Richard Wershe, Jr. v. United States

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0168p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

RICHARD WERSHE, JR.,

│

Plaintiff-Appellant, │

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> No. 23-1902

v. │

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CITY OF DETROIT, MICHIGAN; WILLIAM JASPER; KEVIN │

GREENE; HERMAN GROMAN; UNKNOWN FORMER │

ASSISTANT UNITED STATES ATTORNEY; CAROL DIXON, │

as representative of the estate of James Dixon; EDWARD │

JAMES KING; LYNN HELLAND, │

Defendants-Appellees. │

┘

┐

RICHARD WERSHE, JR.,

│

Plaintiff-Appellant, │

│

> No. 23-1903

v. │

│

UNITED STATES OF AMERICA, │

Defendants-Appellees. │

│

┘

Appeals from the United States District Court for the Eastern District of Michigan at Flint.

Nos. 4:21-cv-11686; 4:22-cv-12596—F. Kay Behm, District Judge.

Argued: July 18, 2024

Decided and Filed: August 8, 2024

Before: CLAY, McKEAGUE, and READLER, Circuit Judges.

Nos. 23-1902/1903 Wershe v. City of Detroit, Mich., et al. Page 2

Wershe v. United States

COUNSEL

_________________

Case No. 23-1902

ARGUED: Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellant. John G.

Adam, LAW OFFICE OF JOHN G. ADAM, PLLC, Berkley, Michigan, for Appellees Dixon,

Groman, Helland, and King. Cheryl L. Ronk, CITY OF DETROIT LAW DEPARTMENT,

Detroit, Michigan, for Appellees Jasper, Green, and City of Detroit. ON BRIEF: Nabih H.

Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellant. John G. Adam, LAW OFFICE

OF JOHN G. ADAM, PLLC, Berkley, Michigan, Stuart M. Israel, STUART M. ISRAEL,

PLLC, Farmington Hills, Michigan, for Appellees Dixon, Groman, Helland, and King. Cheryl

L. Ronk, Gregory B. Paddison, CITY OF DETROIT LAW DEPARTMENT, Detroit, Michigan,

for Appellees Jasper, Green, and City of Detroit.

_________________

Case No. 23-1903

ARGUED: Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellant. Jennifer L.

Newby, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: Nabih H. Ayad, AYAD LAW, PLLC, Detroit, Michigan, for Appellant. Jennifer

L. Newby, UNITED STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiff Richard Wershe, Jr., appeals the district court’s dismissal

of his complaints in two lawsuits pursuant to Federal Rule of Civil Procedure 12(b)(6). On July

20, 2021, Wershe sued the City of Detroit and federal and state law enforcement officials for

violations of his constitutional rights under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Based on the same underlying facts,

on October 28, 2022, Wershe also sued the United States for violations of the Federal Tort

Claims Act, 28 U.S.C. § 2671 et seq. In a consolidated order, the district court dismissed

Wershe’s complaints with prejudice because Wershe’s claims were time-barred. For the reasons

set forth below, we AFFIRM the district court’s order.

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Wershe v. United States

I. BACKGROUND

A. Factual Background

We draw the following facts from Wershe’s complaints and take them to be true at the

motion to dismiss stage. See Marvaso v. Sanchez, 971 F.3d 599, 605 (6th Cir. 2020).

In 1984, when Wershe was fourteen years old, his father contacted the Federal Bureau of

Investigation (“FBI”) about a known drug dealer who had begun dating Wershe’s sister. FBI

Agent James Dixon met with Wershe’s father about the dealer, and Wershe’s father brought

Wershe along. At the meeting, Dixon showed Wershe and his father photographs of

neighborhood individuals who were of interest to the FBI, and Wershe was able to identify most

of them.

Based on Wershe’s ability to identify neighborhood individuals of interest to the FBI,

Dixon began using fourteen-year-old Wershe as a drug informant for a joint task force between

the FBI and the Detroit Police Department. To solicit information from Wershe, FBI agents

would show up unannounced while Wershe walked to school, to his home, and to other

locations, sometimes several times a week or daily. Because Wershe was a juvenile and afraid of

law enforcement, he felt he could not refuse. Over the following year, Wershe’s involvement

with the task force deepened. Federal and state officers, including Defendants Groman, Jasper,

and Greene, instructed Wershe to buy and sell drugs, at one point sending him to another state

with thousands of dollars to do so.

Wershe’s work as a juvenile drug informant placed him in very dangerous situations. As

a fourteen- and fifteen-year-old, Wershe was put in proximity to drug trafficking gangs and, by

the age of seventeen, experienced multiple attempted shootings. In November 1984, someone

shot and nearly killed Wershe, requiring him to be hospitalized and causing injuries to his large

intestine. After using Wershe as an informant for a couple of years, Defendants Groman, Jasper,

and Greene then cut off contact with him. By 1987, Wershe no longer worked as an informant.

On May 22, 1987, Wershe was arrested after officers received a tip connecting Wershe to

a large box of cocaine. Subsequently, Wershe was convicted by a jury of possession with intent

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Wershe v. United States

to distribute 650 grams or more of cocaine, in violation of Michigan Compiled Laws

§ 333.7401(2)(a)(i) (amended 2002). See People v. Wershe, No. 107785, at 1 (Mich. Ct. App.

Apr. 30, 1990). For this conviction, Wershe—then seventeen years old—received the statutorily

mandated sentence of life imprisonment without parole, see Mich. Comp. Laws § 333.7401

(1978), although he later became parole eligible based on changes to state law, see Act to Amend

1953 PA 232, Pub. L. No. 314, Mich. Comp. Laws § 791.234 (1998) (amending Michigan’s drug

laws to establish parole eligibility for individuals who had been sentenced to life imprisonment

without parole).

While Wershe was incarcerated, law enforcement approached him multiple times about

cooperating with ongoing investigations. In 1991, Defendants Groman and Helland approached

Wershe to participate in “Operation Backbone,” an investigation into corruption within the

Detroit Police Department and among Detroit politicians. Because Defendant Helland stated that

he and Defendant Groman would do everything in their power to get Wershe released if he

cooperated, Wershe agreed to participate. After Operation Backbone resulted in the arrest of

multiple Detroit police officers and public officials, Defendant Helland arranged for Wershe to

be placed in a witness protection program while incarcerated. Through this program, Wershe

was relocated within the state prison system and received a fake identity.

In 1992, Wershe was again approached by law enforcement officials, including

Defendant King, this time to testify before a grand jury against the “Best Friends” gang. Wershe

ultimately agreed to participate based on King’s promises that Wershe’s grand jury testimony

would remain sealed and on the condition that King would do everything in his power to get

Wershe’s sentence commuted.

Wershe became eligible for parole in 2002, and his parole hearing was scheduled for

March 2003. Ahead of Wershe’s parole hearing, Defendant Helland informed Wershe that

neither he nor Defendant King could advocate for Wershe’s parole because their office did not

support Wershe’s release. Wershe was denied parole at the 2003 hearing. At the hearing,

Wershe observed law enforcement officers reading from his grand jury testimony regarding the

Best Friends gang, contrary to his belief that his testimony would remain sealed.

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In 2017, Wershe was ultimately granted parole by the Michigan Parole Board.

Thereafter, Wershe was immediately transferred to a Florida prison to serve a sentence for an

unrelated racketeering charge. Wershe was released from prison on July 20, 2020.

B. Procedural History

Based on the above facts, Wershe brought two lawsuits. On July 20, 2021, Wershe

brought his first lawsuit, in which he sued: (1) the City of Detroit, (2) two former Detroit police

officers (William Jasper and Kevin Greene), (3) two former FBI agents (Herman Groman and

the Estate of James Dixon, via its representative Carol Dixon), and (4) several former assistant

U.S. attorneys (Lynn Helland, Edward James King, and Unknown Former Assistant U.S.

Attorney). Wershe sued the City of Detroit and the former municipal officials (the “City

Defendants”) under 42 U.S.C. § 1983, and he sued the former federal officials (the “individual

federal Defendants”) under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, which recognizes a cause of action for damages against federal officials. See 403

U.S. at 389.

Wershe alleged that while he was a juvenile informant in the 1980s, the former police

officers and FBI agents violated his Fifth Amendment substantive due process rights, his Fourth

Amendment right to be free from government seizures, and his First Amendment right to family

integrity.1 He also asserted that the former assistant U.S. attorneys had violated and conspired to

violate his Fifth Amendment due process rights by allegedly circulating his sealed grand jury

testimony ahead of his 2003 parole hearing. Wershe additionally claimed that several

Defendants breached a promise to advocate for him at his 2003 parole hearing, in violation of his

Fifth Amendment due process rights. Finally, Wershe alleged that the City of Detroit was liable

for its police department’s conduct based on Monell liability. See Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 694 (1978).

1

Although Wershe’s complaint alleges violations of his due process rights under the Fifth Amendment, his

claims against the City Defendants fall under the Fourteenth Amendment’s Due Process Clause. See Scott v. Clay

County, 205 F.3d 867, 873 n.8 (6th Cir. 2000).

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Wershe v. United States

On October 28, 2022, Wershe brought a second lawsuit, in which he sued the United

States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. Wershe alleged

that the United States was liable for the conduct of the individual federal Defendants named in

the first lawsuit, which he claimed had resulted in the torts of negligence or wanton misconduct,

intentional infliction of emotional distress, fraud or negligent misrepresentation, and civil

conspiracy.

Defendants in both lawsuits moved to dismiss. Thereafter, the district court issued a

consolidated order in which it granted Defendants’ motions to dismiss in both lawsuits and

dismissed Wershe’s claims with prejudice. The district court reasoned that dismissal was

appropriate pursuant to Federal Rule of Civil Procedure 12(b)(6) because Wershe’s claims

plainly fell outside of the applicable statutes of limitations and Wershe was not entitled to

equitable tolling. Wershe then timely appealed the district court’s order.

II. DISCUSSION

Our legal system recognizes time limits on a party’s ability to bring claims. These time

limits, reflected in statutes of limitations, serve a number of purposes. They prevent parties from

bringing claims long after the “evidence has been lost, memories have faded, and witnesses have

disappeared.” CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014) (quoting Ord. of R.R.

Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 349 (1944)). They bring “security and

stability to human affairs” by disallowing the revival of claims in perpetuity. Gabelli v. SEC,

568 U.S. 442, 448–49 (2013) (quoting Wood v. Carpenter, 101 U.S. 135, 139 (1879)). Whether

a plaintiff has a just claim or not, in light of the above considerations, “the right to be free of

stale claims in time comes to prevail over the right to prosecute them.” Ord. of R.R.

Telegraphers, 321 U.S. at 349.

Despite their value, the time limits imposed by statutes of limitations may on occasion be

too mechanical and unforgiving. See Holland v. Florida, 560 U.S. 631, 650 (2010). For that

reason, the doctrine of equitable tolling permits a court to pause the statute of limitations when

some significant impediment beyond the plaintiff’s control prevented the plaintiff from filing a

timely action. See Waldburger, 573 U.S. at 9. In other words, much of the focus of equitable

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tolling is the impediment to filing. Thus, the equitable tolling inquiry turns “not on the

uniqueness of a party’s circumstances or the outrageousness of what they endured,” but instead

on “the severity of the obstacle impeding compliance with a limitations period.” Doe v. United

States, 76 F.4th 64, 72 (2d Cir. 2023) (internal quotation marks and citation omitted).

These principles are implicated in the case before us today. The district court dismissed

Wershe’s claims as time-barred. In response, Wershe argues that his limitations periods should

have been equitably tolled. He also takes issue with the district court’s dismissal of his claims

with prejudice, rather than without prejudice, and with the district court’s treatment of materials

outside the pleadings. Without reaching the merits of Wershe’s case, we conclude that the

district court correctly disposed of Wershe’s claims.

A. Statute of Limitations

Defendants argue that Wershe’s claims are barred by the statutes of limitations.

Although the statute of limitations is an affirmative defense that a plaintiff ordinarily need not

plead to state a claim, dismissal of the plaintiff’s claim is appropriate when “the allegations in

the complaint affirmatively show that the claim is time-barred.” Baltrusaitis v. Int’l Union,

United Auto., Aerospace & Agric. Implement Workers, 86 F.4th 1168, 1178 (6th Cir. 2023)

(citation omitted). We review the issue of whether a limitations period has expired de novo.

Durand v. Hanover Ins. Grp., Inc., 806 F.3d 367, 374 (6th Cir. 2015).

Wershe’s complaints make clear that both his lawsuit under the FTCA and his lawsuit

under § 1983 and Bivens were untimely. The FTCA requires plaintiffs to file administrative

claims with the government “within two years” after the claims accrued and to commence any

legal action “within six months” after the government denies these administrative claims. See 28

U.S.C. § 2401(b). Wershe’s most recent FTCA claims accrued when he was denied parole

shortly after his March 2003 parole hearing, at which Defendants allegedly committed torts. See

Hertz v. United States, 560 F.3d 616, 618 (6th Cir. 2009) (stating that tort claims under the

FTCA generally accrue when the plaintiff is injured). With respect to his most recent FTCA

claims, Wershe was therefore required to bring administrative claims shortly after March 2005.

See 28 U.S.C. § 2401(b). However, Wershe did not file his administrative claims until July

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2021, long after the expiration of the FTCA’s two-year limitations period. And many of

Wershe’s FTCA claims date even further back because they relate to torts allegedly committed

while Wershe was a juvenile informant from 1984 to 1986.

Likewise, the limitations period for Wershe’s § 1983 and Bivens claims expired before

Wershe sued the City Defendants and individual federal Defendants. Section 1983 and Bivens

claims lack express statutes of limitations, and instead “borrow the personal-injury statute of

limitations from the state in which the claim arose.” Zappone v. United States, 870 F.3d 551,

559 (6th Cir. 2017). Because Wershe’s § 1983 and Bivens claims arose in Michigan, they are

subject to Michigan’s three-year statute of limitations for personal-injury claims. See Garza v.

Lansing Sch. Dist., 972 F.3d 853, 867 n.8 (6th Cir. 2020) (citing Mich. Comp. Laws

§ 600.5805(2)). Wershe’s most recent § 1983 and Bivens claims are due process claims related

to his March 2003 parole hearing. These claims accrued at the time of the parole hearing or at

the latest when Wershe was denied parole. See Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th

1000, 1010–11 (6th Cir. 2022) (observing that the accrual date for due process claims turns on

several considerations and that some due process claims accrue before any adverse consequences

flow from the due process violation); see also Johnson v. Memphis Light Gas & Water Div., 777

F.3d 838, 843 (6th Cir. 2015) (noting that § 1983 claims accrue when a plaintiff knew or should

have known of an injury); Friedman v. Est. of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)

(same for Bivens). Wershe was therefore required to bring his most recent § 1983 and Bivens

claims in March 2006 or shortly thereafter, three years from the date of the March 2003 parole

hearing or the denial of his parole, but he filed his lawsuit under § 1983 and Bivens on July 20,

2021. His earlier claims date back to the 1980s, and those claims are therefore even more

untimely.

B. Equitable Tolling

Wershe does not dispute that his claims fall outside of the applicable statutes of

limitations. However, he argues that the district court erred by not equitably tolling his

limitations periods. We review a denial of equitable tolling de novo when the underlying facts

are undisputed and for abuse of discretion when there is a factual dispute. Robertson v. Simpson,

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624 F.3d 781, 784 (6th Cir. 2010). Because we assume Wershe’s facts to be true at the motion to

dismiss stage, “there are no factual disputes” and de novo review applies to the issue of equitable

tolling in this case. Amini v. Oberlin Coll., 259 F.3d 493, 498 (6th Cir. 2001).

An equitable tolling analysis generally proceeds in two steps. A court must first

determine whether it has authority to equitably toll a particular statute of limitations. When

interpreting federal limitations periods, the authority to equitably toll typically exists if the

limitations period is not jurisdictional. See Boechler, P.C. v. Comm’r, 596 U.S. 199, 203, 209

(2022); see also Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 95–96 (1990). Wershe’s

limitations period with respect to his FTCA claims does not implicate this Court’s jurisdiction

and is therefore subject to equitable tolling. See United States v. Wong, 575 U.S. 402, 420

(2015). State law presumptively governs the tolling of Wershe’s § 1983 claims against the City

Defendants and his Bivens claims against the individual federal Defendants, so the availability of

tolling for those claims will ordinarily depend on the contours of state law. See Bishop v.

Child.’s Ctr. for Developmental Enrichment, 618 F.3d 533, 537 (6th Cir. 2010). If equitable

tolling is available, the court must next decide whether equitable tolling is warranted based on

the governing tolling rules for each claim, as discussed in greater detail for Wershe’s claims

below.

1. FTCA Claims

This Circuit has traditionally considered five factors to determine whether equitable

tolling of an FTCA claim is warranted: whether the plaintiff (1) lacked notice of the filing

requirement, (2) lacked constructive knowledge of the filing requirement, (3) diligently pursued

his rights, (4) would prejudice the defendant in pursuing the claim, and (5) reasonably ignored

the filing requirement.2 Zappone, 870 F.3d at 556. Although these factors are not exhaustive,

2

As the district court observed, the Supreme Court has applied a different, two-element equitable tolling

test to habeas cases. See Holland, 560 U.S. at 649. That test equitably tolls a habeas petitioner’s claims when the

petitioner shows “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

However, our Circuit continues to apply the above five-factor equitable tolling test to FTCA claims and other civil

claims “[b]ecause the Supreme Court has never expressly adopted the Holland test outside of the habeas context.”

Zappone, 870 F.3d at 557; see also Menominee Indian Tribe v. United States, 577 U.S. 250, 257 n.2 (2016)

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and not all the factors may be applicable in every case, they serve as useful guideposts for our

analysis. See Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561

(6th Cir. 2000). We therefore consider each factor in turn.

a. Actual Notice and Constructive Knowledge

The first and second equitable tolling factors look to whether Wershe had (1) actual

notice or (2) constructive knowledge of the filing deadlines. Zappone, 870 F.3d at 556. The

existence of a publicly available statute setting forth a filing deadline at the very least establishes

constructive knowledge. See Athens Cellular, Inc. v. Oconee County, 886 F.3d 1094, 1101 (11th

Cir. 2018); see also Atkins v. Parker, 472 U.S. 115, 130 (1985). Likewise, a plaintiff has

constructive knowledge when his attorney should have known of the filing deadlines. See Rose

v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991).

These factors weigh against Wershe. The FTCA contains an express statute of

limitations provision, which plainly provides notice of the Act’s limitations period. See

28 U.S.C. § 2401(b). Because the limitations period for an FTCA claim is publicly available,

and Wershe’s attorneys should have known of it, Wershe was at the very least on constructive

notice of his FTCA filing deadlines.

Wershe argues that two attorneys he retained—William Bufalino and Ralph Musilli—

mistakenly believed that he would have one year after his release from prison to file claims.

According to Wershe, that advice was based on a former Michigan law that tolled a plaintiff’s

limitations period while the plaintiff was incarcerated. See Mich. Comp. Laws § 600.5851(1)

(1961) (amended 1993). Even assuming that Michigan law is relevant to the tolling of Wershe’s

FTCA claims, but see Zappone, 870 F.3d at 556–57 (applying federal law to the tolling of FTCA

claims), Michigan law abolished incarceration as a ground for tolling in 1993, effective April 1,

1994, and impacted individuals were directed to bring suit by April 1, 1995. See Mich. Comp.

Laws § 600.5851(9) (1993). At best, the legal advice Wershe received would have been

mistaken after April 1, 1995.

(“[W]e have never held that [Holland’s] equitable-tolling test necessarily applies outside the habeas context.”).

Regardless, applying the Holland test to Wershe’s claims would not change the outcome of his case.

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However, an attorney’s mistake is typically not grounds for equitable tolling. See Jurado

v. Burt, 337 F.3d 638, 644–45 (6th Cir. 2003); see also Lawrence v. Florida, 549 U.S. 327, 336

(2007). That is because the lawyer acts as “the agent of his client,” and the client therefore

“must bear the risk of attorney error.” United States v. Wright, 945 F.3d 677, 684 (2d Cir. 2019)

(citation omitted); accord Damren v. Florida, 776 F.3d 816, 821 (11th Cir. 2015) (per curiam).

And the proper remedy for attorney error “is generally a legal malpractice suit or an ineffective

assistance of counsel claim,” not equitable tolling. Jurado, 337 F.3d at 644–45 (citations

omitted).

Courts have recognized an exception to the general rule that an attorney error does not

warrant equitable tolling, but that exception does not apply here. When attorney misconduct is

extraordinary, as opposed to merely a form of “garden variety” negligence, equitable tolling may

be warranted. Holland, 560 U.S. at 651–52. For example, a plaintiff might qualify for equitable

tolling when his attorney repeatedly ignores his communications, id. at 652, refuses the

plaintiff’s instructions to submit filings, or never speaks or meets with the plaintiff, Baldayaque

v. United States, 338 F.3d 145, 152 (2d Cir. 2003). However, Wershe does not plausibly allege

any such extraordinary attorney conduct here. Instead, an attorney’s “be[ing] unaware of the

date on which the limitations period expired . . . suggest[s] simple negligence.” Holland, 560

U.S. at 652. While it is possible that Wershe’s attorneys were negligent, any such attorney

negligence is not grounds for equitable tolling. See id. Because Wershe’s attorneys should have

known of his limitations periods, he had at least constructive knowledge of his filing deadlines.

See Rose, 945 F.2d at 1335.

b. Diligence

The next factor looks to whether Wershe diligently pursued the claims he now brings.

Zappone, 870 F.3d at 556. A plaintiff must have diligently pursued the instant claims during the

entire period over which he seeks equitable tolling. See, e.g., Medina v. Whitaker, 913 F.3d 263,

267 (1st Cir. 2019); Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008); Alzaarir v. Att’y Gen.

of U.S., 639 F.3d 86, 90 (3d Cir. 2011) (per curiam). That means the plaintiff must have pursued

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his claims with “some regularity” during that period, “as permitted by his circumstances.” Smith

v. Davis, 953 F.3d 582, 601 (9th Cir. 2020) (en banc).

Consulting with legal professionals about bringing claims can certainly contribute to a

plaintiff’s diligence. See Gordillo v. Holder, 640 F.3d 700, 705 (6th Cir. 2011) (concluding that

litigants diligently pursued their claims when three lawyers, a fourth legal professional, and an

immigration judge told the litigants that they lacked available relief). However, the mere fact

that Wershe consulted with two attorneys about his claims does not establish his diligence over

the multiple decades during which he failed to bring suit.

First, Wershe admits that in 2004 he asked his then-attorney about pursuing legal action

against Defendants. However, he chose not to bring suit because “there was a real possibility of

him being released on parole.” No. 4:22-cv-12596, Compl., R. 1, Page ID #22. Wershe

therefore discussed his potential claims with an attorney and made a decision to await his parole

determination. His decision to delay his lawsuits based on the possibility of parole is not the

type of extraordinary circumstance that ordinarily warrants equitable tolling. See Waldburger,

573 U.S. at 9.

Wershe also argues that while he was in prison, he feared Defendants would retaliate

against him for bringing claims, and that this excuses his delay. Some courts have recognized

that a defendant’s “specific and credible” threats of retaliation against a prisoner can support

equitable tolling. See, e.g., Doe, 76 F.4th at 72. As applied to our Circuit’s equitable tolling test,

a defendant’s threats of retaliation sensibly bear on whether a plaintiff was diligent “as permitted

by his circumstances,” because a plaintiff’s circumstances may be affected by such threats. See

Smith, 953 F.3d at 601. And our Circuit has already acknowledged that retaliation and

intimidation can excuse the failure to satisfy other requirements, such as the exhaustion

requirement under the Prison Litigation Reform Act, 42 U.S.C. § 1997e et seq. See Himmelreich

v. Fed. Bureau of Prisons, 766 F.3d 576, 577 (6th Cir. 2014) (per curiam).

However, while Wershe alleges he feared retaliation by other parties for other conduct,

he does not allege facts that plausibly suggest that Defendants ever threatened to retaliate as a

result of him bringing suit. See Doe, 76 F.4th at 72. For example, Wershe asserts that while

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incarcerated, he participated in the “Operation Backbone” investigation into political corruption

and police corruption in Detroit. As a result of his participation, Wershe was placed in a witness

protection program, through which he was given a fake identity and was relocated. While

Wershe may have feared retaliation from individuals targeted by Operation Backbone, these

allegations do not establish any threats of retaliation by Defendants at all, let alone threats

targeted at Wershe bringing suit. In fact, it was Defendant Helland, a former assistant U.S.

attorney, who arranged for Wershe’s placement in the witness protection program, ostensibly to

protect Wershe from any retaliation. Wershe also claims that after he testified before a grand

jury against the Best Friends gang, unknown officers circulated his grand jury testimony ahead

of his parole hearing. But Wershe fails to demonstrate how this example points to Defendants or

is connected to Wershe bringing claims.

Many of Wershe’s other allegations amount to a sweeping fear that someone in the

justice system would retaliate against him for bringing any legal action. However, such a

generalized fear of retaliation is insufficient to warrant equitable tolling. See id.; Huff v. Neal,

555 F. App’x 289, 296 (5th Cir. 2014) (per curiam); Davis v. Jackson, No. 15-CV-5359, 2016

WL 5720811, at *11 (S.D.N.Y. Sept. 30, 2016). Otherwise, any untimely plaintiff who asserted

that he was generally fearful of bringing claims would be entitled to equitable tolling. For

example, Wershe states that he “was terrified of his captors,” No. 4:22-cv-12596, Compl., R. 1,

Page ID #15, but such a conclusory allegation “will not suffice” at the motion to dismiss stage,

see Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). He adds that two of his attorneys

advised him to forego all legal action for fear of retaliation. However, this does little to establish

specific threats of retaliation by Defendants and to turn Wershe’s generalized fear of retaliation

into a more concrete one.

Furthermore, Wershe’s fear of retaliation is made less plausible by the fact that he

pursued other legal actions while he was incarcerated, including a suit against members of his

parole board. See Wershe v. Combs, No. 1:12-CV-1375, 2016 WL 1253036, at *1 (W.D. Mich.

Mar. 31, 2016). He also appealed his conviction and sentence and thereafter sought post-

conviction relief multiple times. People v. Wershe, No. 107785 (Mich. Ct. App. Apr. 30, 1990)

(direct appeal); People v. Wershe, No. 87-04902 (Mich. Cir. Ct. Apr. 1, 2003) (motion for relief

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Wershe v. United States

from judgment); People v. Wershe, No. 329110 (Mich. Ct. App. Sept. 29, 2015) (motion for

relief from judgment). Insofar as Wershe feared retaliation by anyone in the justice system, it

did not prevent him from pursuing these actions, and such actions demonstrate that Wershe had

some access to the legal system.

Lastly, Wershe claims that he was diligent because he filed his claims the day before his

probation ended. Yet, by this point, Wershe had been released from prison for a year. More

importantly, Wershe was required to diligently pursue the instant claims during the full period

that he seeks to equitably toll. See, e.g., Medina, 913 F.3d at 267. The fact that Wershe brought

his claims a year after his release cannot establish his diligence during the multiple decades for

which he seeks equitable tolling. Cf. Capiz-Fabian v. Barr, 933 F.3d 1015, 1018 (8th Cir. 2019)

(“Large time lapses are a significant obstacle to establishing one has diligently pursued his

rights.”).

c. Prejudice to Defendants

The fourth equitable tolling factor considers whether Defendants would be prejudiced by

equitable tolling. Zappone, 870 F.3d at 556. This factor weighs strongly against Wershe.

Wershe asks this Court to equitably toll his claims not for some small period of time but for

decades. Defendants would be prejudiced by such a result. Defendants note that many of the

relevant documents would be nearly impossible to locate, that events would be difficult to recall,

and that a significant number of would-be witnesses are now dead. See Cleveland Newspaper

Guild, Loc. 1 v. Plain Dealer Publ’g Co., 839 F.2d 1147, 1154 (6th Cir. 1988) (en banc)

(observing that a delay in filing a claim may prejudice a defendant if the delay results in the loss

of potential witnesses and evidence). For example, they observe that all of the following have

passed away: (1) FBI Agent James Dixon, whom Wershe sues through a representative of

Dixon’s estate, (2) the two attorneys who allegedly advised Wershe of his statute of limitations,

(3) a Detroit police commander who allegedly ordered someone to kill Wershe, and (4) former

Detroit mayor Coleman Young, who Wershe’s appellate briefing claims endangered Wershe.

In fact, Wershe concedes that virtually all relevant documents would be unavailable. He

observes that “no direct documentary evidence” exists in this case, that any trial “would be

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Wershe v. United States

almost purely testimonial,” and that the witnesses would be “Plaintiff and Defendants.” See No.

23-1903, Appellant’s Br. at 47. Nonetheless, because he has the burden of proof, he argues that

this would prejudice him more than it would prejudice Defendants. Even assuming that is true,

the fact that all the parties would face nearly insurmountable litigation obstacles is of little help

to Wershe. The potential prejudice to Defendants is that they might be forced to litigate on

Wershe’s terms without the help of any documentary evidence that could call his testimony into

question. And the extremely limited ability to litigate this case only illustrates that, after so

many years, his lawsuits may not be a suitable vehicle for the legal system’s function of

discerning the truth.

d. Reasonableness

The final factor asks whether Wershe’s ignorance of his filing deadlines was reasonable.

Zappone, 870 F.3d at 556. This factor, which overlaps with some of the prior factors, weighs

against Wershe. Insofar as Wershe ignored the filing deadlines because of attorney error,

attorney error typically is not grounds for equitable tolling. Jurado, 337 F.3d at 644–45. And

insofar as Wershe ignored the filing deadlines because of threats of retaliation, as discussed

above, his allegations do not plausibly demonstrate that Defendants threatened to retaliate or

would have retaliated against him. While Wershe’s circumstances are undoubtedly unique, and

he alleges a number of concerning facts, his ignorance of the filing deadlines for nearly twenty

years for some claims and thirty to forty years for others was not reasonable.

Wershe argues that a jury, not the district court, should have decided whether his

ignorance of the filing deadlines was reasonable. At the least, Wershe adds, he was entitled to an

evidentiary hearing. However, “[t]he decision to invoke equitable tolling is a question of law for

a court to answer,” rather than for a jury. Zappone, 870 F.3d at 562. And Wershe never sought

an evidentiary hearing below. The district court properly addressed the fifth factor of this

Circuit’s equitable tolling analysis. As the above five factors show, equitable tolling is not

warranted for Wershe’s FTCA claims.

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2. Section 1983 and Bivens Claims

Michigan law presumptively governs the tolling of Wershe’s § 1983 and Bivens claims.

See Bishop, 618 F.3d at 537. Just as with our Circuit’s five-factor test, however, Wershe is not

entitled to equitable tolling under Michigan law.

Section 1983 and Bivens claims borrow their statutes of limitations from state law.

Zappone, 870 F.3d at 559. And ordinarily, “[w]hen the statute of limitations is borrowed from

state law, so too are the state’s tolling provisions, except when they are ‘inconsistent with the

federal policy underlying the cause of action under consideration.’” Bishop, 618 F.3d at 537

(quoting Bd. of Regents v. Tomanio, 446 U.S. 478, 485 (1980)). Although past cases have

typically applied this principle to other state grounds for tolling, see id. at 537–38 (involving a

state statute’s tolling of a limitations period while the plaintiff was a minor); Tomanio, 446 U.S.

at 485–87 (looking to state tolling provisions to determine whether a limitations period could be

tolled while the plaintiff pursued a related cause of action), our Circuit has held in multiple

unpublished cases that a state’s equitable tolling principles likewise govern § 1983 claims. See,

e.g., Roberson v. Macnicol, 698 F. App’x 248, 250 (6th Cir. 2017) (considering the possibility of

applying Michigan equitable tolling rules); Helm v. Ratterman, 778 F. App’x 359, 369 (6th Cir.

2019) (applying Kentucky’s equitable tolling statute). But cf. Martin v. Somerset County, 86

F.4th 938, 944–45 (1st Cir. 2023) (identifying as an open question in the First Circuit whether

state or federal law governs the equitable tolling of § 1983 claims). Because Bivens claims, like

§ 1983 claims, borrow state statutes of limitations, the rationale for applying state equitable

tolling principles to § 1983 claims applies to Bivens claims as well.

Turning to Michigan’s tolling rules, Wershe has not satisfied his burden of pointing to

any Michigan law that persuades us to toll his § 1983 and Bivens claims; nor is such law

apparent. See Robertson, 624 F.3d at 784. Wershe does not argue, nor does he appear to qualify,

for any of Michigan’s statutory grounds for tolling.3 See, e.g., Mich. Comp. Laws § 600.5855

3

Wershe previously would have qualified for two of Michigan’s statutory grounds for tolling, but neither

applies now. First, Michigan law formerly would have tolled Wershe’s claims while he was incarcerated, but that

ground was repealed in 1993, effective April 1, 1994. See Mich. Comp. Laws § 600.5851(1) (1961) (amended

1993). Second, when a limitations period expires while the plaintiff is a minor, Michigan law affords the minor a

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Wershe v. United States

(tolling the limitations period where the defendant fraudulently conceals a claim); id. § 600.5854

(tolling the limitations period where the plaintiff is unable to bring suit due to war); id.

§ 600.5856(a) (tolling the limitations period where the complaint is filed but not yet served).

And under Michigan law, an express statute of limitations ordinarily cannot be equitably tolled.

See Secura Ins. Co. v. Auto-Owners Ins. Co., 605 N.W.2d 308, 311 (Mich. 2000) (per curiam).

Because Wershe’s § 1983 and Bivens claims are governed by Michigan’s express three-year

statute of limitations for personal-injury claims, Mich. Comp. Laws § 600.5805(2), equitable

tolling appears to be unavailable under Michigan law.

We need not decide if Michigan’s tolling rules are “inconsistent with the federal policy

underlying [§ 1983 and Bivens]” and thus require the application of federal equitable tolling

rules. See Bishop, 618 F.3d at 537 (quoting Tomanio, 446 U.S. at 485); see, e.g., Battle v.

Ledford, 912 F.3d 708, 715 (4th Cir. 2019). Wershe has not made that argument on appeal. And

even if federal equitable tolling principles governed Wershe’s § 1983 and Bivens claims, we

have already concluded that Wershe is not entitled to equitable tolling under federal law. See

supra Section II.B.1.

Under both this Circuit’s five-factor test and under Michigan law, Wershe cannot avail

himself of equitable tolling, and his claims are therefore time-barred. We thus need not consider

several additional arguments made by Defendants, such as that Wershe’s “unclean hands”

preclude equitable tolling. Without reaching the merits of Wershe’s claims, we conclude that it

was proper for the district court to dismiss Wershe’s complaints.

C. Dismissal with Prejudice

Wershe argues that even if his claims are time-barred, the district court erred by

dismissing his complaints with prejudice and, therefore, without leave to amend. Rather, he

claims the district court should have permitted him to amend his complaints to add allegations

that Defendants directly threatened him with retaliation. Dismissal with prejudice is appropriate

one-year grace period to file claims after the minor turns eighteen years old. See id. § 600.5851(1). However, to the

extent that any of Wershe’s limitations periods expired while he was a minor, his one-year grace period has long

passed because he turned eighteen years old in 1988. See id.

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Wershe v. United States

when “the complaint could not be saved by an amendment.” Stewart v. IHT Ins. Agency Grp.,

LLC, 990 F.3d 455, 457 n.1 (6th Cir. 2021). We review the dismissal of a complaint with

prejudice for an abuse of discretion but apply de novo review to the determination that an

amendment would be futile. See id.

The district court did not err by dismissing Wershe’s complaints with prejudice. Wershe

never moved to amend his complaints for the purpose of curing his statute of limitations

deficiencies before the district court. Cf. Printup v. Dir., Ohio Dep’t of Job & Fam. Servs., 654

F. App’x 781, 791 (6th Cir. 2016) (affirming the dismissal with prejudice of a plaintiff’s time-

barred complaint where the plaintiff never moved to amend the complaint and an amendment

would have been futile). Furthermore, Wershe does not point to any specific allegations he

could add that would change the statute of limitations or equitable tolling inquiries. See Indep.

Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 943 (7th Cir. 2012) (affirming dismissal

with prejudice where a plaintiff “did not offer any meaningful indication of how it would plead

differently”). In fact, Wershe does not contest that the applicable statutes of limitations have

expired. His claims clearly fall far outside of the applicable statutes of limitations, and any

amendments to cure the statute of limitations deficiencies would plainly be futile.

Similarly, Wershe does not identify any particular allegations that could save his

equitable tolling arguments. Of course, it is always possible that a plaintiff may allege some new

fact, unknown to this Court now, that makes equitable tolling more compelling. But no such

facts are apparent in Wershe’s case, given his decades-old claims and the lack of available

evidence to litigate his suits.

Wershe argues that he was caught off guard by the district court’s focus on whether

Defendants issued any specific threats of retaliation. Accordingly, he claims that he should be

permitted to add such allegations to his complaint. However, it was Wershe’s complaints that

introduced the idea that equitable tolling could be based on threats of retaliation. Even on

appeal, Wershe does not make any new allegations that plausibly identify specific threats of

retaliation by Defendants. He only generally remarks that he “could have obtained more

affidavits and/or facts.” No. 23-1902, Appellant’s Br. at 59; No. 23-1903, Appellant’s Br. at 58.

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Wershe v. United States

Because no amendments appear able to save Wershe’s time-barred claims, dismissal with

prejudice of Wershe’s complaints was proper.

D. Materials Outside the Pleadings

Lastly, Wershe challenges the district court’s handling of materials outside the pleadings.

If a district court considers materials outside the pleadings at the motion to dismiss stage, it must

ordinarily convert the motion to dismiss into a motion for summary judgment. Mediacom Se.

LLC v. BellSouth Telecomms., Inc., 672 F.3d 396, 399 (6th Cir. 2012). However, the district

court may consider exhibits attached to the complaint, exhibits attached to the motion to dismiss

briefing, items in the record, or public records without converting the motion to dismiss when

these items “are referred to in the [c]omplaint and are central to the claims contained therein.”

Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008). We review the district court’s treatment of

materials outside the pleadings for an abuse of discretion, see Wysocki v. Int’l Bus. Mach. Corp.,

607 F.3d 1102, 1104 (6th Cir. 2010), which occurs when the district court “relies on clearly

erroneous findings of fact, applies the law improperly, or uses an erroneous legal standard,”

United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010).

Wershe first takes issue with the district court’s failure to consider three affidavits

attached to his complaints that allegedly established his fear of retaliation, as well as other

evidence attached to his motion to dismiss briefing. However, while this Circuit’s case law

permits the district court to consider such evidence at the motion to dismiss stage if it is central

to the plaintiff’s claims, nothing requires the district court to do so. See Bassett, 528 F.3d at 430.

In this case, the district court reasonably concluded that “many of the submitted exhibits”—both

those submitted by Defendants and by Wershe—fell “well outside of the complaint’s central

claims.” No. 4:21-cv-11686, Consol. Order, R. 73, Page ID #1418; No. 4:22-cv-12596, Consol.

Order, R. 20, Page ID #213. It was not an abuse of discretion for the district court to do so. In

any case, these affidavits do not allege any specific threats of retaliation, and seemingly do not

change the equitable tolling analysis given the strength of the factors weighing against equitable

tolling.

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Wershe v. United States

Wershe next argues that the district court improperly considered Defendants’ evidence

but refused to consider Wershe’s evidence. Specifically, the district court took notice that

Wershe had sued his parole board and the prison warden, and had also challenged his conviction.

However, unlike the affidavits and other evidentiary materials that Wershe and Defendants

incorporated by reference into the pleadings, here the district court simply took notice of other

judicial proceedings. And it took notice of these lawsuits “not for the truth of the facts recited

therein, but for the existence of the [suits].” Winget v. JP Morgan Chase Bank, N.A., 537 F.3d

565, 576 (6th Cir. 2008) (citation omitted). It is “well-settled” that courts may do just that, see

Lyons v. Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999), including at the motion to dismiss stage,

see Winget, 537 F.3d at 576; see also Fed. R. Evid. 201(d). The district court did not err in doing

so.

III. CONCLUSION

A number of Wershe’s allegations, if true, are deeply troubling. That said, we cannot

move forward with adjudicating Wershe’s claims because his statutes of limitations have long

expired. For the reasons set forth above, we AFFIRM the district court’s dismissal of Wershe’s

complaints.