiff's lawsuit against defendant
Bogen to be "warranted by existing law or by a non-frivolous argument for extending,
modifying, or reversing existing law or for establishing new law." (Doc. 98-2 at~ 4). Mr.
Winter further opines that plaintiff's "repeated failure to meet deadlines, and to respond at all to
Mr. Bogen's motions, unreasonably and vexatiously multiplied the litigation .. . , causing Mr.
Bogen to incur unnecessary attorney fee expenses." (Id.

at~

5).

III. Defendant Bogen's Motion For Sanctions Should Be Denied
A. Sanctions under Rule 11
Fed. R. Civ. P. 11 "affords the district court the discretion to award sanctions when a
party submits to the court pleadings, motions or papers that are presented for an improper
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purpose, are not warranted by existing law or a nonfrivolous extension of the law, or if the
allegations and factual contentions do not have evidentiary support." First Bank ofMarietta v.

Hartford Underwriters Ins. Co., 307 F.3d 501, 510 (6th Cir. 2002) (citing Fed. R. Civ. P.
1 l(b)(l)-(3)). The test for whether Rule 11 sanctions are warranted is whether the conduct for
which sanctions are sought was "reasonable under the circumstances." Salkil v. Mount Sterling

Twp. Police Dep 't , 458 F .3d 520, 528 (6th Cir. 2006) (quoting Ridder v. City of Springfield, I 09
F.3d 288, 293 (6th Cir. 1997)). A court may not rely on "the wisdom of hindsight" in
determining whether the challenged conduct was reasonable under the circumstances; rather, the
court must determine what was reasonable to believe at the time the pleading, motion, or other
paper was submitted. Merritt v. Int 'l Ass 'n ofMachinists and Aerospace Workers, 613 F.3d 609,
626 (6th Cir. 2010) (citation omitted).
A party seeking sanctions under Rule 11 must follow a two-step process: "first, serve the
Rule 11 motion on the opposing party for a designated period (at least twenty-one days); and
then file the motion with the court." Ridder, 109 F.3d at 294. This process, known as the "safe
harbor" provision, is an "absolute requirement." Id. at 296.
In this case, on October 26, 2015, defendant Bogen sent plaintiff a preliminary version of
the motion for sanctions along with a letter asking plaintiff to dismiss her claims against him.
(Doc. 98-1 at 19-26). However, the motion that defendant Bogen filed with the Court on
September 19, 2016 is not the same motion that defendant Bogen attached to the October 2015
safe harbor letter to plaintiff. The present motion includes a new argument for sanctions (i.e.,
one based on resjudicata) which is premised on actions that occurred after defendant Bogen
initially filed his safe harbor letter. In addition, the sanctions motion filed with the Court, unlike
the one served on plaintiff, seeks sanctions based on the Court' s inherent authority in addition to
the bases raised in the preliminary motion. Defendant Bogen has presented no evidence that he
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served plaintiff with a copy of the instant motion 21 days before filing it and therefore he has not
satisfied the safe harbor provision of Rule 11 . See Rule 11 (c )(2) ("A motion for sanctions must
be made separately from any other motion and . . . must be served under Rule 5.... ").
Assuming, arguendo, that Rule 11 's safe harbor provision has been met, sanctions should
nevertheless be denied on the merits. Defendant Bogen contends that plaintiff brought the
instant lawsuit to gain a tactical advantage in her underlying state court criminal proceeding by
seeking the recusal of the presiding trial court judge, thereby demonstrating bad faith in bringing
this action. However, the alleged bad faith motive ascribed to plaintiff in this regard has no
bearing whatsoever on the unrelated claims plaintiff brought against defendant Bogen.
Defendant Bogen has failed to allege any facts showing that plaintiff brought her claims against
him in bad faith or that she had an improper purpose in filing this action against him.
Defendant Bogen's argument that the Court' s dismissal of plaintiffs claims against the
County defendants amounts to res judicata for sanctions purposes is also unavailing. Defendant
Bogen has made no attempt to explain his argument in this regard or cite any relevant legal
authority demonstrating that plaintiffs failure to respond to the County defendants' motions to
dismiss amounts to sanctionable conduct vis-a-vis defendant Bogen.
Moreover, while the Court determined that plaintiffs claims were in fact subject to
dismissal, they were not so deficient as to warrant sanctions under Rule 11:
Despite th[ e] broad authority [provided in Rule 11 ], this Court has long
subscribed to the notion that sanctions should be imposed for persisting in a claim
after its meritlessness becomes obvious, rather than for merely pleading a claim
that eventually proves to be meritless.

Shuttlesworth v. Housing Opportunities Made Equal, 873 F. Supp. 1069, 1082 (S.D. Ohio 1994).
See also Penn, LLC v. Prosper Bus. Dev. Corp., No. 2:10-CV-993, 2011WL3566154, at *3

6

(S.D. Ohio Aug. 12, 2011 ), aff'd on other grounds, 773 F.3d 764 (6th Cir. 2014). The Sixth
Circuit has cautioned against imposing Rule 11 sanctions at the pleading stage:
As a general proposition, a district court should be hesitant to determine that a
party' s complaint is in violation of Rule 11 (b) when the suit is dismissed pursuant
to Rule 12(b)(6) and there is nothing before the court, save the bare allegations of
the complaint. . . . At the pleading stage in the litigation, ordinarily there is little
or no evidence before the court at all, and such facts as are alleged, must be
interpreted in favor of the nonmovant. While a party is bound by Rule 11 to
refrain from filing a complaint "for any improper purpose," from making claims
"[un]warranted by existing law," or from making "allegations and other factual
contentions [without] evidentiary support," see Fed. R. Civ. P. l l(b)(l)-(3),
making those determinations is difficult when there is nothing before the court
except the challenged complaint. ... "Rule (11] must be read in light of concerns
that it will spawn satellite litigation and chill vigorous advocacy." Id. Rule 11 "' is
not intended to chill an attorney' s enthusiasm or creativity in pursuing factual or
legal theories. "' McGhee v. Sanilac County, 934 F.2d 89, 92 (6th Cir. 1991)
(quoting Fed. R. Civ. P. 11 advisory committee's note).

Tahfs v. Proctor, 316 F.3d 584, 594-95 (6th Cir. 2003). Accordingly, "[a] complaint does not
merit sanctions under Rule 11 simply because it merits dismissal pursuant to Rule 12(b)(6)." Id.
at 595. See also Prater v. Livingston Ave. Child Care, LLC, No. 2:14-cv-490, 2015 WL
1439322, at *9 (S.D. Ohio Mar. 27, 2015) ("While Plaintiffs complaint failed to allege the
predicate acts showing a pattern ofracketeering with the requisite specificity, this Court finds
that Plaintiffs federal RICO claim is not frivolous simply because it failed to state a claim.");

Farmer v. City ofCincinnati, No. 1:04-cv-080, 2007 WL 782159, at *2 (S.D. Ohio Mar. 13,
2007) ("That the Court determined to grant [the defendant' s] Rule 12(b)(6) dismissal motion
does not mean that Rule 11 sanctions are warranted."). Plaintiffs complaint is not frivolous
simply because it fails to state a claim for relief or is inartfully pled. Plaintiffs conduct in this
case is not so egregious that it rises to a level of abuse warranting sanctions under Rule 11. For
these reasons, defendant Bogen's motion for Rule 11 sanctions should be denied.

7

B. Sanctions under 28 U.S.C. § 1927 and inherent power sanctions

Section 1927 provides: "Any attorney or other person admitted to conduct cases in any
court of the United States ... who so multiplies the proceedings in any case unreasonably and
vexatiously may be required by the court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927. "Fees may be
assessed without a finding of bad faith, 'at least when an attorney knows or reasonably should
know that a claim pursued is frivolous, or that his or her litigation tactics will needlessly obstruct
the litigation of nonfrivolous claims. " ' Ridder, 109 F.3d at 298 (quoting Jones v. Cont'! Corp.,
789 F.2d 1225, 1230 (6th Cir. 1986)). "Simple inadvertence or negligence," however, will not
support sanctions under§ 1927. Id. (quoting Jn re Ruben, 825 F.2d 977, 984 (6th Cir. 1987)).
"There 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." Id. (quoting Ruben, 825 F.2d at 984). "[A] n award of attorney's fees against a
losing plaintiff in a civil rights action is an extreme sanction, and must be limited to truly
egregious cases of misconduct." Id. at 299 (quoting Jones, 789 F.2d at 1232).
Sanctions under § 1927 are not warranted in this case because plaintiff is proceeding pro
se and § 1927 does not apply to pro se litigants. By its terms, § 1927 applies to an "attorney or
other person admitted to conduct cases in any [U.S.] court." 28 U.S.C. § 1927. The plain
language of the statute suggests that sanctions under§ 1927 are limited to attorneys and not pro
se litigants. The Sixth Circuit has not directly addressed whether sanctions under § 1927 may be
imposed on pro se litigants. However, as recognized by one district court within the Sixth
Circuit, a recent decision from the court of appeals strongly suggests that sanctions under § 1927
are limited to attorneys:
8

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. In Rentz v. Dynasty Apparel Indus. , Inc. , a panel of the Sixth Circuit
recognized in dicta that the term "attorney or other person admitted to conduct
cases in any [U.S.] court" did not apply to a represented party or a law firm . 556
F.3d 389, 395-96 n. 6 (6th Cir. 2009). The panel narrowly construed the statute
there and confined it to attorneys, and not law firms or parties. This approach
suggests the Sixth Circuit would likewise preclude sanctions against a pro se
litigant like Li, who is neither an attorney, nor admitted to practice law before a
court.
The Sixth Circuit's standard for section 1927 sanctions-limiting sanctionable
conduct to conduct that "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"-also demonstrates that the concern under section 1927 is with attorney
conduct. Id. at 396 (emphasis added) .
Other circuits have concluded that a court may not award fees against pro se
litigants under 28 U.S.C. § 1927. See, e.g. , Sassower v. Field, 973 F.2d 75, 80 (2d
Cir. 1992); Meadowbriar Home for Children, Inc. v. G.B. Gunn, 81 F.3d 521, 535
(5th Cir. 1996); Ba/car v. Bell and Assocs. LLC, 295 F. Supp.2d 635, 640
(N.D.W.Va. 2003), but see Wages v. IRS, 915 F.2d 1230, 1235-36 (9th Cir. 1990).
This conclusion results from the congressional intent gleaned from the statute's
employment of the language "attorney or other person admitted to conduct cases
in any court," which implies that it is unlikely that Congress intended the phrase
"other person" to include "a person lacking lawyer-like credentials." Sassower,
973 F.2d at 80. The Second Circuit in Sassower also reached its conclusion based
on its reading of Chambers v. NASCO, Inc ., 501 U.S. 32 (1991), in which the
Supreme Court "recounted, without disagreement, a District Court's assertion that
section 1927 ' applies only to attorneys."' Id. (quoting Chambers, 501 U.S. at 4142).

Liv. Recellular, Inc., No. 09-cv-11363, 2010 WL 1526379, at *8 (E.D. Mich. Apr. 16, 2010)
(footnote omitted).
The undersigned adopts the well-reasoned opinion in Li and finds that § 1927 sanctions
may not be imposed on a pro se litigant like plaintiff. While the undersigned recognizes that
plaintiff was trained as an attorney, her license has been suspended, she is no longer a practicing
attorney, and she is proceeding prose in this case. See Jn re Hunter, 21N.E.3d1053 (Ohio

9

2014) (suspending plaintiff from the practice of law). As such, the Court should decline to
impose sanctions on plaintiff under § 1927.
Even if the Court determined that it has the authority to impose sanctions on plaintiff
under§ 1927, the undersigned would nevertheless recommend that such sanctions be denied.
Plaintiff's conduct in bringing her claims against defendant Bogen does not rise to a sanctionable
level. As discussed above, defendant Bogen has not shown that plaintiff's pursuit of her claims
against him was done in bad faith or for some improper purpose. Likewise, the fact that
plaintiff's claims were dismissed for failure to state a claim for relief is not tantamount to a
finding that her claims against defendant Bogen were legally frivolous. Neitzke v. Williams, 490
U.S. 319, 329 ( 1989) ("a finding of a failure to state a claim does not invariably mean that the
claim is without arguable merit").
Finally, sanctions are not warranted under the Court's inherent power. Courts have the
" inherent authority to award fees when a party litigates in bad faith, vexatiously, wantonly, or for
oppressive reasons." First Bank ofMarietta, 307 F.3d at 512 (quoting Big Yank Corp. v. Liberty

Mut. Fire Ins. Co., 125 F.3d 308, 313 (6th Cir. 1997)) (internal quotation marks omitted).
Because defendant Bogen has failed to demonstrate that plaintiff brought her claims against him
in bad faith, vexatiously, wantonly, or for oppressive reasons, the Court should decline to impose
sanctions under its inherent authority.

V. Conclusion
Based on the foregoing, it is RECOMMENDED that defendant Bogen' s motion for
sanctions be DENIED.
IT IS SO RECOMMENDED.
Date:

~fk:r~

;/J./µ;7

United States Magistrate Judge

10

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. I: l 5-cv-540
Barrett, J.
Litkovitz, M.J.

HON. TRACIE M. HUNTER,
Plaintiff,
vs.
HAMILTON COUNTY, et al.,
Defendants.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum oflaw in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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