Himmelreich v. Fed. Bureau of Prisons

• Decision Date: 22 July 2021
• Docket Number: No. 19-4146,19-4146
• Citation: 5 F.4th 653
• Parties: Walter J. HIMMELREICH, Plaintiff-Appellee, v. FEDERAL BUREAU OF PRISONS et al., Defendants, Janel Fitzgerald, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

5 F.4th 653

Walter J. HIMMELREICH, Plaintiff-Appellee,

v. FEDERAL BUREAU OF PRISONS et al., Defendants,Janel Fitzgerald, Defendant-Appellant.

No. 19-4146

United States Court of Appeals, Sixth Circuit.

Argued: June 15, 2021

Decided and Filed: July 22, 2021

H. Thomas Byron III, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. J. Benjamin Aguiñaga, JONES DAY, Washington, D.C., for Appellee. ON BRIEF: H. Thomas Byron III, Anne Murphy, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. J. Benjamin Aguiñaga, JONES DAY, Washington, D.C., for Appellee.

Before: MOORE, COLE, and GIBBONS, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge.

This case arises from an assault upon Walter J. Himmelreich, a federal inmate, by another inmate while Himmelreich was incarcerated at FCI-Elkton. Himmelreich's subsequent lawsuits alleged numerous claims against prison officials, including a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for retaliation in violation of the First Amendment. Himmelreich claims that the captain at FCI-Elkton, Janel Fitzgerald, threatened to transfer him to a higher-level security institution if he filed a grievance regarding the assault and that she later admitted that she placed him in the Special Housing Unit ("SHU") for filing a claim under the Federal Tort Claims Act, thereby violating his First Amendment rights. Fitzgerald moved for summary judgment only on the ground that there is no Bivens remedy for a First Amendment retaliation claim. The district court denied her motion for summary judgment.

Fitzgerald appeals the district court's recognition of Himmelreich's Bivens claim for First Amendment retaliation and the district court's denial of summary judgment on that claim. We DISMISS Fitzgerald's appeal for lack of jurisdiction because her appeal concerns neither a final order nor a non-final order entitled to review under the collateral order doctrine. Given that we dismiss Fitzgerald's appeal for lack of jurisdiction, we will waive appellate fees with respect to her appeal.

I. BACKGROUND

On October 20, 2008, another inmate, Peter Macari, assaulted Himmelreich. Himmelreich states in his complaint that, prior to the attack and while Macari was in the SHU, Macari had told prison officials that he "had a lot of stress in here." R. 1 (Compl. ¶ 7) (Page ID #6). Macari singled out persons convicted of child sexual offenses as the source of his stress, stating that he was "not able to live with pedophiles," and if released back into the prison's general population, he would "smash a pedophile." Id. Macari's comments targeting "pedophiles" were pertinent to Himmelreich, who had pleaded guilty to one count of producing child pornography, United States v. Himmelreich , 265 F. App'x 100, 102 (3d Cir. 2008), and who, according to Himmelreich, was "reputedly, among the inmate community, one of the biggest pedophiles on the Elkton compound and [was] aware that other inmates have that perception of him," R. 1 (Compl. ¶ 8) (Page ID #6). On October 20, 2008, despite these comments, prison officials released Macari from the SHU to the general population. Id. ¶ 20 (Page ID #8). Later that day, Macari acted upon his comments targeting "pedophiles" and assaulted Himmelreich. Id. ¶¶ 28–36 (Page ID #9–10). In February 2009, Himmelreich filed his Tort Claim Notice with the Federal Bureau of Prisons. Id. ¶ 63 (Page ID #14).

Shortly after the assault, on November 14, 2008, Himmelreich alleges that Fitzgerald told him "in a threatening tone," that if he continued to complain about the assault "[she would] personally see that [he was] transferred to a penitentiary and [he would] more than likely be attacked and not just beat up" there. R. 47 (06/03/13 Pl.’s Resp. to Mot. for Summ. J. at 7) (Page ID #275). On March 5, 2009, prison officials placed Himmelreich in the SHU without explanation. R. 1 (Compl. ¶ 64) (Page ID #14). Sometime in April 2009, Himmelreich states that "Captain J. Fitzgerald, while making rounds in the SHU, yelled at [Himmelreich] through his door and so loud that the inmates in the surrounding cells could hear clear as a bell: ‘You want to know why you're in here? You're in here because of the fuckin’ Tort Claim you filed! That's why you're in here!’ " Id. ¶ 66 (Page ID #15). Himmelreich remained in the SHU for sixty days until prison officials released him on May 4, 2009. Id. ¶ 64 (Page ID #14). Defendants counter that prison officials placed Himmelreich in the SHU for his own protection after he complained of threats from other inmates. R. 163 (05/30/19 Reply in Supp. of Defs.’ Mot. for Summ. J. at 9) (Page ID #1648).

On February 11, 2010, Himmelreich filed a complaint against prison employees under the Federal Tort Claims Act ("FTCA") based on the October 20, 2008 assault and its aftermath. Complaint, Himmelreich v. United States of America , No. 4:10-cv-00307-BYP (N.D. Ohio Feb. 11, 2010). The district court granted the defendants’ motion to dismiss Himmelreich's FTCA complaint because it came within the discretionary-function exception to the FTCA, 28 U.S.C. § 2680(a). Mem. of Op. & Order, Himmelreich v. United States of America , No. 4:10-cv-00307-BYP (N.D. Ohio Nov. 18, 2010).

While Himmelreich's FTCA complaint was pending, he filed another complaint against the defendants asserting several claims arising out of the October 20, 2008 assault, his subsequent medical care, and his placement in the SHU. R. 1 (Compl.) (Page ID #1–18). The district court dismissed Himmelreich's complaint pursuant to 28 U.S.C. § 1915(e), for failure to state a claim. R. 7 (03/11/11 Order) (Page ID #39–48). On appeal, we affirmed the district court's dismissal of most of Himmelreich's claims. We, however, vacated and remanded two claims to the district court because Himmelreich had plausibly pleaded the elements of a First Amendment retaliation claim and an Eighth Amendment failure-to-protect claim. Himmelreich v. Federal Bureau of Prisons , No. 11-3474 (6th Cir. May 7, 2012) (order). The defendants moved to dismiss Himmelreich's two remaining claims for failure to exhaust administrative remedies and for falling under the FTCA's judgment bar rule, which provides that a judgment in an FTCA action precludes other lawsuits against the individual defendants pursuant to 28 U.S.C. § 2676. R. 45-1 (04/26/13 Mot. for Summ. J.) (Page ID #237–43); R. 50 (06/18/2013 Reply to Pl.’s Resp. 5–9) (Page ID #325–29). The district court granted the defendants’ motion for summary judgment. R. 53 (07/18/13 Order & Decision) (Page ID #431–37).

We reversed the district court's judgment and remanded for further consideration of Himmelreich's claims. Himmelreich v. Fed. Bureau of Prisons , 766 F.3d 576 (6th Cir. 2014), aff'd and remanded sub nom. Simmons v. Himmelreich , ––– U.S. ––––, 136 S. Ct. 1843, 195 L.Ed.2d 106 (2016) (per curiam). We concluded that Himmelreich had raised a genuine dispute of material fact as to whether Fitzgerald's threats had rendered the administrative grievance process functionally unavailable and thus excused his failure to exhaust administrative remedies. Id. at 577–78. As for the import of the FTCA's judgment bar provision, we held that the district court's dismissal of Himmelreich's FTCA suit for lack of subject-matter jurisdiction did not trigger the FTCA's judgment bar rule. Id. at 578–80. The Supreme Court granted the defendants’ petition for certiorari on the second issue to resolve a circuit split regarding whether the FTCA's judgment bar provision applies when the district court dismisses the FTCA suit for lack of subject-matter jurisdiction because the suit came within the discretionary-function exception, and the Court affirmed our decision. Himmelreich , 136 S. Ct. at 1846, 1850.

This brings us to the subject of this appeal. The defendants again moved for summary judgment, this time on the grounds that prison employees were entitled to qualified immunity on Himmelreich's Eighth Amendment failure-to-protect claims, and that Himmelreich's First Amendment retaliation claim against Fitzgerald was not a cognizable Bivens damages action. R. 142-1 (02/25/2019 Mem. in Supp. of Mot. for Summ. J.) (Page ID #715–52). The defendants notably did not raise qualified immunity as a defense to Himmelreich's Bivens damages action against Fitzgerald in their opening motion for summary judgment, although they subsequently included it in their reply brief. R. 163 (05/30/19 Reply in Supp. of Defs.’ Mot. for Summ. J. at 8) (Page ID #1647). The district court deemed Fitzgerald's qualified-immunity defense waived for the purposes of this motion. R. 165 (09/25/19 Mem. of Op. & Order at 15) (Page ID #1687).

The district court granted two of the individual defendants’ motions to dismiss the Eighth Amendment failure-to-protect claims based on qualified immunity. Id. at 6–15 (Page ID #1678–87). For Himmelreich's First Amendment retaliation claim against Fitzgerald, however, the district court concluded that Himmelreich had stated a cognizable Bivens damages action, and the court denied summary judgment on that claim. Id. at 34 (Page ID #1706).

Fitzgerald appealed. R. 166 (Not. of Appeal) (Page ID #1708). Himmelreich, then pro se , filed a motion to stay proceedings because Fitzgerald had not paid her appellate fees. See No. 19-4146, R. 11 (Appellee's Mot. at 2). We denied Himmelreich's motion to stay proceedings without addressing the merits of his arguments. No. 19-4146, R. 18 (03/03/2020 Order).

II. DISCUSSION

Himmelreich asserts that this appeal should be dismissed for lack of appellate jurisdiction and for nonpayment of appellate fees. We agree with both of Himmelreich's arguments, although we will waive Fitzgerald's appellate fees in this instance.

A. Jurisdiction

We first "must determine that [we] have jurisdiction before proceeding to the merits" of Fitzgerald's appeal. Lance v. Coffman , 549 U.S. 437, 439, 127 S.Ct....