UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

THOMASINE MARTIN, as personal 

representative for the estate of Charles L. 

Martin, deceased, 

 Plaintiff - Appellee, 

v. 

RICHARD GREISMAN, M.D., in his 

individual capacity, 

 Defendant - Appellant, 

and 

BRYCE BLISS, in his individual capacity; 

STATE OF OKLAHOMA ex. rel. 

OKLAHOMA DEPARTMENT OF 

CORRECTIONS; LINDSAY 

MUNICIPAL HOSPITAL AUTHORITY, 

 Defendants. 

No. 17-7076 

(D.C. No. 6:16-CV-00080-RAW) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, HARTZ, and MORITZ, Circuit Judges. 

_________________________________ 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It may 

be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 

10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

October 26, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

 Richard Greisman appeals the district court’s order granting in part and 

denying in part his motion for sanctions and its subsequent order granting attorney 

fees of $0. Seeing no error in the district court’s rulings, we affirm. 

I. Background 

Charles Martin suffered various health problems while serving a sentence in an 

Oklahoma prison. Greisman, an orthopedic physician, treated Martin at a local 

hospital for a recurring foot infection. Martin died less than a year after his release 

from prison. Thomasine Martin, as personal representative of Martin’s estate,1

 sued 

Greisman and several others alleging they provided Martin with inadequate medical 

care. 

On Greisman’s motion, the district court dismissed all of the Estate’s claims 

except its 42 U.S.C. § 1983 claim for violation of Martin’s Eighth Amendment rights. 

Nevertheless, approximately four months later, discussions between the parties’ 

counsel resulted in Greisman stipulating to the Estate’s voluntary dismissal of its 

§ 1983 claim but reserving the right to pursue sanctions.2

 1

 For ease of reference and to avoid confusion, we refer to the appellant as “the 

Estate.” 

2

 Specifically, about seven weeks after the district court denied Greisman’s 

request to dismiss the § 1983 claim, Greisman’s counsel emailed the Estate’s counsel 

urging dismissal, stating “you’re never going to show [Greisman] is a state actor or 

deliberately indifferent.” Aplt. App. Vol. 1 at 73. The Estate’s counsel subsequently 

advised Greisman’s counsel that the Estate would probably dismiss the claim, but 

that counsel wanted to discuss the matter further with his client. The next day, 

Greisman’s counsel told the Estate’s counsel that Greisman would stipulate to 

dismissal only on the condition that Greisman reserved the right to seek sanctions. 

After further exchanges about the terms of dismissal, the Estate moved to dismiss the 

claim with prejudice. 
3 

Greisman then moved for attorney fees and costs against the Estate “and/or 

[its] counsel.” Aplt. App. Vol. 1 at 50. He recognized the general rule that each 

party to an action pays his own attorney’s fees unless a statute or contract provides 

otherwise. See Marks v. Gen. Revenue Corp., 568 U.S. 371, 382 (2013) (describing 

the “American Rule”). But Greisman sought fees based on three theories: (1) the 

court’s inherent authority to impose sanctions, (2) 28 U.S.C. § 1927, and 

(3) 42 U.S.C. § 1988. Following a hearing, the district court concluded Greisman 

was the prevailing party in the lawsuit, but denied sanctions under its inherent 

authority and § 1927. However, because of the lack of evidence supporting the 

Estate’s claim, the district court found it was frivolous, granted sanctions under 

§ 1988, and invited Greisman to file an application for fees. 

Greisman requested fees of $56,114.69. The Estate objected, arguing it 

couldn’t pay and that § 1988 didn’t authorize awarding fees against its counsel. 

Under the circumstances, the Estate argued, “a reasonable attorney fee under § 1988 

is zero.” Aplt. App. Vol. 2 at 367. The district court agreed, first concluding that 

§ 1988 didn’t allow it to assess fees against the Estate’s counsel. Further, the court 

held that because there were no assets in the estate,3

 “the reasonable fee here is zero.” 

Thus, the district court granted attorney fees “against Plaintiff in the nominal amount 

of zero.” Aplt. App. Vol. 2 at 404. 

 3

 Greisman didn’t specifically dispute the Estate’s assertion that it had no 

assets. 
4 

On appeal, Greisman argues the district court erred by (1) refusing to assess 

fees against the Estate’s counsel under § 1988, (2) awarding fees against the Estate of 

$0, (3) denying sanctions under the court’s inherent authority, and (4) failing to 

impose sanctions under § 1927. 

II. Standard of Review 

We review the district court’s ruling on “an attorney-fee sanction, whether 

rooted in statute, rule, or a court’s inherent authority, only for an abuse of 

discretion.” Farmer v. Banco Popular of N. Am., 791 F.3d 1246, 1256 (10th Cir. 

2015). The court abuses its discretion when it fails to exercise meaningful discretion, 

commits an error of law, or relies on clearly erroneous findings of fact. Id. 

III. 42 U.S.C. § 1988 

Greisman argues the district court erred in its assessment of fees under § 1988. 

Specifically, he claims the court erred by refusing to assess fees against the Estate’s 

counsel and by awarding fees against the Estate of $0. Under § 1988, the court may 

allow the prevailing party in a § 1983 action “a reasonable attorney’s fee.” 

§ 1988(b). The statute authorizes the “court to award attorney’s fees to a defendant 

upon a finding that the plaintiff’s action was frivolous, unreasonable, or without 

foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (internal quotation marks 

omitted). 

A. Refusal to Assess Fees Against Counsel 

As noted, the district court concluded it lacked authority to assess fees against 

the Estate’s counsel under § 1988. Indeed, we have observed (albeit in the context of 
5 

discussing sanctions under § 1927) that fees awarded under “§ 1988 [are] not 

available against attorneys.” Steinert v. Winn Grp., Inc., 440 F.3d 1214, 1222 

(10th Cir. 2006). Similarly, other circuits have held that “§ 1988 does not authorize 

the award of attorneys’ fees against [the] plaintiff’s attorney.” Brown v. Borough of 

Chambersburg, 903 F.2d 274, 276-77 (3d Cir. 1990); see Smith v. Detroit Fed’n of 

Tchrs. Local 231, 829 F.2d 1370, 1374 n.1 (6th Cir. 1987); Hamer v. Lake Cty., 

819 F.2d 1362, 1370 (7th Cir. 1987); Oliveri v. Thompson, 803 F.2d 1265, 1272 

(2d Cir. 1986). And the Supreme Court has explained that the language of § 1988 

and its legislative history suggest “the statute was not intended to permit recovery 

from opposing counsel.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 761 & n.9 

(1980). Thus, we agree with the district court that it lacked authority to assess fees 

against counsel under § 1988.4

 B. Fee Award of $0 

The district court awarded attorney fees against the Estate “in the nominal 

amount of zero.” Aplt. App. Vol. 2 at 404. Greisman argues the court erred because 

“nominal damages cannot be zero.” Opening Br. at 12. But despite its use of the 

word “nominal,” the district court simply ruled “that the reasonable fee . . . [was] 

 4

 Alternatively, Greisman argues that even if § 1988 doesn’t allow fee awards 

against opposing counsel, the Estate waived this argument by making it for the first 

time after the hearing on his motion for sanctions. But the district court didn’t enter 

a final fee award at the hearing and the Estate raised the issue with Greisman’s 

counsel prior to post-hearing briefing, giving Greisman ample opportunity to brief 

the matter before the court entered a fee award. 
6 

zero.” Aplt. App. Vol. 2 at 404. And Greisman cites no authority suggesting a 

reasonable attorney fee can’t be $0. 

In determining that the reasonable attorney fee was $0, the district court 

correctly found that § 1988 didn’t allow it to assess fees against counsel. It also 

appropriately recognized that the Estate had no assets. See Roth v. Green, 466 F.3d 

1179, 1194 (10th Cir. 2006) (“[A] non-prevailing plaintiff’s ability to pay . . . may be 

considered when determining the amount of the attorneys’ fees to be awarded against 

that party.” (emphasis and internal quotation marks omitted)). Finally, the court 

noted its reluctance to grant any sanctions and emphasized that the Estate had 

voluntarily dismissed the claims against Greisman5

 without subjecting him to a 

deposition or summary judgment briefing. Under these circumstances, we conclude 

that the district court didn’t abuse its discretion in awarding attorney fees of $0. 

IV. Inherent Authority 

Greisman next argues the district court erred by refusing to use its inherent 

authority to sanction the Estate’s counsel. 

A court has the inherent authority to sanction an attorney “for bad faith 

conduct in litigation.” Sun River Energy, Inc. v. Nelson, 800 F.3d 1219, 1227 

(10th Cir. 2015) (internal quotation marks omitted). This allows it to assess fees 

against an attorney who acts “in bad faith, vexatiously, wantonly, or for oppressive 

 5

 Even in its prior order the district court recognized that “[a]ny eventual 

amount of fees awarded to . . . Greisman will be substantially mitigated as a result of 

Plaintiff’s voluntary dismissal of the case.” Aplt. App. Vol. 1 at 225. 
7 

reasons.” Id. (internal quotation marks omitted). To warrant fees on this ground, we 

have required courts to “make a finding of bad intent or improper motive.” Mountain 

West Mines, Inc. v. Cleveland-Cliffs Iron Co., 470 F.3d 947, 954 (10th Cir. 2006) 

(internal quotation marks omitted). 

The district court didn’t find that the Estate’s attorney acted in bad faith. 

Rather, after questioning him at length, the district court faulted counsel for failing to 

recognize sooner the lack of evidence supporting the claim against Greisman. See

Aplt. App. Vol. 1 at 260 (noting the lack of evidence supporting the claim and stating 

“[i]t is a case that never came together, and it wasn’t recognized soon enough, and it 

shouldn’t have been brought based upon the records and facts that we’ve established 

here” (emphasis added)). Greisman argues the lack of evidence shows the Estate and 

its attorney “acted in bad faith and vexatiously.” Opening Br. at 25 (internal 

quotation marks omitted). But this conclusion, without more, doesn’t establish that 

counsel brought the claim in bad faith. See Mountain West Mines, Inc., 470 F.3d at 

954 (“Although a claim may be so frivolous as to reflect impermissible conduct, the 

present matter falls into the much larger category of cases in which a finding of 

subjective wrongdoing is required to support a fee award.” (citations and internal 

quotation marks omitted)). Moreover, the district court here declined to find counsel 

acted vexatiously, see Aplt. App. Vol. 1 at 258, which Greisman hasn’t shown was 

clearly erroneous, see Farmer, 791 F.3d at 1256 (the district court abuses its 

discretion when it relies on clearly erroneous findings of fact). 
8 

In short, Greisman hasn’t shown that the district court abused its discretion by 

refusing to exercise its inherent authority to sanction counsel. 

V. 28 U.S.C. § 1927 

Nor did the district court abuse its discretion by denying Greisman’s request to 

sanction the Estate’s counsel under § 1927. 

Under that section, “[a]ny attorney . . . 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. “Sanctions under § 1927 are 

appropriate when an attorney acts recklessly or with indifference to the law.” 

Steinert, 440 F.3d at 1221 (internal quotation marks omitted). “This is an extreme 

standard, and fees should be awarded only in instances evidencing a serious . . . 

disregard for the orderly process of justice.” Baca v. Berry, 806 F.3d 1262, 1268 

(10th Cir. 2015) (internal quotation marks omitted). 

 The district court here did find that the Estate’s counsel “did very little.” Id. 

And it is true that an attorney’s failure to act can be “objectively unreasonable and 

vexatious and multiply the proceedings in a case by causing the opposing party to file 

motions to compel action.” Baca, 806 F.3d at 1278. But the district court also found 
9 

that the Estate’s attorney didn’t “unreasonably and vexatiously multipl[y the] 

proceedings.” Aplt. App. Vol. 1 at 258. This finding is supported by the record.6

 

Under these circumstances, we conclude the district court didn’t abuse its 

discretion by denying sanctions under § 1927. 

VI. Conclusion 

 We affirm the district court’s order granting in part and denying in part 

Greisman’s motion for sanctions as well as its subsequent order granting fees of $0. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge 

 6

 It appears Greisman filed a motion to compel responses to discovery, but he 

did so only after the parties had conferred regarding the terms of dismissal and after 

the Estate’s counsel had advised Greisman’s counsel that the Estate would probably 

dismiss the claim. Even if the claim should have been dismissed sooner, the Estate’s 

counsel didn’t force Greisman’s deposition or maintain the action through summary 

judgment or trial. Moreover, the district court credited the Estate’s attorney for 

dismissing the claim at Greisman’s request and faulted Greisman’s lawyer for “the 

flurry of activity” at the end of the proceedings—activity the court characterized as 

“uncalled for.” Aplt. App. Vol. 1 at 259.