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Sixth Circuit Holds Court Lacked Jurisdiction to Rule on Summary Judgment in Retaliation Suit by BOP Prisoner

Walter Himmelreich was a prisoner at the Federal Correctional Institution in Elkton, Ohio for one count of producing child pornography on October 20, 2008, when he was assaulted by another prisoner, Peter Macari, due to the nature of his charge. Himmelreich stated that Captain Janel Fitzgerald retaliated against him when he filed a complaint about the attack and had him placed in protective custody. He filed a series of actions against Fitzgerald and the federal Bureau of Prisons (BOP) relating to violations of his First and Eighth Amendment rights. The Sixth Circuit Court of Appeals ruled on July 22, 2021, that the Court lacked jurisdiction. The appeal was dismissed and all fees were waived.

Macari was known as an antagonist who had violent hate for pedophiles. He was being released from confinement even though he had made several threatening comments about hurting a child molester when he got out. The day he was released he attacked Himmelreich. Himmelreich was then threatened with a transfer if he complained by Fitzgerald. On March 5, 2009 Himmelreich was placed in protective custody “without explanation,” he stated.

On October 20, 2008 Himmelreich filed a complaint stating several claims relating to the assault. It was originally dismissed for failure to state a claim. He filed a second tort action against Fitzgerald in her individual capacity while working “under the color of state” and the BOP on February 11, 2010. It was dismissed as falling under the discretionary-function exception rule of the Federal Tort Claims Act.

Himmelreich’s first tort denial was appealed and allowed to continue on the claims of retaliation and failure to protect, violations of his First and Eighth Amendment rights. Several motions followed suit, the latest of which was an Appellate Court decision on a motion for summary judgment filed by Fitzgerald. She claimed Himmelreich did not state a cognizable Bivens claim in the complaint and that she, with representation provided by the BOP, should not be responsible for appellate fees. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

The Sixth Circuit Court of Appeals ruling stated that since the denial of the motion for summary judgment was not a final order, the court lacked jurisdiction. The appeal was dismissed and Himmelreich was allowed to move forward with his claims. Also, as the appeal was dismissed, Fitzgerald would not be responsible for any appellate fees. See: Himmelreich v. Fed. Bureau of Prisons, 5 F.4th 653 (2021). Almost 11 years to the day after the case was first filed, it remains pending before the district court. See also: Himmelreich v. United States of America, USDC, N. Dist. OH, Case No. 4:10-cv-00307-BYP;  

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Related legal cases

Himmelreich v. Fed. Bureau of Prisons

Himmelreich v. United States of America

Bivens v. Six Unknown Fed. Narcotics Agents

403 U.S. 388; 91 S. Ct. 1999; 29 L. Ed. 2d 619


No. 301

January 12, 1971, Argued

June 21, 1971, Decided



DISPOSITION: 409 F.2d 718, reversed and remanded.


Petitioner's complaint alleged that respondent agents of the Federal Bureau of Narcotics, acting under color of federal authority, made a warrantless entry of his apartment, searched the apartment, and arrested him on narcotics charges. All of the acts were alleged to have been done without probable cause. Petitioner's suit to recover damages from the agents was dismissed by the District Court on the alternative grounds (1) that it failed to state a federal cause of action and (2) that respondents were immune from suit by virtue of their official position. The Court of Appeals affirmed on the first ground alone. Held:

1. Petitioner's complaint states a federal cause of action under the Fourth Amendment for which damages are recoverable upon proof of injuries resulting from the federal agents' violation of that Amendment. Pp. 390-397.

2. The Court does not reach the immunity question, which was not passed on by the Court of Appeals. Pp. 397-398.

COUNSEL: Stephen A. Grant argued the cause and filed a brief for petitioner.

Jerome Feit argued the cause for respondents. On the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, and Robert V. Zener.

Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

JUDGES: Brennan, J., delivered the opinion of the Court, in which Douglas, Stewart, White, and Marshall, JJ., joined. Harlan, J., filed an opinion concurring in the judgment, post, p. 398. Burger, C. J., post, p. 411, Black, J., post, p. 427, and Blackmun, J., post, p. 430, filed dissenting opinions.

OPINION: [*389] [***622] [**2001] MR. JUSTICE BRENNAN delivered the opinion of the Court.

[***HR1A] [1A]
HN1 The Fourth Amendment provides that:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."

In Bell v. Hood, 327 U.S. 678 (1946), we reserved the question HN2 whether violation of that command by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.

This case has its origin in an arrest and search carried out on the morning of November 26, 1965. Petitioner's complaint alleged that on that day respondents, agents of the Federal Bureau of Narcotics acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter, petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and subjected to a visual strip search.

[***HR2] [2]
On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the allegations above, his complaint asserted that the arrest and search were effected without a warrant, and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that the arrest was made without probable cause. n1 Petitioner [***623] claimed to have suffered great humiliation, [*390] embarrassment, and mental suffering as a result of the agents' unlawful conduct, and sought $ 15,000 damages from each of them. The District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action. n2 276 F.Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially, n3 affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari. 399 U.S. 905 (1970). We reverse.

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n1 Petitioner's complaint does not explicitly state that the agents had no probable cause for his arrest, but it does allege that the arrest was "done unlawfully, unreasonably and contrary to law." App. 2. Petitioner's affidavit in support of his motion for summary judgment swears that the search was "without cause, consent or warrant," and that the arrest was "without cause, reason or warrant." App. 28.

n2 The agents were not named in petitioner's complaint, and the District Court ordered that the complaint be served upon "those federal agents who it is indicated by the records of the United States Attorney participated in the November 25, 1965, arrest of the [petitioner]." App. 3. Five agents were ultimately served.

n3 Judge Waterman, concurring, expressed the thought that "the federal courts can . . . entertain this cause of action irrespective of whether a statute exists specifically authorizing a federal suit against federal officers for damages" for acts such as those alleged. In his view, however, the critical point was recognition that some cause of action existed, albeit a state-created one, and in consequence he was willing "as of now" to concur in the holding of the Court of Appeals. 409 F.2d, at 726 (emphasis in original).

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Respondents do not argue that petitioner should be entirely without remedy for an unconstitutional invasion of his rights by federal agents. In respondents' view, however, the rights that petitioner asserts -- primarily [**2002] rights of privacy -- are creations of state and not of federal law. Accordingly, they argue, petitioner may obtain money damages to redress invasion of these rights only by an action in tort, under state law, in the state courts. In this scheme the Fourth Amendment would serve merely to limit the extent to which the agents could defend [*391] the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them and they would stand before the state law merely as private individuals. Candidly admitting that it is the policy of the Department of Justice to remove all such suits from the state to the federal courts for decision, n4 respondents nevertheless urge that we uphold dismissal of petitioner's complaint in federal court, and remit him to filing an action in the state courts in order that the case may properly be removed to the federal court for decision on the basis of state law.

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n4 "Since it is the present policy of the Department of Justice to remove to the federal courts all suits in state courts against federal officers for trespass or false imprisonment, a claim for relief, whether based on state common law or directly on the Fourth Amendment, will ultimately be heard in a federal court." Brief for Respondents 13 (citations omitted); see 28 U. S. C. § 1442 (a); Willingham v. Morgan, 395 U.S. 402 (1969). In light of this, it is difficult to understand our Brother BLACKMUN's complaint that our holding today "opens the door for another avalanche of new federal cases." Post, at 430. In estimating the magnitude of any such "avalanche," it is worth noting that a survey of comparable actions against state officers under 42 U. S. C. § 1983 found only 53 reported cases in 17 years (1951-1967) that survived a motion to dismiss. Ginger & Bell, Police Misconduct Litigation -- Plaintiff's Remedies, 15 Am. Jur. Trials 555, 580-590 (1968). Increasing this figure by 900% to allow for increases in rate and unreported cases, every federal district judge could expect to try one such case every 13 years.

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[***HR3] [3]
[***HR4] [4]
[***HR5] [5]
We think that respondents' thesis rests upon an unduly restrictive [***624] view of the Fourth Amendment's protection against unreasonable searches and seizures by federal agents, a view that has consistently been rejected by this Court. Respondents seek to treat the relationship between a citizen and a federal agent unconstitutionally exercising his authority as no different from the relationship [*392] between two private citizens. In so doing, they ignore the fact that power, once granted, does not disappear like a magic gift when it is wrongfully used. An agent acting -- albeit unconstitutionally -- in the name of the United States possesses a far greater capacity for harm than an individual trespasser exercising no authority other than his own. Cf. Amos v. United States, 255 U.S. 313, 317 (1921); United States v. Classic, 313 U.S. 299, 326 (1941). Accordingly, as our cases make clear, HN3 the Fourth Amendment operates as a limitation upon the exercise of federal power regardless of whether the State in whose jurisdiction that power is exercised would prohibit or penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United States the absolute right to be free from unreasonable searches and seizures carried out by virtue of federal authority. And "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." Bell v. Hood, 327 U.S., at 684 (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433 (1922) (Holmes, J.).

[***HR6] [6]
[***HR7] [7]
[***HR8] [8]
First. Our cases have long since rejected the notion that the Fourth Amendment proscribes only such conduct as would, if engaged in by private persons, be condemned by state law. Thus in Gambino v. United States, 275 U.S. 310 (1927), petitioners [**2003] were convicted of conspiracy to violate the National Prohibition Act on the basis of evidence seized by state police officers incident to petitioners' arrest by those officers solely for the purpose of enforcing federal law. Id., at 314. Notwithstanding the lack of probable cause for the arrest, id., at 313, it would have been permissible under state law if effected [*393] by private individuals. n5 It appears, moreover, that the officers were under direction from the Governor to aid in the enforcement of federal law. Id., at 315-317. Accordingly, if the Fourth Amendment reached only to conduct impermissible under the law of the State, the Amendment would have had no application to the case. Yet this Court held the Fourth Amendment applicable and reversed petitioners' convictions as having been based upon evidence obtained through an unconstitutional search and seizure. Similarly, in Byars v. United States, 273 U.S. 28 [***625] (1927), the petitioner was convicted on the basis of evidence seized under a warrant issued, without probable cause under the Fourth Amendment, by a state court judge for a state law offense. At the invitation of state law enforcement officers, a federal prohibition agent participated in the search. This Court explicitly refused to inquire whether the warrant was "good under the state law . . . since in no event could it constitute the basis for a federal search and seizure." Id., at 29 (emphasis added). n6 And our recent decisions regarding electronic surveillance have made it clear beyond peradventure that the Fourth Amendment is not tied to the [*394] niceties of local trespass laws. Katz v. United States, 389 U.S. 347 (1967); Berger v. New York, 388 U.S. 41 (1967); Silverman v. United States, 365 U.S. 505, 511 (1961). In light of these cases, respondents' argument that the Fourth Amendment serves only as a limitation on federal defenses to a state law claim, and not as an independent limitation upon the exercise of federal power, must be rejected.

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n5 New York at that time followed the common-law rule that a private person may arrest another if the latter has in fact committed a felony, and that if such is the case the presence or absence of probable cause is irrelevant to the legality of the arrest. See McLoughlin v. New York Edison Co., 252 N. Y. 202, 169 N. E. 277 (1929); cf. N. Y. Code Crim. Proc. § 183 (1958) for codification of the rule. Conspiracy to commit a federal crime was at the time a felony. Act of March 4, 1909, § 37, 35 Stat. 1096.

n6 Conversely, we have in some instances rejected Fourth Amendment claims despite facts demonstrating that federal agents were acting in violation of local law. McGuire v. United States, 273 U.S. 95 (1927) (trespass ab initio); Hester v. United States, 265 U.S. 57 (1924) ("open fields" doctrine); cf. Burdeau v. McDowell, 256 U.S. 465 (1921) (possession of stolen property).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [***HR9] [9]
[***HR10] [10]
[***HR11] [11]
[***HR12] [12]
Second. The interests protected by state laws regulating trespass and the invasion of privacy, and those protected by the Fourth Amendment's guarantee against unreasonable searches and seizures, may be inconsistent or even hostile. Thus, we may bar the door against an unwelcome private intruder, or call the police if he persists in seeking entrance. The availability of such alternative means for the protection of privacy may lead the State to restrict imposition of liability for any consequent trespass. A private citizen, asserting no authority other than his own, will not normally be liable in trespass if he demands, and is granted, admission to another's house. See W. Prosser, The Law of Torts § 18, pp. 109-110 (3d ed. 1964); 1 F. Harper & F. James, The Law of Torts § 1.11 (1956). But one who demands admission under a claim of federal authority stands in a far different [**2004] position. Cf. Amos v. United States, 255 U.S. 313, 317 (1921). The mere invocation of federal power by a federal law enforcement official will normally render futile any attempt to resist an unlawful entry or arrest by resort to the local police; and a claim of authority to enter is likely to unlock the door as well. See Weeks v. United States, 232 U.S. 383, 386 (1914); Amos v. United States, supra. n7 "In such cases there [***626] is no safety for the citizen, [*395] except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime." United States v. Lee, 106 U.S. 196, 219 (1882). n8 Nor is it adequate to answer that state law may take into account the different status of one clothed with the authority of the Federal Government. For just as state law may not authorize federal agents to violate the Fourth Amendment, Byars v. United States, supra; Weeks v. United States, supra; In re Ayers, 123 U.S. 443, 507 (1887), neither may state law undertake to limit the extent to which federal authority can be exercised. In re Neagle, 135 U.S. 1 (1890). The inevitable consequence of this dual limitation on state power is that the federal question becomes not merely a possible defense to the state law action, but an independent claim both necessary and sufficient to make out the plaintiff's cause of action. Cf. Boilermakers v. Hardeman, 401 U.S. 233, 241 (1971).

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n7 Similarly, although the Fourth Amendment confines an officer executing a search warrant strictly within the bounds set by the warrant, Marron v. United States, 275 U.S. 192, 196 (1927); see Stanley v. Georgia, 394 U.S. 557, 570-572 (1969) (STEWART, J., concurring in result), a private individual lawfully in the home of another will not normally be liable for trespass beyond the bounds of his invitation absent clear notice to that effect. See 1 F. Harper & F. James, The Law of Torts § 1.11 (1956).

n8 Although no State has undertaken to limit the common-law doctrine that one may use reasonable force to resist an unlawful arrest by a private person, at