Himmelreich v. Fed. Bureau of Prisons

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

CASE NO. 4:10CV2404

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

September 25, 2019

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OPINION AND ORDER [Resolving ECF No. 142]

Before the Court is Defendants' motion for summary judgment (ECF No. 142). Plaintiff responded in opposition (ECF Nos. 156, 157),¹ and Defendants replied (ECF Nos. 163, 164).² Having reviewed the record and the applicable law the Court determines that oral argument is not needed. For the reasons stated herein, the motion is granted as to Defendants Simmons and Butts and denied as to Defendant Fitzgerald.

I. Background

Plaintiff Walter J. Himmelreich is a federal inmate who was previously located at FCI Elkton, a federal correctional institution in Ohio. Plaintiff asserts Bivens³ claims against the three remaining defendants arising under the First and Eighth Amendments to the United StatesConstitution.

A. Claim Against Officer Simmons

Against Defendant Simmons, a Corrections Officer at FCI Elkton, Plaintiff asserts a claim of failure to protect in violation of the Eighth Amendment. Plaintiff alleges that, on October 11, 2008, fellow FCI Elkton inmate Roger Oberkramer threatened to assault Plaintiff. ECF No. 147-1 at PageID #: 1092. On October 14, 2008, FCI Elkton inmate Peter Macari, during a meeting with his Unit Disciplinary Team, refused to leave the Special Housing Unit ("SHU") as scheduled. ECF No. 143-4. On October 16, 2008, Macari, in writing, expressed anxiety about his confinement⁴ and stated that, if released from segregated housing into the general prison population, he would "smash a pedophile." Id. at PageID #: 915. By Plaintiff's account, Plaintiff was "reputedly, among the inmate community, one of the biggest pedophiles on the Elkton compound and is aware that other inmates have that perception of him." ECF No. 1 at PageID#: 6. Macari was released from segregated housing to the general population on October 20, 2008. ECF No. 142-1 at PageID#: 723.

That same day, as inmates were returning to their dormitory units from their daily work assignments (during the "recall movement"), Macari located Plaintiff in an upper stairwell landing, just in front of the inner door to the housing area, and assaulted him as Oberkramer looked on. Id. at PageID#: 723-24. The assault lasted "a minute or two," and about 25 otherinmates were inside the stairwell at the time of the incident, chanting "fight, fight!" ECF No. 147-1 at PageID#: 1026, 1041. Plaintiff says that Macari's assault was "very strong, very forceful . . . a pummeling that [he] had never been subjected to before." Id. at PageID#: 1026.

At the time the assault took place, Officer Simmons (the officer on duty) was standing down the stairs, through the sally port, just outside the building exterior (about ten feet from the inner door), watching the inmates enter the unit building. Id. at PageID#: 1035-37. According to Plaintiff, the inner door was propped open, and Officer Simmons should have been able to hear the commotion from where he stood. Id. at PageID#: 1038-39, 1041, 1051. Shortly after the assault, Officer Simmons found Plaintiff sitting in the stairwell, reported the event to his superior, locked down the unit, and escorted Plaintiff to the Security Office and then to the Lieutenant's Office. Id. at PageID#: 1064-66; ECF No. 143-1 at PageID#: 892.

B. Claim Against Lieutenant Butts

Against Defendant Butts, a former Special Investigative Services Lieutenant at FCI Elkton, Plaintiff asserts claims under the Eighth Amendment pertaining to Lieutenant Butts' response to Macari's threat as well as his investigation of the assault and his alleged oversight of Plaintiff's SHU placement. Specifically, Plaintiff alleges that Lieutenant Butts failed to protect him from Macari's assault by releasing Macari from the SHU into the general prison population even though, as a member of the Special Investigative Services team, Butts had been made aware of the serious risk posed to Plaintiff's safety by Macari's release from the SHU. ECF No. 156 at PageID #: 1596-97; see ECF No. 1 at PageID #: 6. Plaintiff also alleges that Lieutenant Butts violated his constitutional rights by failing to refer Plaintiff's assault to the FBI for criminalprosecution and by failing to override Captain Fitzgerald and unilaterally release Plaintiff from his later placement in the SHU. ECF No. 1 at PageID #: 14; ECF No. 147-1 at PageID #: 1138-39, 1141.

The record reflects that the assault was, in fact, referred to the FBI for investigation, but the government declined prosecution. ECF No. 143-1 at PageID #: 890. Additionally, it is undisputed that, in 2008 and 2009, Lieutenant Butts did not have the authority unilaterally to release an inmate from his SHU placement. ECF No. 148-1 at PageID #: 1192; ECF No. 149-1 at PageID #: 1245-46. Plaintiff has abandoned both such theories of liability. See ECF No. 156 (declining to argue either theory). Plaintiff persists in his argument that Lieutenant Butts violated Plaintiff's Eighth Amendment right by failing to protect Plaintiff from Macari's premeditated attack.

C. Claim Against Captain Fitzgerald

Against Defendant Fitzgerald, a former Captain at FCI Elkton, Plaintiff asserts a claim of First Amendment retaliation. He says that, on March 5, 2009, Captain Fitzgerald oversaw his placement in the SHU shortly after he had filed a grievance against prison staff alleging their failure to protect him from Macari's assault. ECF No. 1 at PageID #: 14-15; ECF No. 147-1 at PageID #: 1118; see related case, Case No. 4:10-cv-307-BYP (N.D. Ohio), ECF No. 1-1 (filed Feb. 11, 2010). In April 2009, during his SHU placement, Plaintiff alleges that Captain Fitzgerald yelled at him through his door: "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 (in this case) at PageID #: 15; ECF No. 147-1 at PageID #: 1132. Plaintiff says he remained in theSHU until May 4, 2009, for a period of 60 days. ECF No. 1 at PageID #: 14; see ECF No. 147-1 at PageID #: 1138.

The Administrative Detention Order placing Plaintiff in the SHU noted, "You are being placed in the Administrative Detention [sic] for a Unit Team Threat assessment based on information received that there was a threat on to your safety based on your own statements." ECF No. 143-2 at PageID #: 909. The Order is dated March 20, 2009, although accompanying documentation explains that Plaintiff was placed in the SHU 15 days prior, on March 5, 2009, pending investigation of his complaints about threats made by other inmates. ECF No. 143-3 at PageID #: 911.

II. Standard of Review

Summary judgment is appropriately granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show "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); see also Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). 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 the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party must "show that the non-moving party has failed to establish an essential element of his case upon which he would bear the ultimate burden of proof at trial." Guarino v. Brookfield Twp. Trustees., 980 F.2d 399, 403 (6th Cir. 1992).

Once the movant makes a properly supported motion, the burden shifts to the non-moving 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 the factfinder. Cox v. Ky. Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995). To defeat the motion, the non-moving party must "show that there is doubt as to the material facts and that the record, taken as a whole, does not lead to a judgment for the movant." Guarino, 980 F.2d at 403. In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party when deciding whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970).

"The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment . . . ." Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). 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, 550 U.S. at 380. In determining whether a factual issue is "genuine," the Court assesses whether the evidence is such that a reasonable factfinder could find that the non-moving party is entitled to a verdict. Id.

III. Analysis

A. Eighth Amendment Failure to Protect

Plaintiff's allegations against Defendants Simmons and Butts are predicated on theSupreme Court's decision approving a Bivens remedy in Farmer v. Brennan, 511 U.S. 825 (1994). In Farmer v. Brennan, a prisoner-plaintiff sued federal prison officials for damages under Bivens alleging their failure to protect her from persistent beatings and rape by fellow inmates in violation of the Eighth Amendment. Farmer, 511 U.S. at 829-30. The Supreme Court vacated the district court's order granting summary judgment for the defendants in that case, and it discussed at length the Eighth Amendment "deliberate indifference" standard of liability for failure-to-protect claims. Id. at 832-47.

1. De...