Skip navigation

Sixth Circuit Reverses Dismissal of Prisoner’s Bivens Suit against BOP Officials

Sixth Circuit Reverses Dismissal of Prisoner’s Bivens Suit against BOP Officials

by Derek Gilna

The Sixth Circuit Court of Appeals has reversed a district court’s dismissal of a prisoner’s suit raising a failure to protect claim, remanding it for further proceedings. The district court had dismissed the case due to failure to exhaust administrative remedies and also because it found the dismissal of a federal tort claim on purely procedural grounds was a bar to other litigation that alleged related facts.

In 2010, federal prisoner Walter J. Himmelrich filed suit under the Federal Tort Claims Act (FTCA) against the Bureau of Prisons (BOP) and various prison officials for failing to protect him from a 2008 assault by another prisoner in violation of the Eighth Amendment. He also filed a Bivens lawsuit alleging retaliation for the filing of the FTCA action, including being placed in administrative segregation for 60 days.

After a trip to the Sixth Circuit on appeal that resulted in a remand to the district court, the BOP filed for summary judgment in the Bivens case based upon the dismissal of Himmelrich’s FTCA suit and the fact that he had not exhausted his administrative remedies as required under the Prison Litigation Reform Act. The district court held that the failure to exhaust and the dismissal of the FTCA case required dismissal of the Bivens suit.

The Sixth Circuit disagreed, holding that the failure to exhaust should have been excused and dismissal of the FTCA suit did not require dismissal of the Bivens case. On the exhaustion issue, Himmelrich had alleged in his Bivens action that he was intimidated by prison officials into not pursuing further administrative remedies, and that he had been placed in administrative segregation due to his filing the FTCA case. The complaint also claimed that he had been threatened with a transfer to a higher-security facility if he persisted in filing grievances alleging intimidation and retaliation.

“Unlike the vague and conclusory allegations at issue in Boyd v. Corrections Corp. of America, 380 F.3d 989, 997 (6th Cir. 2004), Himmelreich’s claims of intimidation are specific,” the Court of Appeals wrote.

The Court also was not persuaded by the government’s argument that dismissal of the FTCA lawsuit constituted res judicata as to the Bivens case, noting that the FTCA suit had been dismissed on procedural rather than substantive grounds. Therefore, the Bivens case could proceed. As stated by the Sixth Circuit in a September 9, 2014 ruling, “A careful reading of the record shows that the district court dismissed [the] FTCA action for a lack of subject-matter jurisdiction ... [and a] dismissal for lack of subject-matter jurisdiction [only shows that] the court lacks the power to enter judgment.”

Therefore, the appellate court concluded, it must “vacate the district court’s grant of summary judgment and remand for proceedings consistent with this opinion.” The case remains pending. See: Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576 (6th Cir. 2014), petition for cert. filed.

Related legal case

Himmelreich v. Federal Bureau of Prisons