Petition for Writ of Certiorari — Walter J. Himmelreich, Petitioner v. Janel Fitzgerald

Supreme Court briefApr 22, 2024

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FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nov 2, 2023

KELLY L. STEPHENS, Clerk

No. 22-4030

WALTER J. HIMMELREICH,

Plaintiff-Appellant,

FEDERAL BUREAU OF PRISONS, et al„

Defendants,

and

JANEL FITZGERALD,

Defendant-Appellee.

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

JUDGMENT

On Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

THIS CAUSE was heard on the record from the district court and was submitted on the

briefs without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court

is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Appendix A-1

NOT RECOMMENDED FOR PUBLICATION

No. 22-4030

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nov 2, 2023

KELLY L. STEPHENS, Clerk

WALTER J. HIMMELREICH,

)

Plaintiff-Appellant,

FEDERAL BUREAU OF PRISONS, et al„

Defendants,

)

JANEL FITZGERALD,

)

and

Defendant-Appellee.

ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF

OHIO

ORDER

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

Walter J. Himmelreich, proceeding pro se, appeals the district court’s grant of summary

judgment in favor of Janel Fitzgerald, the sole remaining defendant in this action filed under Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). This case

has been referred to a panel of the court that, upon examination, unanimously agrees that oral

argument is not needed. See Fed. R. App. P. 34(a). For the following reasons, we affirm.

Himmelrich was assaulted by a fellow inmate in 2008 while they were incarcerated in FCI

Elkton. Himmelrich filed a lawsuit against several prison officials, alleging numerous claims

related to the assault and events that followed. The full background on this case is available in

Himmelreich v. Federal Bureau of Prisons, 5 F.4th 653, 656-58 (6th Cir. 2021).

Appendix A- 2

No. 22-4030

-2-

By 2019, all but two of Himmelrich’s claims had been dismissed. In February 2019, the

defendants moved for summary judgment on the remaining claims, a First Amendment retaliation

claim against Fitzgerald and an Eighth Amendment failure-to-protect claim against several prison

officials. The defendants argued that Himmelreich’s First Amendment retaliation claim is not

cognizable under Bivens and that they were entitled to qualified immunity on the Eighth

Amendment claim. The district court granted summary judgment on the Eighth Amendment

claim, but denied summary judgment on the First Amendment claim. Himmelreich v. Fed. Bureau

of Prisons, No. 4:10CV2404, 2019 WL 4694217, at *16 (N.D. Ohio Sept. 25, 2019). Fitzgerald

appealed, but we dismissed for lack of appellate jurisdiction. Himmelreich, 5 F.4th at 658. We

thus did not reach the merits of the district court’s order recognizing a Bivens action for First

Amendment retaliation. Id. at 666.

After our decision, the Supreme Court decided Egbert v. Boule, 596 U.S. 482 (2022),

holding that “that there is no Bivens action for First Amendment retaliation.” Id. at 499. Relying

on Egbert, Fitzgerald filed a renewed motion for summary judgment. The district court granted

that motion, Himmelreich v. Federal Bureau of Prisons, No. 4:10CV2404, 2022 WL 6156942

(N.D. Ohio Oct. 7, 2022), and this appeal followed.

We review de novo the district court’s grant of summary judgment. Maben v. Thelen, 887

F.3d 252, 258 (6th Cir. 2018). Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

As Fitzgerald notes, the Egbert Court held that there is no Bivens cause of action for First

Amendment retaliation claims. Egbert, 596 U.S. at 499. Egbert applies “‘to all pending cases,

whether or not those cases involve predecision events.’” Watkins v. Healy, 986 F.3d 648,665 (6th

Cir. 2021) (quoting Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995)). Accordingly,

even though the events giving rise to this suit predate Egbert, its holding applies, and the district

court correctly granted summary judgment to Fitzgerald.

Appendix A--3--

No. 22-4030

-3-

Accordingly, we AFFIRM the district court’s grant of summary judgment.

ENTERED BY ORDER OF THE COURT

Appendix A-4

United States Court of Appeals for the Sixth Circuit

U.S. Mail Notice of Docket Activity

The following transaction was filed on 11/02/2023.

Case Name: Walter Himmelreich v. Federal Bureau of Prisons, et al

Case Number: 22-4030

Docket Text:

ORDER filed: We AFFIRM the district court's grant of summary judgment. Mandate to issue,

decision not for publication, pursuant to FRAP 34(a)(2)(C). Karen Nelson Moore, Circuit Judge;

R. Guy Cole, Jr., Circuit Judge and Julia Smith Gibbons, Circuit Judge.

The following documents(s) are associated with this transaction:

Document Description: Order

Notice will be sent to:

Walter J. Himmelreich

Dauphin County Prison

501 Mall Road

Harrisburg, PA 17111

A copy of this notice will be issued to:

Ms. Ruchi Asher

Ms. Lisa Hammond Johnson

Ms. Sandy Opacich

Appendix A-5

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OFFICE OF THE CLERK

UNITED STATES COURT OF APPEALS

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100 E. FIFTH STREET, ROOM 540

CINCINNATI, OHIO 45202-3988

OFFICIAL BUSINESS

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Hi 0008029501/FEB 21 2024

PENALTY FOR PRIVATE USE, $300

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Walter J.Himmelreich '

#13152-067

F.C.I Fort Dix

P.O. Box 2000

Joint Base MDL, NJ 08640

PSS4O-O3O2G0

No. 22-4030

FILED

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WALTER J. HIMMELREICH,

Plaintiff-Appellant,

FEDERAL BUREAU OF PRISONS, ET AL.,

Defendants,

JANEL FITZGERALD

Defendant-Appellee.

)

Jan 25, 2024

KELLY L. STEPHENS, Clerk

ORDER

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

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision of the case. The petition then was circulated to the full

court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

ENTERED BY ORDER OF THE COURT

Appendix C-2

WALTER J. HIMMELREICH, Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al„ Defendants.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN

DIVISION

2022 U.S. Dist. LEXIS 184606

CASE NO. 4:10CV2404

October 7, 2022, Decided

October 7, 2022, Filed

Editorial Information: Subsequent History

Appeal filed, 12/12/2022

Editorial Information: Prior History

Himmelreich v. Fed. Bureau of Prisons, 2011 U.S. Dist. LEXIS 25037 (N.D. Ohio, Mar. 9, 2011)

{2022 U.S. Dist. LEXIS 1}Walter J Himmelreich, Plaintiff, Pro se,

Counsel

Harrisburg, PA.

For J. Fitzgerald, Lieutenant Butts, Correctional Officer

Simmons, Defendants: Lisa Hammond Johnson, LEAD ATTORNEY, Ruchi V. Asher, Office

of the U.S. Attorney - Cleveland, Northern District of Ohio, Cleveland, OH.

Judges: Benita Y. Pearson, United States District Judge.

Opinion

Opinion by:

Benita Y. Pearson

Opinion

ORDER

[Resolving ECF Nos. 183, 187, 188]

Pending before the Court is Defendant Fitzgerald's Renewed Motion for Summary Judgment. See

ECF No. 183. The Motion has been fully briefed. Plaintiff Himmelreich responded in opposition (ECF

No. 187) pro se1 and Defendant replied (ECF No. 188). For the following reasons, Defendant's

Renewed Motion for Summary Judgment is granted.

I. Background

The background section in the prior Memorandum of Opinion and Order is hereby incorporated by

reference. See ECF No. 165. The remaining claim pending in this action is Plaintiff's First

Amendment retaliation claim against Defendant Fitzgerald, a former Captain at FCI Elkton. Plaintiff

notes that in March 2009, Defendant oversaw his placement in the Special Housing Unit ("SHU")

because Plaintiff had filed a grievance against the prison staff for failing to protect him from another

inmate's assault.{2022 U.S. Dist. LEXIS 2} See ECF No. 1 at PagelD #: 14-15. Plaintiff states that

he remained in the SHU for a period of 60 days, and alleges that during his stay Defendant yelled at

him: "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!" ECF No. 1 at PagelD #: 15.

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

Appendix B-1

13152067

On September 25, 2019, this Court granted summary judgment in favor of Defendants Simmons, a

Corrections Officer at FCI Elkton, and Butts, a former Special Investigative Services Lieutenant at

FCI Elkton, and denied summary judgment to Defendant Fitzgerald. See ECF No. 165. The Sixth

Circuit dismissed Defendant's appeal for lack of appellate jurisdiction. See ECF Nos. 173, 174. On

August 8, 2022, Defendant renewed her motion for summary judgment. See ECF No. 183.

II. Standard of Review

"Summary judgment is appropriate where 'the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.'" Scolav. Publix

Supermarkets, Inc., 557 F. App'x 458, 462 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). The

fact under dispute must be "material," and the dispute itself must be "genuine." A fact is

"material" only if its resolution will affect the outcome of the lawsuit. Scott v. Harris, 550 U.S.

. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). In determining whether a factual

issue{2022 U.S. Dist. LEXIS 3} is "genuine," the Court assesses whether the evidence is such

that a reasonable jury could find that the non-moving party is entitled to a verdict. Id. ("[Summary

judgment] will not lie ... if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party."). The moving party is not required to file affidavits or other similar

materials negating a claim on which its opponent bears the burden of proof, so long as the

movant relies upon the absence of an essential element in the pleadings, depositions, answers to

interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (1986).

To survive summary judgment, the non-moving party "must 'do more than simply show that there

is some metaphysical doubt as to the material facts."' Baker v. City of Trenton, 936 F.3d 523,

529 (6th Cir. 2019) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.

574, 587,106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). Once the movant makes a properly

supported motion, the burden shifts to the nonmoving party to demonstrate the existence of a

genuine dispute. An opposing party may not simply rely on its pleadings; rather, it must "produce

evidence that results in a conflict of material fact to be resolved" by a factfinder. KSA

Enterprises, Inc. v. Branch Banking & Tr. Co., 761 F. App'x 456, 464 (6th Cir. 2019) (quoting Cox

v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995)). "The mere existence of a scintilla of

evidence in support of the plaintiff's position will be insufficient; there must be evidence{2022

U.S. Dist. LEXIS 4} on which the jury could reasonably find for the plaintiff."

F.3d 608, 613 (6th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.

Ct. 2505, 91 L. Ed. 2d 202 (1986)). In analyzing a motion for summary judgment, the Court

"must view the evidence in the light most favorable to the nonmoving party." Lossia v. Flagstar

Bancorp, Inc., 895 F.3d 423, 428 (6th Cir. 2018) (citing Latits v. Phillips, 878 F.3d 541, 547 (6th

Cir. 2017)U.S. v. $774,830:00 in U.S. Currency, 4:20CV2084, 2022 U.S. Dist. LEXIS 45228,

2022 WL 788064 (N.D. Ohio Mar. 14, 2022)

III. Discussion

"[T]he denial of summary judgment has no res judicata effect, and the district court may, in its

discretion, allow a party to renew a previously denied summary judgment motion or file successive

motions, particularly if good reasons exist" such as an intervening change in controlling law. Lexicon,

Inc. v. Safeco Ins. Co. of Am., 436 F.3d 662, 673 n.6 (6th Cir. 2006). At issue in this case is Plaintiff's

First Amendment retaliation claim against former Captain Janel Fitzgerald in her individual capacity.

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

Appendix B-2

13152067

Plaintiff alleges that Defendant threatened him and placed him in the SHU as a retaliatory action

against him for filing a tort claim. In Defendant's Brief in Support of the Renewed Motion for

Summary Judgment, she remarks that the Plaintiff's pending claim is extinguished by a recent

Supreme Court ruling and argues that, alternatively, as a government official she had qualified

immunity2 and, thus, is entitled to summary judgment. See ECF No. 183; Egbert v. Boule, 142 S. Ct.

1793, 213 L. Ed. 2d 54 (2022). In Plaintiff's Response (ECF No. 187), he retorts that the Supreme

Court and Sixth Circuit case law Defendant{2022 U.S. Dist. LEXIS 5} relies on in the Brief are not on

point and, thus, insufficient to support a granting of summary judgment. See ECF No. 187 at PagelD

#: 1847-49. Plaintiff also raises myriad tangential arguments, such as insufficient notice of filings,

that neither address the assertions made by Defendant in her Brief in Support of the Renewed

Motion for Summary Judgment (ECF No. 183) nor.the principal issue of the pending matter. Each

filing in these proceedings has been timely docketed and made accessible to both parties. The Court

finds that Plaintiffs tangential complaints deserve no further attention.

The Court turns now to the matter at issue. In the Court's previous ruling denying Defendant

Fitzgerald summary judgment, the First Amendment retaliation claim against her survived because

the claim arose in a context that had not previously been recognized by the Supreme Court. See

ECF No. 165. Since the Court's September 2019 decision, Defendant correctly notes (ECF No. 183

at PagelD #: 1814-15) that both the Supreme Court of the United States and the Sixth Circuit Court

of Appeals have ruled against recognizing causes of action brought by inmates for retaliation under

the First Amendment against federal officers serving{2022 U.S. Dist. LEXIS 6} in their individual

capacities. See Egbert v. Boule, 142 S. Ct. 1793,1808, 213 L. Ed. 2d 54 (2022)3 Callahan v. Fed.

Bureau of Prisons, 965 F.3d 520, 523 (6th Cir. 2020) ("The Supreme Court has not recognized a new

Bivens action in the 40 years since Carlson. And it has repeatedly declined invitations, many just like

Callahan's, to create such actions.").

Defendant accurately indicates that the Court's reliance on the Egbert decision is not negated by the

fact that Egbert was issued after these proceedings were initiated. See ECF No. 183. "As a general

rule, new constitutional decisions are not applied retroactively to cases that were finalized prior to a

new Supreme Court decision." United States v. Quackenbush, 369 F. Supp. 2d 958, 963 (W.D.

Tenn. 2005) (quoting Goode v. United States, 305 F.3d 378, 383 (6th Cir.2002)). As indicated by the

pending renewed motion for summary judgment before the Court, this case has yet to be finalized.

Therefore, there is no issue of retroactivity.

IV. Conclusion

This Court is bound by the decisions of the Sixth Circuit. See Hall v. Eichenlaub, 559 F.Supp.2d 777,

782 (E.D. Mich. 2008). Furthermore, the Sixth Circuit Court is bound by the decisions of the

Supreme Court. See Henderson v. Collins, 262 F.3d 615, 623 (6th Cir. 2001). It follows, therefore,

that the Court is bound by the decisions of the Supreme Court. The resolution of the matter is

dictated by the Supreme Court's explicit ruling that "there is no Bivens action for First Amendment

retaliation." Egbert, 142 S. Ct. at 1807. For this reason, Defendant's Renewed Motion for Summary

Judgment is granted.4 A separate{2022 U.S. Dist. LEXIS 7} Judgment Entry will issue.

IT IS SO ORDERED.

October 7, 2022

Date

/s/Benita Y. Pearson

Date Benita Y. Pearson

lyfcases

and terms and conditions of the Matthew Bender Master Agreement

Appendix B-3

13152067

United States District Judge

JUDGMENT ENTRY

For the reasons set forth in the Memorandum of Opinion and Order filed contemporaneously with

this Judgment Entry, Defendant's Renewed Motion for Summary Judgment (EOF No. 183) is

granted.

This ruling concludes the case. The matter is resolved in favor of Defendants and against Plaintiff.

IT IS SO ORDERED.

October 7, 2022

Date

/s/Benita Y. Pearson

Benita Y. Pearson

United States District Judge

Footnotes

The Court appointed Plaintiff pro bono counsel who, pursuant to Anders v. California, 386 U.S. 738,

87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), were subsequently given permission to withdraw. See EOF

Nos. 185, 186.

Defendant raised qualified immunity to support her original motion for summary judgment, which the

Court found to be waived because it was brought forth for the first time in the reply brief (ECF No.

163). See ECF No. 165 at PagelD #: 1687. The Court does not find this argument to be dispositive in

. granting summary judgment in this renewed motion.

The Supreme Court has declined to imply a Bivens action in the following cases over the past 40

years: Chappell v. Wallace, 462 U.S. 296,103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983); Bush v. Lucas,

462 U.S. 367, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983); United States v. Stanley, 483 U.S. 669, 107

S. Ct. 3054, 97 L. Ed. 2d 550 (1987); Schweikerv. Chilicky, 487 U.S. 412, 108 S. Ct. 2460, 101 L

Ed. 2d 370 (1988); FDIC v. Meyer, 510 U.S. 471, 114 S. Ct. 996,127 L. Ed. 2d 308 (1994);

Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S. Ct. 515,151 L. Ed. 2d 456 (2001);

Wilkie v. Robbins, 551 U.S. 537, 127 S. Ct. 2588, 168 L. Ed. 2d 389 (2007); Hui v. Castaneda, 559

U.S. 799, 130 S. Ct. 1845, 176 L. Ed. 2d 703 (2010); Minneci v. Pollard, 565 U.S. 118, 132 S. Ct.

617, 181 L. Ed. 2d 606 (2012); Ziglarv. Abbasi, 582 U.S. _, 137 S. Ct. 1843, 198 L. Ed. 2d 290

(2017); Hernandez v. Mesa, 589 U.S. _, 140 S. Ct. 735, 206 L. Ed. 2d 29 (2020).

Because the instant ruling is necessitated by law, the Court does not reach the question of qualified

immunity.

lyfcases

and terms and conditions of the Matthew Bender Master Agreement.

Appendix B-4

13152067

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Kelly L. Stephens

Clerk

Tel. (513) 564-7000

www.ca6 .uscourts. gov

Filed: January 25, 2024

Walter J. Himmelreich

Dauphin County Prison

501 Mall Road

Harrisburg, PA 17111

Re: Case No. 22-4030, Walter Himmelreich v. Federal Bureau ofPrisons, et al

Originating Case No.: 4:10-cv-02404

Dear Mr. Himmelreich,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Beverly L. Harris

En Banc Coordinator

Direct Dial No. 513-564-7077

cc: Ms. Ruchi Asher

Ms. Lisa Hammond Johnson

Enclosure

Appendix C-1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kelly L. Stephens

Clerk

100 EAST FIFTH STREET, ROOM 540

POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000

www.ca6.Uscourts.gov

Filed: February 02,2024

Ms.,Sandy Opacich

Northern District of Ohio at Cleveland

801 W. Superior Avenue .

Suite 100 Carl B. Stokes U.S. Courthouse

Cleveland, OH 44113-1830

Re: Case No. 22-4030, Walter Himmelreichv. Federal Bureau ofPrisons, et al

Originating Case No. : 4:10-cv-02404

Dear Ms. Opacich,

Enclosed is a copy of the mandate filed in this case.

Sincerely yours,

s/Mackenzie A. Collett

For Ryan Orme

cc: Ms. Ruchi Asher

Mr. Walter J. Himmelreich

Ms. Lisa Hammond Johnson

Enclosure

Appendix. D-1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No: 22-4030

Filed: February 02, 2024

WALTER J. HIMMELREICH

Plaintiff - Appellant

FEDERAL BUREAU OF PRISONS, et al.

Defendants

and

JANEL FITZGERALD

Defendant - Appellee

MANDATE

Pursuant to the court's disposition that was filed 11/02/2023 the mandate for this case hereby

issues today.

COSTS: None

Appendix D-2

OFFICE OF THE CLERK

CINCINNATI 0£i 450-^

UNITED STATES COURT OF APPEALS

9 FEB 2024

100 E. FIFTH STREET, ROOM 540

CINCINNATI, OHIO 45202-3988

$ 000.64°

OFFICIAL BUSINESS

0008029501 FEB. 09. 2024.

PENALTY FOR PRIVATE USE, $300

Walter J.Himmelreich

#13152-067

F-CJ Fort Dix

P.O.Box 2000

Joint Base MDL, NJ 08640

♦H

^ !

0e£40-030200

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