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 ha s determined unanimously that oral argument wo uld not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral argument . This order and judgment is no t binding precedent, except under the doctrines of law of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuas ive 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 Court2 Richard Greisman appeals the di strict court’s order granting i n part and denying in part his motion for sanctions and its subsequent ord er granting attorney fees of $0. Seeing no error in t he district court’s rulings, w e affirm. I. Background Charles Martin suffered various h ealth problems while serving a sentence in an Oklahoma prison. Greisman, an or thopedic physician, treated Ma rtin at a local hospital for a recurring foot i nfection. Martin died less than a year after his release from prison. Thomasine Martin, as personal representative of M artin’s estate, 1 sued Greisman and several others alle ging they provided Martin with inadequate medical

care. On Greisman’s motion, the distric t court dismissed all of the E state’s claims except its 42 U.S.C. § 1983 clai m for violation of Martin’s Eig hth Amendment rights. Nevertheless, approximately four m onths later, discussions betw een the parties’ counsel resulted in Greisman st ipulating to the Estate’s volunt ary dismissal of its § 1983 claim but reserving th e right to pursue sanctions. 2

1 For ease of reference and to avo id confusion, we refer to the appellant as “the Estate.” 2 Specifically, about sev en weeks after the district court denie d Greisman’s request to dismiss the § 1983 cl aim, 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.” Ap lt. App. Vol. 1 at 73. The Estat e’s counsel subsequently advised Greisman’s counsel that the Estate would probably dismi ss the claim, but that counsel wanted to discuss th e matter further with his clie nt. The next day, Greisman’s counsel told the Esta te’s counsel that Greisman woul d stipulate to dismissal only on the condition th at Greisman reserved the righ t to seek sanctions. After further exchanges about the terms of dismissal, the Estat e moved to dismiss the claim with prejudice.3 Greisman then moved for attorney fees and costs against the Est ate “and/or [its] counsel.” Aplt. App. Vol . 1 at 50. He recognized the ge neral rule that each party to an action pays his own attorney’s fees unless a statut e or contract provides otherwise. See Marks v. Gen. Revenue Corp. , 568 U.S. 371, 382 ( 2013) (describing the “American Rule”). But Greisma n sought fees based on three theories: (1) the court’s inherent authority to im pose 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 u nder its inherent authority and § 1927. However, b ecause of the la ck of evidence supporting the Estate’s claim, the district c ourt found it was fr ivolous, gran ted sanctions under § 1988, and invited Greisman to file an application for fees. Greisman requested fees of $56, 114.69. The Estate objected, ar guing it couldn’t pay and that § 1988 di dn’t authorize awarding fees aga inst its counsel. Under the circumstances, the Esta te argued, “a reasonable attor ney 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 coun sel. Further, the court held that because there wer e no assets in the estate, 3 “the reasonable fee here is zero.” Thus, the district court granted attorney fees “against Plainti ff in the nominal amount of zero.” Aplt. App. Vol. 2 at 404.

3 Greisman didn’t specifically dis pute the Estate’s assertion th at it had no assets.4 On appeal, Greisman argues the di strict court erred by (1) refu sing to assess fees against the Estate’s counsel under § 1988, (2) awarding fe es against the Estate of $0, (3) denying sanctions under t he 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 sanct ion, 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 discr etion when it fails to exerci se meaningful discretion, commits an error of l aw, or relies on clea rly erroneous finding s of fact. Id

. III. 42 U.S.C. § 1988 Greisman argues the district cour t erred in its assessment of f ees under § 1988. Specifically, he claims the cour t erred by refusing to assess f ees against the Estate’s counsel and by awarding fees again st the Estate of $0. Under § 1988, the court may allow the prevailing party in a § 1983 action “a reasonable att orney’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, unrea sonable, 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 c oncluded it lacked authority to a ssess fees against the Estate’s counsel under § 1 988. Indeed, we have observed (a lbeit in the context of5 discussing sanctions under § 1927 ) that fees awarded under “§ 1 988 [are] not available against attorneys.” Steinert v. Winn Grp., Inc. , 440 F.3d 1214, 1222 (10th Cir. 2006). Similarly, othe r 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 C ourt has explained that the l anguage of § 1988 and its legislative history sugge st “the statute was not intend ed to permit recovery from opposing counsel.” Roadway Express, Inc. v. Piper , 447 U.S. 752, 761 & n.9 (1980). Thus, we agree with the d istrict court that it lacked authority to assess fees against counsel under § 1988. 4 B. Fee Award of $0 The district court awarded attorn ey fees against the Estate “in the nominal amount of zero.” Aplt. App. Vol . 2 at 404. Greisman argues th e court erred because “nominal damages cannot be zer o.” Opening Br. at 12. But desp ite its use of the word “nominal,” the district cour t simply ruled “that the reaso nable fee . . . [was]

4 Alternatively, Greisman argues that even if § 1988 doesn’t all ow fee awards against opposing counsel, the Est ate waived this argument by ma king it for the first time after the hearing on his mo tion for sanctions. But the di strict court didn’t enter a final fee award at the hearing and the Estate raised the issu e with Greisman’s counsel prior to post-hearing br iefing, giving Greisman ample o pportunity to brief the matter before the cour t entered a fee award.6 zero.” Aplt. App. Vol. 2 at 404 . And Greisman cites no author ity suggesting a reasonable attorney fee can’t be $0. In determining that the reasona ble attorney fee was $0, the dis trict court correctly found that § 1988 didn’ t allow it to assess fees agai nst 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 ab ility to pay . . . may be considered when determining th e amount of the a ttorneys’ fees t o be awarded against that party.” (emphasis and intern al quotation marks omitted)). Finally, the court noted its reluctance to grant a ny sanctions and emphasized that the Estate had voluntarily dismissed the claims against Greisman 5 without subjecting him to a deposition or summary j udgment briefing. Under these circumsta nces, we conclude that the district court didn’t a buse its discretion in awarding attorney fees of $0. IV. Inherent Authority Greisman next argues the distri ct court erred by refusing to us e its inherent authority to sanction the Estate’s counsel. A court has the inherent author ity 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 quot ation marks omitted). This allo ws it to assess fees against an attorney who acts “in bad faith, vexatiously, wanton ly, or for oppressive

5 Even in its prior order the dis trict court recognized that “[a ]ny eventual amount of fees awarded to . . . G reisman will be substantially mitigated as a result of Plaintiff’s voluntary dismissal of the ca se.” Aplt. App. Vol. 1 at 225.7 reasons.” Id . (internal quotation marks omi tted). To warrant fees on this ground, we have required courts to “make a finding of bad intent or improp er 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 th at the Estate’s attorney acted in bad faith. Rather, after questioning him at l ength, the district court fau lted counsel for failing to recognize sooner the lack of evid ence supporting the claim agai nst Greisman. See Aplt. App. Vol. 1 at 260 (noting the lack of ev idence supportin g 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 bas ed upon the records and facts th at we’ve established here” (emphasis added)). Greis man 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 t his conclusion, without more, d oesn’t establish that counsel brought the c laim in bad faith. See Mountain West Mines, Inc. , 470 F.3d at 954 (“Although a claim may be s o frivolous as to reflect imperm issible conduct, the present matter falls into the muc h larger category of cases in which a finding of subjective wrongdoing is require d to support a fee award.” (cit ations and internal quotation marks omitted)). More over, the district court here d eclined 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 dis trict court abuses its discretion when it relies on cl early erroneous findings of fact ).8 In short, Greisman hasn’t shown th at the district court abused its discretion by refusing to exercise its inhere nt authority to sanction counsel

. V. 28 U.S.C. § 1927 Nor did the district court abus e its discretion by denying Grei sman’s request to sanction the Estate’s c ounsel under § 1927. Under that section, “[a]ny a ttorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the co urt to satisfy personally the excess costs, expe nses, and attorneys’ fees reas onably incurred because of such conduct.” 28 U. S.C. § 1927. “Sanctions under § 1927 are appropriate when an attorney act s recklessly or with indifferen ce to the law.” Steinert, 440 F.3d at 1221 (internal quotati on marks omitted). “This is an extreme standard, and fees should be award ed only in instances evidenci ng a serious . . . disregard for the orderl y process of justice.” Baca v. Berry , 806 F.3d 1262, 1268 (10th Cir. 2015) (internal quotation marks omitted). The district court here did fi nd that the Estate’s counsel “d id very little.” Id

. And it is true that an attorney ’s failure to act can be “object ively unreasonable and vexatious and multiply the proceedi ngs 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 found9 that the Estate’s attorney did n’t “unreasonably and vexatiously multipl[y the] proceedings.” Aplt. App. Vol . 1 at 258. This finding is suppo rted by the record. 6 Under these circumstances, we c onclude the distr ict court didn’ t abuse its discretion by denying sa nctions under § 1927.
VI. Conclusion We affirm the district court’s order granting in part and deny ing 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 mo tion to compel re sponses to disc overy, but he did so only after the parties ha d conferred regarding the terms of dismissal and after the Estate’s counsel had advised Greisman’s counsel that the Es tate would probably dismiss the claim. Even if the claim should have been dismisse d sooner, the Estate’s counsel didn’t force Greisman’s deposition or maintain the acti on through summary judgment or trial. Moreover, the district court credited the E state’s attorney for dismissing the claim at Greisma n’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.