               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0636n.06

                                  Case Nos. 13-1581/13-1667
                                                                        FILED
                         UNITED STATES COURT OF APPEALS              Aug 15, 2014
                              FOR THE SIXTH CIRCUIT              DEBORAH S. HUNT, Clerk


MARK ZANECKI, Personal Representative            )
of the Estate of Richard M. Zanecki, deceased,   )
                                                 )
       Plaintiff-Appellant (13-1581),            )     ON APPEAL FROM THE UNITED
       Plaintiff-Appellant-Cross Appellee        )     STATES DISTRICT COURT FOR
(13-1581 & 13-1667),                             )     THE EASTERN DISTRICT OF
                                                 )     MICHIGAN
v.                                               )
                                                 )     OPINION
HEALTH ALLIANCE PLAN OF DETROIT                  )
– INSTITUTIONAL REVIEW BOARD                     )
                                                 )
       Defendant,                                )
                                                 )
INSTITUTIONAL REVIEW BOARD - ST.                 )
JOSEPH MERCY OAKLAND HOSP. -                     )
TRINITY HEALLTH SYSTEM IRB #1                    )
                                                 )
       Defendant-Appellee-Cross Appellant        )
(13-1581 & 13-1667),                             )
                                                 )
                                                 )
INSTITUTIONAL REVIEW BOARD -                     )
HENRY FORD HEALTH SYSTEM IRB #1                  )
                                                 )
       Defendant-Appellee (13-1581).             )


       BEFORE: DAUGHTREY, CLAY and STRANCH, Circuit Judges.
Case No. 13-1581
Zanecki v. Health Alliance Plan of Detroit
        PER CURIAM. Richard M. Zanecki suffered a transient ischemic attack (sometimes

called a “mini stroke”), underwent a procedure involving a Boston Scientific Wingspan Stent,

and died. His estate, acting through Mark M. Zanecki, the estate’s personal representative, filed

suit against three institutional review boards and various medical personnel, alleging a variety of

claims—including a claim under 42 U.S.C. § 1983—arising from the procedure and the decision

to use the stent. Protracted litigation ensued. The district court dismissed all but the estate’s

§ 1983 claim and eventually dismissed the entire case on statute-of-limitations grounds.

        As this is a § 1983 case, “state law determines what statute of limitations applies” and

“federal law determines when the statutory period begins to run.” Harrison v. Mich., 722 F.3d

768, 772 (6th Cir. 2013). Michigan’s three-year statute of limitations applies, Mich. Comp.

Laws § 600.5805(10), and, under federal law, “begins to run when the plaintiff knows or has

reason to know that act the providing the basis of his or her injury has occurred.” Collyer v.

Darling, 98 F.3d 211, 220 (6th Cir. 1996). As the district court correctly stated:

        Here, the injury and the cause of the injury was apparent, or should have been
        apparent, to Plaintiff: the Wingspan Stent and the use of the Wingspan Stent. His
        cause of action accrued, as the magistrate judge stated, when his father passed, on
        October 3, 2007, or, at the latest, in December, 2007, when he learned from the
        coroner that the stent caused his father's death. From that information, Plaintiff
        was on notice that the stent, its use, its manufacturing, and its approval to be used,
        could have been the cause of the death. The Court therefore finds that the statute
        of limitations has run, and that Plaintiff's claims are barred.

Zanecki v. Inst. Review Bd.: Henry Ford Health Sys. IRB No. 1, No. 12-13233, 2013 WL

992635, at *3 (E.D. Mich. Mar. 13, 2013). We find no error in the district courts conclusion; the

statute of limitations bars this claim.

        There is one complication. Mark Zanecki is not a lawyer, which is to say that Richard

Zanecki’s estate was represented by a layperson and not by counsel. After the district court

dismissed the case, the estate, finally represented by counsel, filed a motion for relief from the

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Case No. 13-1581
Zanecki v. Health Alliance Plan of Detroit
judgment, arguing in part that it should be allowed to amend its complaint because Mark Zanecki

had been engaged in the unauthorized practice of law. The district court denied the motion:

“Plaintiff chose to proceed pro se in this case. The Court respects his choice, but also cannot

afford him any special treatment of second chances.”

        Although the district court used the term “pro se,” it is clear to us that Mark Zanecki was

purporting to represent his father’s estate, “the real party in interest . . . for whose benefit the

action was brought.” Shenkman v. Bragman, 682 N.W.2d 516, 519 (Mich. Ct. App. 2004)

(quotation marks omitted). “Because, by definition, pro se means to appear on one's own behalf,

a person may not appear pro se on another person's behalf in the other's cause of action.”

Cavanaugh ex rel. Cavanaugh v. Cardinal Local Sch. Dist., 409 F.3d 753, 755 (6th Cir. 2005),

abrogated on other grounds by Winkelman ex rel. Winkelman v. Parma City. Sch. Dist., 550 U.S.

516 (2007); see also Shepherd v. Wellman, 313 F.3d 963, 970–71 (6th Cir. 2002). The problem,

then, is that Mark Zanecki was impermissibly acting as the estate’s counsel, and “[a] nonlawyer

can’t handle a case on behalf of anyone except himself.” Georgakis v. Ill. State Univ., 722 F.3d

1075, 1077 (7th Cir. 2013); see also 28 U.S.C. § 1654.

       “Everyone knew that [Mark Zanecki] wasn’t a lawyer,” one Defendant’s counsel told us

at oral argument, “the lawyers knew and the [district] court knew.”                Under different

circumstances, we would face a dilemma:

       A federal court rightly expects a lawyer to represent a litigant. By its supervision
       of the bar and through its reliance on the lawyers before it, the court is enabled to
       function. Professional competence and professional responsibility are the sine
       qua non of federal litigation and effective judicial response.

C.E. Pope Equity Trust v. United States, 818 F.2d 696, 698 (9th Cir. 1987). The rule against

non-lawyer representation “protects the rights of those before the court” by preventing an ill-

equipped layperson from squandering the rights of the party he purports to represent. Myers v.


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Case No. 13-1581
Zanecki v. Health Alliance Plan of Detroit
Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005). Lawyers and judges alike have a

duty to prevent the unauthorized practice of law; we are troubled that Zanecki was allowed to

proceed as a “pro se” litigant. In situations like this, the usual course of action is to dismiss the

case without prejudice. See Shepherd, 313 F.3d at 71; Georgakis, 722 F.3d at 1078; Jones ex rel.

Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005).               But the unusual

circumstances of the case, where the estate has now retained counsel and specifically waived the

argument that the district court should have dismissed without prejudice, allow us to reach the

merits of the estate’s § 1983 claim.

       The district court’s judgment is AFFIRMED.




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