author: BERNICE BOUIE DONALD, Circuit Judge.

text:
    Gary WATKINS, Petitioner-Appellee, v. Jodi DEANGELO-KIPP, Warden, Respondent-Appellant.
    No. 15-2445
    United States Court of Appeals, Sixth Circuit.
    Argued: October 20, 2016
    Decided and Filed: January 10, 2017

    Rehearing En Banc Denied February 17, 2017

      ARGUED: Linus Banghart-Linn, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Phillip D. Comorski, Detroit, Michigan, for Appellee. ON BRIEF: Elizabeth Rivard, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, MI, for Appellant. Phillip D. Comorski, Detroit, Michigan, James C. Thomas, JAMES C. THOMAS P.C., Sterling Heights, Michigan, for Appellee.
    Before: CLAY, KETHLEDGE, and DONALD, Circuit Judges.

       This decision was originally released as an unpublished opinion filed on January 10, 2017. The court has now designated the opinion as one recommended for full-text publication.

       Judges Griffin and White recused themselves from participation in this ruling.

   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Prior to a jury trial for charges arising from the murder of Quincy Varner, Gary Watkins submitted four times to psychiatric evaluation. Though the first evaluator found him incompetent, subsequent evaluators found him competent and criminally responsible for his actions. Despite his bizarre behavior during trial, including exhibiting paranoid beliefs and urinating on a television screen, defense counsel did not request a fifth psychiatric evaluation. A jury found Watkins guilty as charged. Nearly four years after filing a timely habeas petition alleging ineffective assistance of counsel for “failure to investigate and raise a defense,” Watkins filed an amended petition arguing ineffective assistance of counsel for failure to request another psychiatric evaluation after Watkins’ conduct during trial. The district court granted Watkins’ request for habeas relief. However, because Watkins cannot establish that his amended petition relates back to his original petition or that he is entitled to equitable tolling, we REVERSE the district court and DISMISS this portion of his petition as untimely. Because we conclude that the petition is untimely, we decline to address the merits of Watkins’ ineffective assistance of counsel claim.

I.

A jury convicted Watkins of second degree murder, two counts of felony-firearm possession, and assault with intent to murder. Prior to trial, defense counsel requested that Watkins be evaluated for competence to stand trial and for criminal responsibility. Watkins was first evaluated on March 27, 2006 and was deemed incompetent to stand trial. During the interview, Watkins refused to respond, verbally or otherwise, to the evaluator’s questions, so the evaluator “was unable to formally assess his emotional, cognitive, or intellectual function,” and had to rely on “collateral information.” March 27, 2006 Evaluation 3, 5, ECF. No. 15-23, Page ID 885, 887. Specifically, the evaluator reviewed prison and hospital reports, which revealed that: Watkins did not display behavioral problems until March 3, 2006 when he became hostile with staff members who refused to give him pain medication, complained of weakness on the left side of his body, and cried in his cell. He was then transported to the hospital, the reports said, where it was determined that his actions appeared voluntary and were not the result of an organic disorder. Several days later, the reports stated, Watkins was involuntarily hospitalized because he began urinating on himself, stopped responding to staff, stopped eating, and became combative with staff. He also began to say “bizarre” things, like claiming to be Jesus Christ, and claiming his father was a demon who framed him for murder. Id. at 4, Page ID 886. Based on the reports, the evaluator deemed Watkins incompetent to stand trial “at this time,” but postulated that there was a “substantial probability” that Watkins could regain competency “if provided a structured, inpatient, hospital setting with provision for appropriate therapeutic intervention.” Id. at 5, Page ID 887.

After several weeks of the suggested inpatient treatment, Watkins was deemed competent to stand trial. During treatment, Watkins “indicated that he was unable to speak or hear, but his behavior did not appear consistent with this.” April 13, 2006 Evaluation 2, EOF No. 15-22, Page ID 840. For example, Watkins pleasantly interacted with other patients, the patients told staff that Watkins spoke to them, and staff members, including the evaluator, observed Watkins speaking. Though at times Watkins was combative with staff, he eventually started speaking with them, and appeared “goal directed, logical and coherent” without signs of “disorientation or confusion.” Id. The results of the psychological testing indicated “exaggeration and possible malingering of psychopathology.” Id. The evaluator determined that Watkins was “capable of working with his attorney in his defense” if he so chose.” Id. at 3, 841. Based on these evaluations, the court found Watkins competent to stand trial.

At defense counsel’s request, the court ordered a third evaluation. This evaluator found that Watkins was criminally responsible for his actions. The evaluator noted that Watkins was uncooperative and unresponsive, combative with staff “in a seemingly unpredictable manner,” and made allegations that the staff was trying to murder him. July 17, 2006 Evaluation 2, EOF No. 17-1, Page ID 1151. The evaluator’s determination of criminal responsibility was based on observation of Watkins’ behavior; Watkins’ previous hospitalizations and evaluations; an interview with Watkins’ mother indicating Watkins’ increased paranoia in recent years; an interview with Watkins’ probation officer, who spoke to Watkins in December 2005 and indicated that Watkins was able to engage in a “logical and relevant manner”; and an interview with a detective who interviewed Watkins in January 2006 and indicated that Watkins was calm and spoke clearly with a lot of detail. Id. at 4-6, Page ID 1153-55.

Defense counsel then moved for a fourth psychiatric evaluation, which the court granted. The evaluator’s report is not in the record, but defense counsel stated that the evaluator found insufficient evidence to make a finding of a lack of criminal responsibility.

The case proceeded to trial, during which Watkins made various bizarre outbursts. The first morning of trial, the State expressed concerns that Watkins’ behavior posed ⅛ threat of injury or escape. A county sheriff testified that Watkins had been combative with officers and had thrown feces and urine at them. Watkins interjected: “I ain’t got no time for your games. This ain’t no real court. Get me back to the real world. I’m going back to my wife and I’m eating dinner.” Trial Tr. Vol. 1 10:10-13, Jan. 8, 2007, EOF No. 15-9, Page ID 406. He later spit on the table. During jury selection, Watkins exclaimed, “Guilty” several times. Id. at 34:25, 40:17, Page ID 412, 414. When the court warned him about interjecting during jury selection, Watkins flipped over the counsel table, and was removed to watch and listen to the proceedings on a closed circuit television. While outside of the courtroom, Watkins spit on an officer and urinated on the television. On the next day of trial, against counsel’s advice, Watkins took the stand to testify, pronouncing, “I want Jesus to be my judge.” Trial Tr. Vol. 2 75:21, Jan. 9, 2007, ECF No. 15-10, Page ID 545. He was convicted as charged.

On July 28, 2010, Watkins filed a pro se motion for equitable tolling, which the district court denied as moot because the filing was, in fact, timely. So, the court construed the filing as a petition for writ of habeas corpus because Watkins listed the claims he wished to raise in his habeas petition. Watkins v. Haas, 143 F.Supp.3d 632, 637-38 & n.4 (E.D. Mich. 2015). On July 23, 2014, he then filed an amended habeas petition, which the district court granted. Id. at 634. Without any analysis or explanation of the facts presented in the original petition, the district court concluded that under Mayle v. Felix, 545 U.S. 644, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005), Watkins’ supplemental habeas petition related back to the original petition because the two petitions shared a “common core of facts.” Watkins, 143 F.Supp.3d at 640. With equally scant analysis, the court further concluded that, regardless, Watkins would be entitled to equitable tolling of the statute of limitations because his mental disability prevented his timely filing. Id.

Then, turning to the merits of the ineffective assistance of counsel claim, the district court held that:

[i]n light of petitioner’s extensive history of mental and psychiatric problems, his continued bizarre behavior and delusional or paranoid statements, his non-responsive answers to some of the judge’s or counsel’s comments, and his utter inability to cooperate with counsel or follow his advice, counsel was clearly ineffective in failing to request an additional competency evaluation.

Id. at 643. Without addressing whether Watkins established the requisite element of prejudice, the district court concluded that Watkins was entitled to habeas relief. Id.

II.

This court reviews de novo the district court’s determination regarding the timeliness of a habeas petition. DiCenzi v. Rose, 452 F.3d 465, 467 (6th Cir. 2006).

A.

The parties do not dispute that Watkins’ supplemental habeas petition was filed after the expiration of the statute of limitations. Rather, their disagreement centers on whether the supplemental petition relates back to the date of the original petition. The State contends that it does not. It argues that the original petition only raised a claim of ineffective assistance of trial counsel for failure to investigate or present a defense before trial, which “is based on facts that differ in time and type from a claim regarding the failure to request an evaluation based on behavior during trial.” CA6 R. 11, Appellant Br. at 34. In response, without mention of any of the facts presented in the original petition, Watkins insists that the facts underlying the amended petition “are simple, straightforward, and uncontroverted, and were clearly alleged in the original pleading.” CA6 R. 18, Appellee Br. at 29.

An untimely amendment to a habeas petition “relates back” to an original petition filed within the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year limitations period if the original petition and the amended petition arise out of the same “conduct, transaction, or occurrence.” Fed. R. Civ. P. 15(c)(1)(B); see also 28 U.S.C. §§ 2242, 2244(d)(1). The Supreme Court in Mayle defined the standard for relation back in the context of a habeas petition. There, the petitioner argued that his amended petition, which alleged his Fifth Amendment rights were violated during pretrial interrogation, related back to his original petition, filed pro se, where he argued that the admission of videotaped evidence during trial violated his rights under the Sixth Amendment’s Confrontation Clause. 545 U.S. at 648-49, 651-52, 125 S.Ct. 2562. The Court emphasized that, in filing the petition, the petitioner must specify all grounds for relief, stating the facts supporting each ground. Id. at 649, 655, 661, 125 S.Ct. 2562. Consequently, it held that an amended habeas petition does not relate back to the original petition “when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Id. at 650, 125 S.Ct. 2562. Rather, to qualify for relation back, the original and amended petitions must “state claims that are tied to a common core of operative facts.” Id. at 664, 125 S.Ct. 2562. The Court cautioned not to read the “conduct, transaction, or occurrence” requirement, so broadly as to render meaningless the statute of limitations. Id. at 662-64, 125 S.Ct. 2562. Turning to the facts of the case, the Court concluded that the petitioner’s untimely amended petition did not relate back to the timely original petition because the two petitions “targeted separate episodes”: the pretrial interrogation of the witness, and the petitioner’s own interrogation, which occurred “at a different time and place.” Id. at 660, 125 S.Ct. 2562.

Though Mayle dealt with two separately designated claims — -a Fifth Amendment violation versus a Sixth Amendment violation — its reasoning equally applies to claims with the same designation — here, ineffective assistance of counsel — that do not rely on the same common core of operative facts, or that target separate episodes. For instance, in United States v. Clark, 637 Fed.Appx. 206, 209 (6th Cir. 2016), the petitioner raised in his original petition a claim that appellate counsel was ineffective for not challenging his career offender enhancement. We held that the claim in the petitioner’s amended petition that appellate counsel was ineffective in not challenging the drug amounts used to calculate the petitioner’s base offense level “was an entirely new claim.” Id. Therefore, his amended petition did not relate back to his original petition. Id.; see also Evans v. United States, 284 Fed.Appx. 304, 305, 313 (6th Cir. 2008) (concluding that the claim in the petitioner’s amended petition that trial counsel gave him incorrect advice regarding the sentence he would receive through a plea agreement versus after trial did not relate back to his timely petition raising ineffective assistance of counsel for failure to pursue a particular avenue of impeachment); Cox v. Curtin, 698 F.Supp.2d 918, 931 (W.D. Mich. 2010) (“[A] petitioner does not satisfy the Rule 15 ‘relation back' standard merely by raising some type of ineffective assistance in the original petition, and then amending the petition to assert another ineffective assistance claim based upon an entirely distinct type of attorney misfeasance.” (quoting United States v. Ciampi, 419 F.3d 20, 24 (1st Cir. 2005))). But see Cowan v. Stovall, 645 F.3d 815, 819 (6th Cir. 2011) (stating that the petitioner’s amended petition would have related back to the original petition because they both asserted that counsel was ineffective for failure to interview witnesses).

As an initial matter, Watkins’ original petition does not raise any facts supporting the underlying ineffective assistance of counsel claim. The only portion of the petition relating to ineffective assistance of counsel reads as follows: “Defendant was denied his state and federal constitutional right to effective assistance of trial counsel, by counsels [sic] failure to investigate and raise a defense, and also ineffective assistance. of appellate, by counsel [sic] failure to raise meritorios [sic] issues, and failure to perfect a competent appeal.” Original Habeas Petition 11, ECF No. 1, Page ID 11. It says nothing of counsel’s failure to request another psychiatric evaluation. It alleges only that trial counsel failed “to investigate and raise a defense.” Id. Counsel’s conduct in investigating before trial and presenting a defense to the jury during trial is a distinct “episode” from counsel’s conduct in not requesting that the judge order a fifth psychiatric evaluation during trial. To read the original petition’s language more expansively would contravene the Supreme Court’s warning against construing “conduct, transaction, or occurrence” so broadly as to render meaningless AEDPA’s statute of limitations. See Mayle, 545 U.S. at 662-64, 125 S.Ct. 2562. Watkins’ amended petition, therefore, does not relate back to the original petition.

B.

Next, regarding Watkins’ equitable tolling argument, the State argues that Watkins cannot demonstrate extraordinary circumstances based on his alleged incompetence. First, Watkins alleges he was diagnosed with a mental illness in 2007, not deemed incompetent. Moreover, the State insists, Watkins cannot show that incompetence caused his untimely filing, as illustrated by the fact that, during the limitations period, he raised the instant ineffective assistance of counsel claim in state court through appellate counsel, and filed various pro se pleadings. Watkins responds simply that the State’s argument “fail[s] to give any weight to the mental illness he suffered at the time he filed his initial § 2254 petition, without the benefit of counsel, and that the mental illness inhibited his efforts at compiling a comprehensive petition.” CA6 R. 18, Ap-pellee Br. at 31.

AEDPA’s limitations period is not jurisdictional, so may be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 645-49, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). A petitioner is entitled to equitable tolling only if he establishes “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. at 649, 130 S.Ct. 2549 (citation omitted). We have held that a petitioner’s mental incompetence can constitute an extraordinary circumstance that tolls the limitations period, but the petitioner bears the burden to establish that “(1) he is mentally incompetent and (2) his mental incompetence caused his failure to comply with AEDPA’s statute of limitations.” Ata v. Scutt, 662 F.3d 736, 742 (6th Cir. 2011). But we must take care to only apply the equitable tolling doctrine “sparingly.” Id. at 741.

Watkins’ case is similar in some respects to that presented by the petitioner in Kitchen v. Bauman, 629 Fed.Appx. 743 (6th Cir. 2015). There, the petitioner alleged that he was mentally incompetent before trial, and that his incompetence carried through to the relevant tolling period. Id. at 747-48. However, the court determined that he presented no evidence of his mental health status during the limitations period and that the record suggested that he was stable. Id. The court also concluded that any alleged incompetency did not cause the untimely filing. Id. The petitioner was declared competent to stand trial twice before he was tried and nothing in the record indicated that his mental illness hindered his ability to assist trial counsel. Id. at 748. Moreover, during the limitations period, the petitioner filed a civil suit challenging his confinement, which also indicated that his mental status did not hinder his ability to make timely filings. Id.; see also Ramirez-Matias v. Lynch, 631 Fed.Appx. 339, 343-44 (6th Cir. 2015) (concluding that though the petitioner may have been mentally incompetent, her ability to reach out to attorneys to discuss her immigration status suggested that her psychological impairments did not prevent her timely filing).

Even assuming that Watkins was diligently pursuing his rights, he cannot establish entitlement to equitable tolling. First, like the petitioner in Kitchen, Watkins presents no evidence of his mental health status during the limitations period. The statute of limitations began to ran on August 25, 2009, Watkins, 143 F.Supp.Sd at 637, over two years after Watkins’ 2007 diagnosis. Like the petitioner in Kitchen, Watkins appears to argue that the 2007 diagnosis carried over into the limitations period. However, this argument fails for several reasons. First, mental illness is not the same as mental incompetence. See Cowans v. Bagley, 639 F.3d 241, 247-48 (6th Cir. 2011). Watkins was diagnosed with “Psychotic Disorder NOS” and given a treatment plan that included regular therapy and medication. 2007 Psychiatric Evaluation 1-4, ECF No. 15-23, Page ID 916-19. There is nothing to indicate that this diagnosis altered the previous evaluation deeming Watkins competent. Moreover, even assuming that failure to comply with the treatment plan would render him incompetent, Watkins does not allege that he failed to comply with the plan.

More importantly, Watkins has not established that any alleged incompetency caused his untimely filing. See Ata, 662 F.3d at 742. In fact, after the limitations period began to ran, Watkins filed at least two timely motions in state court, one through counsel and one pro se, raising the instant ineffective assistance of counsel claim. Additionally, he timely filed, pro se, the original habeas petition. That he was able to make these timely filings indicates that his mental illness was not the cause of his untimely amended habeas petition. See Kitchen, 629 Fed.Appx. at 748. Though Watkins faults his mental illness for his failure to compile “a comprehensive petition,” CA6 R. 18, Appellee Br. at 31, “the relevant inquiry is whether petitioner’s mental incompetency prevented him from filing a timely petition, not a meritorious one,” Kitchen, 629 Fed.Appx. at 748. Consequently, Watkins’ “blanket assertion of mental incompetence is insufficient” for equitable tolling. See Ata, 662 F.3d at 742.

III.

For the foregoing reasons, we REVERSE the district court’s determination that Watkins’ amended petition was timely, DISMISS the portion of the petition pertaining to the ineffective assistance claim discussed herein, and REMAND for the district court to determine the timeliness — and if timely, the merits — of Watkins’ remaining claims consistent with the analysis we have employed in this opinion.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joel CROOKSTON, Plaintiff-Appellee, v. Ruth JOHNSON, Michigan Secretary of State, in her official capacity, Defendant-Appellant.
    No. 16-2490
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: December 21, 2016
    ON LETTER BRIEF: Ann M. Sherman, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Stephen R. Klein, PILLAR OF LAW INSTITUTE, Washington, D.C., Patrick M. Jaicomo, MILLER JOHNSON, Grand Rapids, Michigan, for Appellee.
    Before: COLE, Chief Judge, GUY and SUTTON, Circuit Judges.
   ORDER

PER CURIAM.

On October 24, 2016, the district court preliminarily enjoined the State of Michigan from enforcing its bans on ballot exposure and photography at the polls against voters taking “ballot selfies.” On October 28, this panel stayed the district court’s injunction. The presidential election has now come and gone, but the merits of the preliminary injunction are still before us. Meanwhile, the district court is proceeding to trial on the permanent injunction.

Both parties agree that summary reversal of the preliminary injunction is appropriate in light of our stay and the merits proceedings in the district court. It would serve no purpose to set a briefing schedule and issue a full opinion on the injunction’s merits. We considered the parties’ arguments regarding the plaintiffs likelihood of success when we issued the stay, and full briefing would be unlikely to alter our conclusions at this stage. If needed, this Court will revisit this case after trial, but there is no need to reconsider the same arguments on the same record.

For the reasons provided in the stay order, we reverse the district court’s grant of the plaintiffs motion for a preliminary injunction.


author: KETHLEDGE, Circuit Judge.

text:
    Randall Scott WALDMAN, et al., Appellant, v. Ronald B. STONE, Appellee.
    No. 16-5160
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: January 24, 2017
    Before: McKEAGUE, KETHLEDGE, and STRANCH, Circuit Judges.
   ORDER

KETHLEDGE, Circuit Judge.

We recently rejected Randall Waldman’s third appeal in this case, and closed with the following summary: ‘Waldman defrauded Stone more than a decade ago, and since then has subjected Stone to three rounds of litigation in the district court and in this court as Stone sought a remedy for the fraud. A handful of Wald-man’s arguments (among the baskets-full he has presented to us and the district court) have been meritorious; but Wald-man has repeatedly presented arguments that we have already rejected or for which he presented no support. Stone has borne the expense of responding to all those arguments. And in this appeal, as explained above, Waldman has presented arguments that Waldman or his counsel (subject to their right to attempt to show otherwise) should have known not to present.” Waldman v. Stone, No. 16-5160, 665 Fed.Appx. 432, 434-35, 2016 WL 7093992, at *2 (6th Cir. Dec. 6, 2016) (citation omitted). Stone thereafter moved under Federal Rule of Civil Procedure'll for sanctions in the amount of $4,157.50, which were his attorneys’ fees in the most recent appeal. Waldman filed a response. We construe the motion as a request for sanctions under Federal Rule of Appellate Procedure 38, and grant it. See CFE Grp., LLC v. Firstmerit Bank, ALA., 809 F.3d 346, 353 (7th Cir. 2015).

Rule 38 “affords us discretion to assess just damages when confronted with a frivolous appeal.” Miller v. Toyota Motor Corp., 554 F.3d 653, 654 (6th Cir. 2009) (internal quotation marks and citation omitted). “An appeal is frivolous if it is obviously without merit and is prosecuted for delay, harassment, or other improper purposes.” McDonald v. Flake, 814 F.3d 804, 816 (6th Cir. 2016) (citation omitted).

The scope of our remand after the second appeal is relevant to the question whether Waldman’s third appeal was frivolous. In Waldman’s first appeal, we held there was ample evidence that Waldman (along with attorney Bruce Atherton) had defrauded Stone, but we vacated the judgment on Article III grounds unrelated to the merits of Stone’s claims. The district court thereafter entered a new judgment in favor of Stone and against Waldman and Atherton, jointly and severally, for over $1 million in compensatory damages and $2 million in punitive damages. In the second appeal, we again affirmed that Waldman and Atherton had committed fraud, but we reduced Stone’s compensatory damages to $650,776 and vacated the court’s determination of joint and several liability. We remanded the case for the limited purpose of apportioning liability among the parties for Stone’s damages. On remand, the district court found Waldman and Atherton each 50% responsible (and Stone not responsible at all) for Stone’s compensatory and punitive damages. The court also reduced the amount of punitive damages from $2 million to $1.2 million to retain the 2:1 ratio of punitive to compensatory damages in its earlier judgment.

Waldman then brought his third appeal, in which he made four arguments. One of them challenged the district court’s decision to award punitive damages in the first place; another challenged the court’s use of a 2:1 ratio of punitive to compensatory damages. The district court had made both of those decisions, however, pursuant to our general remand after the first appeal in this case, not pursuant to our limited remand after the second. Hence both of these arguments, we said in rejecting them, were “patently beyond the scope of our limited remand and therefore out of bounds in this appeal.” Waldman, 665 Fed.Appx. at 433, 2016 WL 7093992, at *1. Moreover, we explained, Waldman had waived both of these arguments in his second appeal, which made them “doubly out of bounds” in the third. Id. Waldman offers no reason to revisit any of those characterizations. We therefore hold now what we strongly suggested then: both of these arguments were legally frivolous.

Waldman’s remaining two arguments in the third appeal concerned the district court’s apportionment of responsibility (50% to Waldman, 50% to Atherton) for Stone’s damages. In making one of those arguments — that Waldman bore 0% responsibility for Stone’s damages — Wald-man came “perilously close to arguing for a third time that he did not commit fraud at all: we rejected that argument on the merits in Waldman I, and when Waldman nonetheless made the same argument in Waldman II, we rejected it on the ground that we had ‘already rejected’ it in Wald-man I.” Id. at 434, 2016 WL 7093992, at *2. We conclude now that the peril was realized, and that Waldman’s argument on this point in the third appeal was for practical purposes a reiteration of an argument that we had twice rejected in the earlier appeals. Hence this argument in the third appeal was frivolous.

Waldman’s remaining argument in the third appeal was that Stone bore some of the fault for his damages because he should have uncovered Waldman’s fraud sooner. That argument was plainly merit-less — as we said then, “Waldman himself did everything in his power to prevent Stone from uncovering the fraud[,]” id.— but we do not think the argument was so obviously wrong as to be frivolous.

That Waldman included one argument that was plainly meritless rather than frivolous, however, does not deprive us of discretion to award sanctions under Rule 38. “It would be strange if by the happenstance of including one colorable (though losing) claim amidst an ocean of frivolous ones, a litigant could ward off all sanctions.” Hill v. Norfolk & W. Ry. Co., 814 F.2d 1192, 1200 (7th Cir. 1987) (awarding sanctions under Rule 38); see also Macklin v. City of New Orleans, 300 F.3d 552, 554 (5th Cir. 2002) (same); In re Perry, 918 F.2d 931, 934-35 (Fed. Cir. 1990) (same). Here, Waldman’s appeal was “obviously without merit[J” McDonald, 814 F.3d at 816. And Waldman “wasted our time and his adversary’s money” by submitting a brief largely “devoted to frivolous argumentation.” Hill, 814 F.2d at 1200. Thus, we conclude that Waldman’s third appeal on the whole was frivolous.

We therefore grant Stone’s motion, and order Waldman and his counsel, jointly and severally, to pay Stone $4,157.50. See, e.g., Top Entertainment v. Ortega, 285 F.3d 115, 120 (1st Cir. 2002).

So ordered.


text:
    Brendan LYSHE, Plaintiff-Appellant, v. Yale R. LEVY; Levy & Associates, LLC; Kirschenbaum, Phillips & Levy, PC; Krishna Velayudhan, Defendants-Appellees.
    No. 16-4026
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: April 20, 2017

      ON BRIEF: Steven C. Shane, Bellevue, Kentucky, Stephen R. Felson, Cincinnati, Ohio, for Appellant. Boyd W. Gentry, LAW OFFICE OF BOYD W. GENTRY, LLC, Beavercreek, Ohio, for Appellees.
    Before: GUY, SILER, and DONALD, Circuit Judges.
   OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Yale R. Levy, Levy & Associates, LLC, Kirschenbaum, Phillips & Levy, PC, and Krishna Velayudhan (collectively, “Appel-lees”) brought a collection action against Brendan Lyshe. Alleging that Appellees’ discovery requests violated state procedural rules, Lyshe brought a claim for relief under the Fair Debt Collection Practices Act (“FDCPA”). For the following reasons, we conclude that Lyshe did not suffer any concrete harm from Appellees’ alleged state procedural violations. Accordingly, we AFFIRM the district court’s judgment dismissing his claim for lack of jurisdiction.

I.

In 2016, Appellees brought a collection action against Lyshe. Soon after bringing the action, Appellees served Lyshe with discovery requests. They did not send a separate electronic copy, but instructed Lyshe to contact them if he would like an electronic copy. As part of the discovery, the requests for admission required that Lyshe verify that his responses were “true and correct to the best of [his] knowledge, information and belief,” and included a blank notary block. Ex. C, ECF No. 1-3, Page ID 12. It farther provided that any matter would be deemed admitted unless Lyshe made a sworn statement in compliance with the Ohio Rules of Civil Procedure.

Lyshe then brought suit, alleging that Appellees violated the FDCPA by failing to provide electronic discovery without prompting and requiring that the responses to the requests for admission be sworn and notarized. Appellees moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Relying on Spokeo, Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), the district court concluded that it lacked subject matter jurisdiction under Rule 12(b)(1), and dismissed the case on that ground. Specifically, it held that Lyshe did not plead any injury in connection with the alleged violations of the state procedural rules. According to the district court, Appellees did not violate the Ohio Rules of Civil Procedure by offering to send electronic copies of the discovery only upon Lyshe’s request. Regarding the alleged errors in the requests for admissions, the district court reasoned that Lyshe failed to allege that he was misled, that he felt compelled to make a sworn verification or engage a notary, or that he even responded to the challenged requests, so his allegations were insufficient to confer jurisdiction upon the federal courts. Lyshe appeals, arguing that this court has subject matter jurisdiction and that his complaint states a claim upon which relief may be granted.

II.

Article III of the Constitution limits the jurisdiction of federáis courts to hear only actual cases and controversies. U.S. Const, art. 3, § 2. The doctrine of standing aids us in defining these limits. The plaintiff bears the burden of establishing standing. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To satisfy the “irreducible constitutional minimum of standing,” the plaintiff must establish that: (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent rather than conjectural or hypothetical; (2) that there is a causal connection between the injury and the defendant’s alleged wrongdoing; and (3) that the injury can likely be redressed. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At dispute here is only whether Lyshe suffered an injury in fact. The existence of an abstract injury is insufficient for a plaintiff to carry his burden on this element. City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Rather, a plaintiff must establish that he has a “personal stake in the outcome of the controversy.” Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (2014) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)).

Whether a party has standing is an issue of the court’s subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Allstate Ins. Co. v. Global Med. Billing, Inc., 520 Fed.Appx. 409, 410-11 (6th Cir. 2013) (citing Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012)). We review such matters de novo. McGlone v. Bell, 681 F.3d 718, 728 (6th Cir. 2012).

III.

Lyshe maintains that Appellees violated the Ohio Rules of Civil Procedure by (1) failing to provide electronic discovery without a request from Lyshe; and (2) stating that the requests for admissions must be sworn and notarized or else be deemed admitted, and that these errors violate the FDCPA. Lyshe contends that prior to Spokeo, circuit case law established that a debt collector’s failure to follow state law procedural rules violated the FDCPA. He reasons that although Spokeo seemed to reexamine Article III standing in the context of intangible damages, it did not change the rule of law for standing and did not eliminate standing for cases like the one here involving intangible injuries. According to Lyshe, Congress created a cognizable intangible injury under the FDCPA by banning deceptive conduct made in connection with collection of a debt.

The Supreme Court in Spokeo dealt with a plaintiffs standing to sue under the Fair Credit Reporting Act (“FCRA”). 136 S.Ct. at 1544. To further its aim of ensuring accurate credit reporting, the FCRA imposes liability on an individual who willfully fails to comply with any of its requirements, including the requirement to follow reasonable procedures to attain the maximum accuracy of consumer reports. Id. at 1545. The plaintiff brought suit under the FCRA against a consumer reporting agency for reporting inaccurate information about him in violation of the statutory requirements. Id. at 1546. In resolving this issue, the Court took the opportunity to clarify the injury-in-fact requirement for standing; specifically, the necessity that the injury be concrete. It noted that even intangible injuries can be concrete. Id. at 1549. Further, it observed that Congress may “elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.” Id. (alteration in original) (quoting Lujan, 504 U.S. at 578, 112 S.Ct. 2130).

Yet, this does not eliminate the requirement that a plaintiff actually suffer harm that is concrete. Even though Congress may “identify intangible harms that meet minimum Article III requirements,” id. at 1549, Spokeo emphasized that Congress could not “erase Article Ill’s standing requirements by statutorily granting the right to sue,” id. at 1547-48 (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)). Importantly, “Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.” Id. at 1549. To that end, though declining to take a position on whether the circuit court erred in finding the plaintiff had standing, the Court held that “bare procedural violation[s],” like the violation alleged by the plaintiff, could not satisfy the injury-in-fact requirement if it is “divorced from any concrete harm.” Id.

Therefore, under Spokeo, Lyshe would have us hold that the FDCPA created a concrete harm — receiving false information in connection with debt collection activities — that he suffered when Appellees made misstatements in their discovery requests about state procedural rules. This view of the law is untenable.

Initially, though Spokeo allows for a bare procedural violation to create a concrete harm, the procedural violation alleged here — a violation of a state law procedure not required under FDCPA — is not the type contemplated by Spokeo, which dealt with the failure to comply with a statutory procedure that was designed to protect against the harm the statute was enacted to prevent. The goal of the FDCPA is to eliminate abusive debt collection practices. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010). Yet, the sort of harm alleged by Lyshe, namely, that he would have been required to visit a notary and contact Appellees to obtain electronic copies of the discovery, was not the type of harm the FDCPA was designed to prevent. Moreover, Lyshe does not even allege that he suffered this harm, and concedes that he is at no risk to suffer this harm. The harm alleged is insufficient to confer standing before the federal courts. An examination of our own precedents and those of our sister circuits supports our conclusion.

This circuit has had the occasion to interpret Spokeo and has concluded that a statutory violation in and of itself is insufficient to establish standing. For instance, the plaintiffs in Soehnlen v. Fleet Owners Insurance Fund, filed suit alleging that the defendants violated the Affordable Care Act by failing to comply with its mandate that health plans eliminate certain caps on benefits, which constituted a violation of their rights under the Employee Retirement Security Act (“ERISA”). 844 F.3d 576, 579-80 (6th Cir. 2016). We rejected the plaintiffs argument that a mere allegation that the defendants violated ERISA was sufficient to establish standing, instead holding that, armed with only these alleged violations the plaintiffs “[could] not hope to satisfy the concreteness prong of the injury-in-fact requirement.” Id. at 582. Lyshe’s case provides an even weaker case for standing because the procedural violations alleged are not of the FDCPA.

By contrast, in Galaria v. Nationwide Mutual Insurance Co., when the plaintiffs brought suit under the FCRA after hackers stole their personal information from the defendants, we held that the plaintiffs satisfied the injury-in-fact requirement by alleging that the theft of their personal information constitutes “a substantial risk of harm, coupled with reasonably incurred mitigation costs.” 663 Fed.Appx. 384, 385, 388 (6th Cir. 2016). Unlike Lyshe, the plaintiffs in Galaria alleged a concrete harm arising from the violation of the statute — a risk that their data would be used for fraudulent purposes, id. at 388 — rather than just a violation of the statute. Notably, we observed that concerns about standing may arise where the alleged violation is procedural and the plaintiff suffered no harm, but that issue was not before us because the plaintiffs alleged a concrete injury. See id. at 391 n.4 (citing Spokeo, — U.S. -, 136 S.Ct. 1540, 194 L.Ed.2d 635).

In support of his position, Lyshe points us to Church v. Accretive Health, Inc., 654 Fed.Appx. 990 (11th Cir. 2016) (per cu-riam). There, the Eleventh Circuit held that the plaintiff established standing by alleging that the defendant violated the FDCPA by failing to send her certain required disclosures, even though she suffered no actual harm from this error. Id. at 991, 995. Noting the Supreme Court’s decision in Spokeo, Church held that “through the FDCPA, Congress has created a new right — the right to receive the required disclosures in communications governed by the FDCPA — and a new injury — not receiving such disclosures.” Id. at 994. According to Church, the plaintiffs harm in not receiving information to which she was statutorily entitled was sufficiently concrete to establish standing. Id. at 995. Under the theory espoused in Church, the FDCPA gave Lyshe a right — the right not to receive false information in connection with the collection of a debt — and Lyshe suffered harm arising from that right— receiving false information about state discovery procedures.

Notwithstanding the seeming persuasiveness of this authority, we decline to follow it for several reasons. First, this is an unpublished decision, which is not binding on the Eleventh, or any other Circuit. See U.S. Ct. of App. 11th Cir. Rule 36-2. Second, the reasoning employed by Church was rejected several months later in the published Eleventh Circuit decision in Nicklaw v. Citimortgage, Inc., which dealt with a mere violation of a state law procedural rule like Lyshe alleges here. 839 F.3d 998, 1000 (11th Cir. 2016). In Nicklaw, the Eleventh Circuit was faced with the issue of whether the plaintiff had standing to sue when he alleged only that the defendant failed to record a satisfaction of the plaintiffs mortgage within the time period required by state law, even though the state-law violation had subsequently been remedied. Id. The court held that the plaintiffs allegations were insufficient to establish standing. Id. It rejected the plaintiffs argument, utilized by Church, 654 Fed.Appx. at 994, that the plaintiff suffered a concrete harm by the defendant’s failure to comply with this rule simply because the state legislature intended to create a right to have the satisfaction of a mortgage timely recorded. 839 F.3d at 1002-03. Instead, the Eleventh Circuit noted that the plaintiff alleged neither harm nor a risk of harm, and emphasized that standing is not met simply because a statute creates a legal obligation and allows a private right of action for failing to fulfil this obligation. Id. at 1003 (citing Spokeo, 136 S.Ct. at 1550). We find this reasoning persuasive and more in line with Spokeo's guidance.

Finally, the approach in Church that Lyshe would have us adopt is against the weight of the authority of our sister circuits. Take for instance the Eighth Circuit’s decision in Braitberg v. Charter Commc’ns, Inc., 836 F.3d 925 (8th Cir. 2016). The allegations of the plaintiff there — that the defendant retained personally identifiable information in violation of the Cable Communications Policy Act, id. at 926 — was, on its own, insufficient to establish standing. Id. at 929-31. “With the benefit of Spokeo’s guidance,” Braitberg concluded that the plaintiffs failure to allege harm, namely, the disclosure of personal information to any third party, was fatal to his claim of standing. Id. at 930-31. Similarly, in Strubel v. Comenity Bank, the Second Circuit construed Spokeo to mean that (1) a plaintiff may establish standing based on an alleged procedural violation if Congress conferred that procedural right to protect a plaintiffs concrete interest and if that violation presents a risk of harm to that interest; and (2) even if Congress conferred procedural rights, a plaintiffs claim for standing fails if he cannot demonstrate a material risk of harm to the underlying interest. 842 F.3d 181, 190 (2d Cir. 2016).

Other circuits reach analogous results. See, e.g., Beck v. McDonald, 848 F.3d 262, 271 n.4 (4th Cir. 2017) (finding Spokeo inapplicable where the plaintiffs alleged that more than just statutory violations constituted an injury in fact); Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (“Unlike in Spokeo, where a violation of a procedural requirement minimizing reporting inaccuracy may not cause actual harm or present any material risk of harm, the telemarketing text messages at issue here, absent consent, present the precise harm and infringe the same privacy interests Congress sought to protect in enacting the [Telephone Consumer Protection Act].” (internal citations omitted)); In re Horizon Healthcare Servs. Inc. Data Breach Litigation, 846 F.3d 625, 637-40 (3d Cir. 2017) (concluding that Spokeo did not intend to change the traditional standard of establishing standing, observing that there may be instances where a mere procedural violation does not establish an injury in fact, but concluding that that issue was not before the court because plaintiffs alleged that defendants improperly disseminated their private information — “the very injury that FCRA is intended to prevent”); Meyers v. Nicolet Rest, of De Pere, LLC, 843 F.3d 724, 727 (7th Cir. 2016) (concluding that the plaintiffs allegation that the defendant did not truncate the expiration date on his receipt, as required by the Fair and Accurate Credit Transactions Act, did not establish harm or risk of harm sufficient to confer standing); Lee v. Verizon Commc’ns, Inc., 837 F.3d 523, 530 (5th Cir. 2016) (“[B]ecause [the plaintiffs] ‘concrete interest’ in the plan ... was not alleged to be at risk from the purported statutory deprivation, [the plaintiff has] not suffered any injury that was sufficiently ‘concrete’ to confer standing.”).

Lastly, although Lyshe is correct that Spokeo clarified, rather than altered, our standing jurisprudence, his reliance on pre-Spokeo cases is misplaced. In the process of collecting the plaintiffs outstanding debt, the defendants in McCollough v. Johnson, Rodenburg & Lauinger, LLC, served the plaintiff requests for admission that requested that the plaintiff admit things the defendants knew were not true, and failed to include an explanation, required under state law, that requests would be deemed admitted if the plaintiff failed to respond. 637 F.3d 939, 946, 952 (9th Cir. 2011). The Ninth Circuit concluded that these requests violated the FDCPA, notwithstanding the fact that the plaintiff timely denied all of the requests. Id. at 952. Unlike the instant case, the defendants intentionally misrepresented facts concerning the plaintiffs debt that they knew to be false, and did not inform the plaintiff that these falsities would be deemed true absent an objection from the plaintiff. The harm in McCollough arose from the abusive debt collection practices that the FDCPA was designed to prevent. Lyshe’s reliance on Sayyed v. Wolpoff & Abramson is even further from the point. Though Sayyed involved a plaintiffs allegations that the defendant violated the FDCPA by serving interrogatories that did not state that they were from a debt collector and contained various false statements, it simply held that the defendants were not entitled to absolute immunity simply because these documents were made in the course of judicial proceedings. 485 F.3d 226, 228-32 (4th Cir. 2007). It was not presented with the issue of whether such allegations were sufficient to confer it with jurisdiction, or even whether those allegations were sufficient to state a claim under the FDCPA.

IV.

In sum, we conclude that Lyshe’s bald allegations of state procedural violations that did not result in any concrete harm are insufficient to confer standing before this court. The harm suffered by Lyshe, namely, the mere prospect of a slightly less convenient discovery process, is not the type of abusive debt collection practice the FDCPA was designed to prevent; therefore, it is not a concrete harm. Accordingly, we AFFIRM.

      . As relevant here, the discovery rules under the Ohio Rules of Civil Procedure state that a party serving interrogatories or requests for admission "shall serve the party with an electronic copy of the [discovery].... provided on computer disk, by electronic mail, or by other means agreed to by the parties.” Ohio R. Civ. P. 33(A), 36(A). The party may be relieved of this requirement if they are unable to comply. Id. Regarding requests for admission, the rules provide that the court may deem a matter admitted if the party fails to timely serve upon the party requesting the admission a response "signed by the party or by the party's attorney” or fails to comply with any other requirements of the rule. Ohio R. Civ. P. 36(A)(1), (3). We are skeptical about whether Appellees violated the Ohio rules with respect to the requirement to provide electronic discovery, but even assuming their failure to initially provide electronic discovery and their imposition of a requirement for notary verification are false, for the reasons discussed below, Lyshe still fails to establish standing.