In a decision issued by the U.S. Sixth Circuit Court of Appeals, the Court found that Walter Himmelreich, a federal prisoner, was arguably prevented by prison officials from pursuing claims under the Federal Tort Claims Act (“FTCA”) because of the alleged intimidation and retaliation he faced from the officials. While the appellate court affirmed the district court’s dismissal of the majority of Himmelreich’s claims, it vacated the judgment and remanded as to the prisoner’s claim of retaliation and claim of failure to protect, finding they were not barred by Himmelreich’s failure to exhaust administrative remedies or the fact he had elected to file a claim under the FTCA.
By way of background, in 2010 Himmelreich filed several causes of action against both the Federal Bureau of Prisons and Captain J. Fitzgerald. His claim for retaliation under the First Amendment was based on his placement in administrative detention for sixty days in 2009. Himmelreich alleged that this detention was in retaliation for filing a FTCA claim and a failure to protect claim after he was assaulted by another inmate in 2008. The district court granted defendants summary judgment on the bases Himmelreich failed to exhaust his administrative remedies and that his Eighth Amendment claim was barred since he had elected to file a FTCA claim regarding the assault incident. Himmelreich appealed to the Sixth Circuit.
In addressing whether Himmelreich had exhausted all of his administrative remedies, the Sixth Circuit looked to the Prison Litigation Act (“PLRA”). Under the PLRA, prisoners are prevented from filing suit based on the conditions of the prison unless they have exhausted all available administrative remedies. Exhaustion in the eyes of the court means that prisoners must “make full use of the prison grievance process” and “comply with the system’s critical procedure rules”. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006). However, a prisoner may be excused from complete compliance if improper actions of prison officials render the administrative remedies functionally unavailable.
Himmelreich admitted that he had not completed compliance with the prison’s grievance process, but blamed such on intimidation by Captain J. Fitzgerald. He alleges that Captain Fitzgerald threated to transfer him to a higher-security prison or a penitentiary where “she knows he will get shanked and probably killed” if Himmelreich continued filing grievances relating to the 2008 attack. According to Himmelreich, once he filed his FTCA claim Captain Fitzgerald placed him in the Special Housing Unit. In his complaint, Himmelreich alleges Captain Fitzgerald yelled at him, “You want to know why you’re in here? You’re in here because of the f—— Tort Claim you filed! That’s why you’re in here!”
The Sixth Circuit found that Himmelreich had demonstrated enough evidence that a genuine issue of material fact existed as to whether Captain Fitzgerald intimidated him and ultimately prevented him from exhausting all administrative remedies. The Court stated, “[t]his alleged retaliation and intimidation—if proven true—would render the grievance process functionally unavailable for a person of ordinary firmness.”
In reaching its conclusion, the Court rejected the government’s argument that Himmelreich’s filing of other non-related administrative complaints and the FTCA lawsuit around the time he claims to have been threatened prevented a finding of intimidation. The remaining issues have been remanded to the district court for further proceedings.