Walter Himmelreich v. Federal Bureau of Prisons, 766 F.3d 576

Walter J. Himmelreich, a federal prisoner, sued multiple defendants raising retaliation (First Amendment) and failure-to-protect (Eighth Amendment) claims; district court originally dismissed for failure to state a claim, this court remanded two claims for further proceedings.
On remand, defendants moved for summary judgment arguing (1) Himmelreich failed to exhaust administrative remedies under the PLRA and (2) the FTCA judgment bar (28 U.S.C. § 2676) precluded his Eighth Amendment claim because he had filed an earlier FTCA action about the same assault.
Himmelreich conceded he did not complete the prison grievance process but alleged specific intimidation/retaliation by Captain Fitzgerald that deterred him from continuing grievances about the assault and led to placement in the SHU for filing an FTCA claim.
The district court granted summary judgment to defendants on both grounds: failure to exhaust and application of the FTCA judgment bar, relying on circuit precedent and its reading of § 2676.
The Sixth Circuit panel reviewed whether (a) Himmelreich’s asserted intimidation rendered administrative remedies unavailable (excusing exhaustion), and (b) whether dismissal of his prior FTCA suit for lack of subject-matter jurisdiction (discretionary-function exception) triggers the § 2676 judgment bar.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Himmelreich’s failure to exhaust is excused due to intimidation by prison officials	Captain Fitzgerald’s threats and her alleged placement of Himmelreich in SHU deterred him from pursuing grievances; thus administrative remedies were functionally unavailable	Himmelreich filed other minor grievances and an FTCA suit, showing he was not deterred and did not exhaust	Court: Genuine dispute of material fact exists; alleged specific threats could deter a person of ordinary firmness; exhaustion may be excused — vacated summary judgment on this ground
Whether the FTCA § 2676 judgment bar precludes Himmelreich’s Bivens/Eighth Amendment claim because he filed an FTCA action about the same incident	The prior FTCA filing should not bar the Bivens claim because the FTCA suit was dismissed for lack of subject-matter jurisdiction (discretionary-function exception) and thus produced no judgment under § 2676	Section 2676 bars any action by the claimant on the same subject matter once an FTCA action is decided; court below read § 2676 broadly to apply here	Court: § 2676 does not apply when the FTCA action was dismissed for lack of subject-matter jurisdiction; dismissal under the discretionary-function exception is not a judgment triggering the bar — vacated summary judgment on this ground

Woodford v. Ngo, 548 U.S. 81 (proper exhaustion requires compliance with procedural rules; full use of grievance process)
Thaddeus-X v. Blatter, 175 F.3d 378 (en banc) (availability standard: whether official acts would deter a person of ordinary firmness)
Bell v. Johnson, 308 F.3d 594 (deterrence standard applied to exhaustion excuses)
Harris v. United States, 422 F.3d 322 (judgment on merits of FTCA claim can bar related Bivens claim where a final judgment exists)
Manning v. United States, 546 F.3d 430 (addressed retroactive application of § 2676 where an FTCA judgment on the merits existed)
Kohl v. United States, 699 F.3d 935 (discretionary-function exception deprives court of subject-matter jurisdiction over FTCA claim)
Hallock v. Bonner, 387 F.3d 147 (FTCA dismissal for lack of subject-matter jurisdiction does not produce a § 2676 judgment)
Risher v. Lappin, 639 F.3d 236 (on assumption of truth for nonmovant’s factual allegations at summary judgment)
Boyd v. Corrections Corp. of America, 380 F.3d 989 (contrast: vague allegations insufficient to excuse exhaustion)
Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (jurisdictional dismissals carry no preclusive effect)