Hall v. Chapman, 4:17-cv-10895

• Court: United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
• Writing for the Court: ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
• Parties: WALTER LEE HALL, Plaintiff v. KEVIN M. CHAPMAN, NICHOLAS JUKURI, FRANK O. FINCH, DANIEL SWETZ, and JOHN POLKINGHORN, Defendants.
• Docket Number: 4:17-cv-10895
• Decision Date: 17 August 2022

WALTER LEE HALL, Plaintiff
v.
KEVIN M. CHAPMAN, NICHOLAS JUKURI, FRANK O. FINCH, DANIEL SWETZ, and JOHN POLKINGHORN, Defendants.

No. 4:17-cv-10895

United States District Court, E.D. Michigan, Southern Division

August 17, 2022

Terrence G. Berg District Judge

REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S CLAIMS AGAINST DEFENDANT FINCH AND GRANT DEFENDANTS CHAPMAN, JUKURI, SWETZ, AND POLKINGHORN'S MOTION TO DISMISS (ECF NO. 34)

ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION:

The Court should: (1) DISMISS Plaintiff's claims against Defendant Finch without prejudice for failure to comply with Fed.R.Civ.P. 4(m) (or, alternatively, with prejudice under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)); and, (2) GRANT Defendants Chapman, Jukuri, Swetz, and Polkinghorn's September 7, 2021 motion to dismiss (ECF No. 34).

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II. REPORT:

A. Prior Cases

In 2015, while incarcerated at FCI Milan, Walter Lee Hall filed two cases in this Court. See Hall v. Federal Bureau of Prisons, Case No. 2:15-cv-12376-AJT-SDD (E.D. Mich.) (judgment Aug. 29, 2016), Hall v. Chapman, et al., Case No. 4:15-cv-13771-TGB-APP (E.D. Mich.) (judgment Jan. 20, 2018). In the latter, he sued three individuals who are also parties to the instant case: (1) Kevin M. Chapman, identified as the FCI Milan UNICOR Paint A Department Supervisor; (2) Nicholas Jukuri, identified as a sheet metal worker foreman; and, (3) Frank O. Finch, identified as General Manager UNICOR. Hall v. Chapman, et al., Case No. 4:15-cv-13771-TGB-APP (E.D. Mich.) (ECF No. 1, PageID.1-2, therein).

Defendants were represented by the U.S. Attorney's Office. On January 17, 2017, Hall - “in direct response” to the Court's December 21, 2016 opinion and order (see ECF No. 33, therein) - filed an amended complaint against Chapman “based on events that transpired on or about September and October 2014.” (ECF No. 38, therein.) As Judge Berg recognized on February 17, 2017, the superseding amended complaint “appears to have tried to address the problems with the original Complaint raised by Magistrate Judge Patti.” (ECF No. 42, PageID.408-409, therein.) The matter concluded in January 2018, when the Court

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granted Defendants' motion to dismiss, dismissed Hall's claims without prejudice, and entered judgment. (ECF Nos. 52, 53, therein.)

B. Instant Complaint

On March 21, 2017, Hall filed the instant matter, which concerns his incarceration at FCI Milan “from July 2014 to November 2016.” (ECF No. 1, PageID.1.) Defendants are: (1) Chapman; (2) Jukuri; (3) Finch; (4) Daniel M. Swetz, a Correctional Counselor; and, (5) John T. Polkinghorn, who is described as a Unit Case Manager. (ECF No. 1, PageID.2, 76.)

At the time Hall filed this lawsuit in March 2017, he was incarcerated at FCI El Reno in Oklahoma. (Id., PageID.79.) On February 27, 2020, Judge Berg referred this case to me for pretrial matters. (ECF No. 11.) Plaintiff was released from the Federal Bureau of Prisons' custody on August 12, 2020.^[1] In December 2020, he informed the Court of his new address. (ECF No. 20.)

C. Defendant Finch has yet to appear, and the claims against him should be dismissed without prejudice.

Plaintiff is proceeding in forma pauperis (IFP). (ECF Nos. 2, 3.) Therefore, the Court directed the U.S. Marshal Service (USMS) “to serve the appropriate papers in this case on defendant(s) without prepayment of the costs for

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such service.” (ECF No. 7; see also ECF No. 13.)^[2] The USMS made multiple attempts at service, some of which were successful, some of which were not. (ECF Nos. 8-9, 14, 16, 17-19, 21-24, 27.)

On May 26, 2021, Chapman, Jukuri, Swetz, and Polkinghorn appeared via counsel. (ECF No. 28.) To date, Finch has not appeared. It seems the USMS's January 2021 attempt to serve Finch was unsuccessful. (ECF No. 26.) On May 26, 2021, the Government informed the Court that “Finch is retired[,] and the Bureau of Prisons (BOP) provided his last known address to the United States Marshals Service.” (ECF No. 29, PageID.155 ¶ 7.)

Approximately five months later, on November 1, 2021, I entered an order, which provided, in part: “[U]nless the United States Attorney's Office informs this Court, in writing, that it agrees to accept service on behalf of Defendant Finch or enters an appearance on Defendant Finch's behalf, the Federal Bureau of Prisons must furnish the [USMS] with Defendant Finch's last-known address.” (ECF No. 39, PageID.207.)

It is not clear what became of the apparent February 2022 attempt to effect service upon Finch. (ECF No. 43.) On April 15, 2022, the Clerk of the Court issued a summons as to Finch. (ECF No. 44.) This attempt was also unfruitful.

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(ECF Nos. 45, 46, 51.) Then, on June 8, 2022, the USMS filed a notice of reasonable effort search, explaining as follows: “An alternate address could not be located due to multiple search results being returned for the defendant's name and state indicated in the address provided by the Michigan Department of Corrections. The [USMS] will make no additional efforts to perform service.” (ECF No. 47.) Therefore, on June 9, 2022, I entered an order requiring Plaintiff to show cause - in writing, and no later than Friday, July 8, 2022 - why Defendant Finch should not be dismissed for the failure to serve him in accordance with Fed.R.Civ.P. 4(m). (ECF No. 49.) To date, Plaintiff has not filed a related response.

“If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Considering that this case has been pending for more than five years, that the USMS's multiple attempts to effect service upon Finch have been unsuccessful (see, e.g., ECF Nos. 9, 26, 46), and that Plaintiff has not responded to the Court's related show cause order, the Court should dismiss Plaintiff's claims against Defendant Finch without prejudice for failure to comply with Fed.R.Civ.P. 4(m). Alternatively, pursuant to this Court's screening functions in IFP

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and prisoner cases (see 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)), and in the interest of judicial economy, the claims against Finch should be dismissed with prejudice, because the Bivens claims that form the basis of Plaintiff's complaint are not cognizable in this context under recent Supreme Court jurisprudence, as explained in great detail below (see Section II.E.3).

D. Defendants Chapman, Jukuri, Swetz, and Polkinghorn's Motion to Dismiss

Currently before the Court is Defendants Chapman, Jukuri, Swetz, and Polkinghorn's September 7, 2021 motion to dismiss, which argues that:

1. This Court should dismiss Hall's official capacity claims for lack of subject matter jurisdiction.

2. The Court should dismiss Plaintiff's individual capacity First and Fifth Amendment claims based on a lack of subject matter jurisdiction where no remedy lies under Bivens [v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)].

3. Defendants are entitled to qualified immunity as to Plaintiff's First and Fifth Amendment claims.

(ECF No. 34, PageID.171-172, 181-199.)

Although Plaintiff's response was originally due on October 8, 2021, he sought an extension, and Plaintiff was given until December 10, 2021 by which to file a response. (ECF Nos. 35, 38, 40.) Thus, Plaintiff's response, which was dated December 13, 2021 and post-marked January 4, 2022 (ECF No. 41) is tardy, although I have considered it in this report and recommendation. Importantly,

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Plaintiff “concedes that this Court should in fact dismiss Plaintiff's official capacity claims.” (ECF No. 41, PageID.211, 216-218.) Therefore, only Defendants' Bivens and qualified immunity arguments remain at issue.

Defendants timely replied on January 18, 2022. (ECF No. 42.)

E. Discussion

1. Factual background

UNICOR is “the trade name for Federal Prison Industries (FPI), a wholly owned Government corporation . . .” with a goal to “prepar[e] inmates for successful reentry through job training.”^[3] Hall claims he was working in UNICOR's Paint Department at FCI Milan when Chapman took over the department in June or July of 2014. (ECF No. 1, PageID.5.) Hall alleges Chapman started to form “dislike and ill feelings” toward him after Hall corrected “Chapman's [unspecified] miss-statements [sic][,]” which Hall believes “lead to C/O Chapman deciding to make his life . . . at FCI-Milan a living hell.” (Id.)

Hall alleges he “worked his way up through UNICOR and secured a job as an Inventory Clerk,” but Chapman “told Mr. Hall that he doesn't think he should have that job.” (Id.) Plaintiff also alleges:

• In September 2014, he was the only one from whom Chapman took money for exceeding the lunch break. (Id., PageID.6; see

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also id., PageID.49, 51, 53 [Administrative Remedy Case No. 808450].)^[4]

• In October 2014, on more than one occasion, Chapman removed Hall from the overtime list. According to Plaintiff, he “is the only one that works in the department that [Chapman] took off the list.” Also, Chapman gave Plaintiff until October 23, 2014 “to find some place to go[,]” as Chapman did not think Plaintiff should have “the count job,” presumably the “inventory clerk” position, because it gave “too much lee way [sic].” Additionally, when Plaintiff worked overtime in the paint booth, Chapman “took Mr. Hall off that job and gave it to somebody else.” Later, on October 16, 2014, Chapman informed Hall, “I'm thinking of putting you on the take off line[,]” which Hall claims would lower his grade. In Hall's words, he “went from grade 1 to 2, a demotion which resulted in roughly loss of pay of $175.00

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