NOT RECOMMENDED FOR PUBLICATION File Name: 23a0188n.06
Case No. 22-5384
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Apr 24, 2023 ) DEBORAH S. HUNT, Clerk STEVEN STAUB, ) Plaintiff-Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE WESTERN ) DISTRICT OF KENTUCKY TRACY NIETZEL, et al., ) Defendants-Appellees. ) OPINION )
Before: LARSEN, DAVIS, and MATHIS, Circuit Judges.
DAVIS, Circuit Judge. Steven Staub, a state prisoner serving time in the Kentucky
Department of Corrections (“KDOC”), brought this civil rights action in federal court pursuant to
42 U.S.C. § 1983, alleging a violation of his constitutional right to due process. U.S. CONST.
amend. XIV. He asserts claims against several employees of the KDOC who were involved in
collecting evidence for and participating in disciplinary proceedings for Staub’s alleged possession
of contraband in his prison cell. Staub was found guilty of the violation and penalized with 90
days in administrative segregation and forfeiture of 180 days’ good-time credit. Staub successfully
appealed his misconduct conviction to the Kentucky Court of Appeals, which determined that the
guilty finding was not supported by “some evidence” given the “suspect” chain-of-custody form
prepared by defendant Tracy Nietzel. Case No. 22-5384, Staub v. Nietzel, et al.
After the disciplinary finding was expunged and his good-time credit restored, Staub
brought this suit. Staub claims that Defendants violated his right to due process under the
Fourteenth Amendment when they acted in concert to create and forge the chain-of-custody
document used to find him guilty of possessing drugs in the prison disciplinary proceeding. Staub
also asserts that Defendants Dawn Deckard, the adjustment officer who presided over his
disciplinary hearing, and Clark Taylor, the warden who affirmed Deckard’s guilty finding, violated
his due process rights by convicting him based on insufficient evidence under the “some evidence”
standard established by the Supreme Court in Superintendent, Massachusetts Correctional
Institution, Walpole v. Hill, 472 U.S. 445, 454 (1985).
Staub sought summary judgment in district court, arguing that the Kentucky Court of
Appeals’ decision has preclusive effect, and thus, forecloses Defendants from relitigating the issue
of whether they violated his due process rights. Defendants also pursued summary judgment,
asserting that the state court decision was not entitled to preclusive effect on the federal
proceedings and they were entitled to summary judgment on all claims. 1 The district court sided
with Defendants, concluding, in pertinent part that: (1) the Kentucky Court of Appeals’ decision
did not preclude Defendants from defending this action; (2) Defendant Nietzel was entitled to
summary judgment because even if the chain-of-custody was faulty, she did not cause any alleged
deprivation of rights because she did not decide Staub’s guilt and because false accusations of
misconduct do not in and of themselves create a constitutional violation; (3) Defendant Taylor was
1 Staub does not appeal the district court’s decision on his state-law claims or his conspiracy claims, his claims against Defendants Faulkner, Beasley, Thompson, Wilson, and Brown and the dismissal of the incorrectly named defendant, Bart Nyer. His appeal is limited to the district court’s decision on the preclusive effect of the Kentucky Court of Appeals decision, the dismissal of Defendant Deckard for failure to serve the summons and complaint, and the court’s decision to grant summary judgment in favor of Defendants Taylor and Nietzel.
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entitled to qualified immunity because he reasonably could have concluded under applicable Sixth
Circuit caselaw that despite a faulty chain-of-custody form, there was still “some evidence”
sufficient to support a guilty finding; and (4) Defendant Deckard was entitled to dismissal under
Federal Rule of Civil Procedure 4(m) because Staub failed to effectuate service of the summons
and complaint. We largely agree with the reasoning of the district court, and for the reasons that
follow, we AFFIRM.
I.
On December 19, 2012, prison officials at Kentucky’s Northpoint Training Center
(“NTC”), where Staub was serving a state prison sentence, searched Staub’s living quarters and
found what appeared to be 11 Suboxone strips wrapped in cellophane. Marcus Faulkner, a training
instructor at NTC, personally searched Staub and his locker, which Staub identified and unlocked
for the search. Faulkner discovered several CD cases containing cellophane-wrapped Suboxone
strips. The next day, Faulkner completed a disciplinary report describing the search. In the report,
Faulkner noted that he found 11 Suboxone strips in Staub’s locker, completed a chain-of-custody
form, took photos of the Suboxone strips, and turned the strips over to Captain Jonathan Beasley
to be placed in the evidence locker. After receiving the strips from Faulkner, Beasley completed
an Extraordinary Occurrence Report (“EOR”), which included a photocopy of the chain-of-
custody form. That form showed three separate entries from December 19, 2012: one entry
documenting Faulkner’s seizure of the suspected Suboxone strips from Staub’s locker; one entry
marking the transfer of those strips from Faulkner to Beasley; and one entry confirming Beasley’s
placement of the strips in the evidence locker. Beasley’s chain-of-custody form did not include
an Evidence Log number (that portion of the form was blank) and it indicated that the Suboxone
strips had been obtained from “Bed 48,” which apparently was not Staub’s bed number.
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Staub was charged in a prison disciplinary proceeding with “possession or promoting of
dangerous contraband,” to which he pleaded not guilty. The correctional facility held a
disciplinary hearing on January 10, 2013. The chain-of-custody form submitted during the hearing
was the version that Beasley had attached to his December 19, 2012 EOR; it showed Beasley as
the last person to handle the seized Suboxone strips. At the hearing, Staub argued that there was
no evidence that the strips seized had been tested by a lab. He also pointed out that the strips did
not have any evidence tag number assigned to them. The presiding adjustment officer nonetheless
found Staub guilty “based on the fact that . . . Faulkner found a total of 11 [S]uboxone strips in
[inmate] Staub’s locker” and penalized Staub with 90 days in disciplinary segregation and
forfeiture of 180 days of good-time credit.
Staub appealed the adjustment officer’s decision to NTC’s warden, who ultimately ordered
that Staub’s case be reheard.2 Because Staub had since been transferred, officials scheduled the
second disciplinary hearing to take place at the Kentucky State Reformatory (“KSR”). Faulkner
prepared a new disciplinary report, and Lt. Michael D. Wilson at KSR investigated the new report.
Lt. Dawn Deckard, also at KSR, was assigned to serve as the presiding adjustment officer at
Staub’s second disciplinary hearing.
On February 28, 2013, Deckard received an email from Lt. Tracy Nietzel at NTC with
information she had requested for the rehearing of Staub’s case. Nietzel attached to the email an
“MMC Buprenorphine HCL Test” worksheet dated December 19, 2012, which indicated that 33
strips3 tested positive for “Buprenorphine HCL” – one of Suboxone’s main ingredients. The
2 The parties do not dispute this point, but in their motion for summary judgment, Defendants point out that there is no “extant documentation” of the warden’s review of Staub’s first disciplinary proceeding. 3 As for the discrepancy between the number of strips tested by Nietzel (33) and the number found in Staub’s living quarters (11), Nietzel apparently discovered during her field tests that each of the “strips” seized was actually a cellophane-wrapped packet of three strips.
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worksheet, which was signed by Nietzel and a witness, listed Staub as the “Subject,” Nietzel as
the “Examiner,” and “550” as the “Evid #.” Nietzel also included two photographs of a testing
vial as attachments to her email. On March 1, 2013, Wilson emailed Nietzel to ask if there was an
updated chain-of-custody form for the Suboxone strips. Nietzel emailed Wilson a copy of the
requested form ten days later.
Deckard presided over the second hearing on March 19, 2013 and found Staub guilty of
possession or promoting of dangerous contraband. According to her report, Deckard based her
decision on (1) the search of Staub on December 19, 2012; (2) the 11 Suboxone strips Faulkner
found while searching Staub’s property; (3) Beasley’s statement that he placed those strips in the
evidence locker; (4) evidence from Nietzel that there were actually 33 strips, that she tested the
strips, and that the tests were positive for Buprenorphine; and (5) the fact that Nietzel identified
the Suboxone through the pill identifier just as she would with a tablet or capsule. Deckard
imposed a punishment of 90 days in disciplinary segregation, which Staub had already served by
that point, and forfeiture of 180 days of good-time credit.
Staub appealed Deckard’s decision to KSR’s warden, Clark Taylor, challenging the
sufficiency of the evidence supporting Deckard’s finding of guilt. First, Staub highlighted
inconsistencies between Nietzel’s chain-of-custody form and the one reviewed during Staub’s
initial disciplinary hearing. See Staub v. Taylor, No. 2014–CA–001452–MR, 2015 WL 2445103,
at *3 (Ky. Ct. App. May 22, 2015). He also challenged the fact that Deckard heard and decided
his case despite her involvement in gathering evidence against him. Id. Taylor denied Staub’s
appeal on April 18, 2013, explaining that the Suboxone strips were found in his assigned locker;
that a total of 33 strips had been seized; that these strips tested positive and were properly
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identified; that Suboxone strips are very distinctive in shape and color; and that the foregoing was
sufficient to affirm Deckard’s finding of guilt.
After Taylor denied his appeal, Staub filed a petition for declaration of rights in Oldham
Circuit Court. He named Taylor and Deckard as defendants in their respective capacities as warden
and adjustment officer, asserting that the officials violated his due process rights during his second
disciplinary hearing at KSR. The circuit court dismissed Staub’s petition, and Staub appealed to
the Kentucky Court of Appeals. The Kentucky Court of Appeals reversed the circuit court’s
dismissal, finding that Staub’s due process rights were violated because the “disciplinary action
decision” issued by Deckard and affirmed by Taylor “was not supported by at least ‘some
evidence’ of record” as required under Supreme Court precedent. Staub, 2015 WL 2445103, at *1
(citing Hill, 472 U.S. at 454). More specifically, the Kentucky Court of Appeals found that
Deckard and Taylor’s decisions “were based almost entirely upon the results of Lt. Nietzel’s field
test on the suspected Suboxone strips” and “her identification” of those strips “through the pill
identifier,” evidence the court deemed questionable. Id. at *5. In the court of appeals’ view, the
“new version” of the chain-of-custody form that Nietzel emailed to Wilson in March 2013 was
“highly suspect” because it included a “fourth entry [that] was not on” the version of the form that
KSR officials had initially received as part of the record of Staub’s first disciplinary hearing. Id.
As such, the chain-of-custody document could not “form the basis for” admitting her field-test
results as evidence against Staub. Id. Without the chain-of-custody document, “there [wa]s no
evidence linking” the field-test results “to the strips found” in Staub’s living quarters and “no other
evidence in the record to support the imposition of any disciplinary action” against Staub, leading
the Court of Appeals to conclude that “there [wa]s not ‘some evidence’ in the record to support
the finding of guilt” against him. Id. at 5–6. After the Kentucky Court of Appeals issued its
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decision, Staub’s previously-forfeited good-time credit was restored, and the disciplinary actions
stemming from the December 19, 2012 search at NTC were expunged from his prison record.
Staub subsequently filed the instant prisoner civil rights action in district court. He now
appeals the district court’s denial of his motion for summary judgment, the grant of Defendants’
motion for summary judgment, and the dismissal of Defendant Deckard.
II.
This court reviews summary judgment orders de novo. Kentucky v. Yellen, 54 F.4th 325,
335 (6th Cir. 2022) (citing Jordan v. Howard, 987 F.3d 537, 542 (6th Cir. 2021)). Drawing all
reasonable inferences in favor of the nonmovant, we examine whether the party seeking summary
judgment demonstrated “that there is no genuine dispute as to any material fact” and that it is
“entitled to judgment as a matter of law.” Id. (quoting FED. R. CIV. P. 56(a)). On cross-motions
for summary judgment, the court applies these same standards to each of the individual motions.
Id. (citing Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).
III.
We find that the district court properly concluded that the state appellate court’s resolution
of Staub’s challenge to his finding of misconduct did not preclude it from addressing his due
process claim. As an initial matter, “[f]ederal courts apply the preclusion law of the State that
rendered the initial judgment” – here, Kentucky. Tarrify Props., LLC v. Cuyahoga Cnty., 37 F.4th
1101, 1109 (6th Cir. 2022) (citing CHKRS, LLC v. City of Dublin, 984 F.3d 483, 490 (6th Cir.
2021)). The district court relied on Kentucky Bar Ass’n v. Greene, 386 S.W.3d 717, 724 (Ky.
2012) for its conclusion that issue preclusion under Kentucky law, “operate[s] as a bar to further
litigation” only if the following five elements are met: (1) “the party to be bound in the second
case must have been a party in the first case”; (2) “the issue in the second case must be the same
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as the issue in the first case”; (3) “the issue must have been actually litigated”; (4) “the issue was
actually decided in that action”; and (5) “the decision on the issue in the prior action must have
been necessary to the court’s judgment and adverse to the party to be bound.” The Greene court
explained that Kentucky’s issue preclusion rule brings with it an expectation that a court in which
the doctrine is later invoked will consider whether the party against whom it is asserted had a
“realistically full and fair opportunity to present his case.” 386 S.W.3d at 724.
Staub contends that the first element listed – that the party to be bound in the second action
must have been a party in the first case – is not required under Kentucky law because Kentucky
recognizes non-mutual collateral estoppel. See Moore v. Commonwealth, 954 S.W.2d 317 (Ky.
1997). He is partly right, but this does not help him. While it is true that the Moore court listed
only four elements for collateral estoppel instead of five, it expressly held that non-mutual
collateral estoppel is limited to circumstances where “at least the party to be bound is the same
party in the prior action.” Id. at 319; see also Sedley v. City of W. Buechel, 461 S.W.2d 556 (Ky.
1970) (explaining that a person who was not party to a prior action may assert res judicata “against
a party to that action”) (emphasis added). Thus, under Kentucky law, the party against whom
preclusion is sought must still be the same party from the initial action.
Staub argues that even if this requirement generally applies, it is excused here because
Defendants were adequately represented by prior affiliated parties – namely Taylor, the warden,
and Deckard, the adjustment officer. Yet, two fundamental problems with Staub’s argument
emerge. First, the prior action was an official capacity suit only, which cannot operate to preclude
defendants sued in their individual capacities in a subsequent suit. Second, the individual
defendants did not have a full and fair opportunity to litigate their defenses in the first suit, which
defeats Staub’s preclusion argument. Each point is addressed in turn below.
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A. Staub’s First Official Capacity Suit Does Not Have Preclusive Effect on the Second Suit Brought Against Defendants in Their Individual Capacities.
Based on Staub’s own representation that he sued Taylor in his capacity as Warden, the
district court determined that he sued Taylor in his official capacity in the prior action, and further
concluded that the petition for declaration of rights was the functional equivalent of a suit against
the KDOC.4 We agree. In Smith v. O’Dea, the Kentucky Court of Appeals explained that a petition
for declaratory judgment pursuant to KY. REV. STAT. § 418.040 is a vehicle for inmates to seek
review of their disputes with the Corrections Department. 939 S.W.2d 353, 355–56 (Ky. Ct. App.
1997) (citing Polsgrove v. Ky. Bureau of Corrs., 559 S.W.2d 736 (1977); Graham v. O’Dea, 876
S.W.2d 621 (Ky. App. 1994)). The Smith court observed that while such suits brought by inmates
are technically original actions, they operate more like appeals. First, they invoke the circuit
court’s authority to act as a court of review and additionally, the review is limited to the
administrative record before it, reducing the need for any independent judicial factfinding. And if
further factfinding is necessary, the proper course is generally to remand to the agency for
additional investigation or explanation. Smith, 939 S.W.2d at 356. Accordingly, we agree that
Staub’s first suit against Taylor was an official capacity suit only. Importantly, a suit against
Taylor in his official capacity is a suit against the KDOC itself. Alkire v. Irving, 330 F.3d 802,
810 (6th Cir. 2003) (“[I]ndividuals sued in their official capacities stand in the shoes of the entity
they represent.”) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see also Matthews v.
Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (“A suit against an individual in his official capacity is
the equivalent of a suit against the governmental entity.”). The question thus becomes, whether
4 The district court did not address whether Deckard was sued in her official capacity because she was dismissed from this action for failure to serve process on her. See infra.
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the prior suit has preclusive effect in this case, when Taylor was named in his official capacity in
that suit and Nietzel was not named in any capacity, but both are now sued in their individual
capacities.
The Kentucky Supreme Court has not directly addressed the issue of whether an official
capacity suit can operate to preclude a later-filed suit against defendants in their individual
capacities. To predict how the Kentucky Supreme Court would resolve this issue, we must look
to other “available data,” including decisions of the state’s lower appellate courts, restatements of
law, and other federal court decisions interpreting state law. See In re Darvocet, 756 F.3d 917,
937 (6th Cir. 2014); Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999).
To begin, courts generally do not grant preclusive effect to an earlier judgment when a
party against whom preclusion is sought is later sued in a different capacity. As we have previously
held, “[a] party appearing in an action in one capacity, individual or representative, is not thereby
bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he
appears in another capacity.” Mitchell v. Chapman, 343 F.3d 811, 823 (6th Cir. 2003) (quoting
Restatement (Second) of Judgments § 36(2) (1982)) (collecting cases); see also True Gospel
Church of God in Christ, Hopkinsville v. Church of God in Christ, No. 2012-CA0000228-MR,
2013 WL 3388742, at *3 (Ky. Ct. App. July 5, 2013) (“[A] party appearing in a representative
capacity in a former action is not barred by claim preclusion in a subsequent action if that party is
proceeding individually or in a different representative capacity.”) (citing Restatement (Second)
of Judgments § 36(2) (Am. L. Inst. 1982)); 18A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE
AND PROCEDURE § 4458 (3d ed. 2022) (“The relationships between a government and its officials
justify preclusion only as to litigation undertaken in an official capacity. Thus a judgment against
a government or one government official does not bind a different official in subsequent litigation
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that asserts a personal liability against the official.”). And as the district court observed, Kentucky
courts have regularly turned to the Restatement of Judgments when analyzing issue preclusion.
See e.g., Appalachian Reg’l Healthcare, Inc. v. U.S. Nursing Corp., 824 F. App’x 360, 369–70
(6th Cir. 2020) (citing Clark’s Adm’x v. Rucker, 258 S.W.2d 9, 9–11 (Ky. 1953) and Buis v. Elliott,
142 S.W.3d 137, 141 (Ky. 2004)); see also Miller v. Admin. Off. of the Cts., 361 S.W.3d 867, 872-
73 (Ky. 2011) (applying Restatement (Second) of Judgments, § 26). In sum, cases from this court,
the Kentucky Court of Appeals, and the Restatement of Judgments are all in agreement that an
official capacity suit cannot preclude a subsequent suit brought against officials in their individual
capacities. The weight of the foregoing authority combined with the Kentucky Supreme Court’s
prior reliance on the Restatement of Judgments leads us to conclude that the Kentucky Supreme
Court would most likely find that Staub’s earlier official capacity suit has no preclusive effect in
this matter as to any defendant sued in their individual capacity.
B. Defendants Did Not Have a Full and Fair Opportunity to Litigate Their Defenses in the First Action.
Next, we conclude that Defendants here did not have a “full and fair opportunity” to litigate
their defenses in the previous action – another critical consideration in determining when
preclusion may apply. See Greene, 386 S.W.3d at 724 (“The rule contemplates that the court in
which the doctrine is asserted will inquire into whether the judgment in the former action was in
fact rendered under such conditions that the party against whom the doctrine is pleaded had a
realistically full and fair opportunity to present his case.”). As an initial matter, Defendants
Nietzel, Beasley, Wilson, Thompson, and Brown were not named as parties in the earlier state
court case. And Taylor and Deckard were only named in their official capacities, rendering them
stand-ins for the KDOC. A governmental entity–effectively the only defendant in the first suit–
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cannot assert personal immunities like qualified immunity. Alkire, 330 F.3d at 810–11. Thus,
none of the defendants in the earlier case could assert the defense of qualified immunity. Further,
because of the limited nature of the appellate review in the earlier Kentucky action, the parties in
that case had no opportunity to conduct discovery. These facts weaken any argument that
Defendants had a full and fair opportunity to litigate Staub’s claims and their own defenses.
Furthermore, the Restatement (Second) of Judgments § 28 (Am. L. Inst. 1982) provides
that an earlier suit does not preclude re-litigation where a “new determination . . . is warranted by
differences in quality or extensiveness of the procedures followed in the two courts.” Id. This
exception applies where “the procedures available in the first court may have been tailored to the
prompt, inexpensive determination of small claims and thus may be wholly inappropriate to the
determination of the same issues when presented in the context of a much larger claim” or the
“scope of review in the first action may have been very narrow.” Id. cmt d. Moreover, the
Kentucky Court of Appeals has concluded that where an earlier action involved relaxed rules of
evidence, a system to quickly determine unemployment benefit status, and concerned minimal
amounts of damages, unlike a regular civil action, § 28’s exception applies. Bd. of Educ. of
Covington v. Gray, 806 S.W.2d 400, 403 (Ky. Ct. App. 1991). Similarly, here, the first action was
not an action for money damages, and the court’s review was primarily limited to the
administrative record. Accordingly, because none of the individual defendants in this case had the
opportunity to raise and litigate the issue of qualified immunity in the first suit, and the first action
was limited in several important respects, they cannot be barred from litigating their defenses here.
For these reasons, we find that the Kentucky Court of Appeals’ decision has no preclusive effect
in this case.
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IV.
Staub next argues that the district court erred when it ruled that his due process claim
against Nietzel was barred as a matter of law. The district court concluded that even if Staub raised
a genuine issue of material fact as to whether Nietzel forged the chain-of-custody form, “her mere
creation of a forged document would not amount to a standalone procedural-due-process
violation.” The court identified two reasons for this conclusion. First, it concluded that regardless
of the authenticity of the form, Nietzel was not involved in deciding Staub’s guilt, and thus, could
not have caused the unconstitutional deprivation of any liberty interest. Second, relying on
Jackson v. Hamlin, 61 F. App’x 131, 132 (6th Cir. 2003) (citing Freeman v. Rideout, 808 F.2d
949, 951 (2d Cir. 1986)), the district court observed that there exists no constitutional right to be
free from false accusations of misconduct. It concluded, more particularly, that the filing of a false
disciplinary report or the filing of fabricated charges “do[es] not constitute a deprivation of
constitutional rights where the charges are subsequently adjudicated in a fair hearing.” Cromer v.
Dominguez, 103 F. App’x 570, 573 (6th Cir. 2004). Applying these standards to Staub’s
circumstances, the court reasoned that since the facility afforded him a due process hearing, during
which an adjustment officer independently assessed the authenticity and adequacy of the evidence
against him, any alleged forgery by Nietzel does not give rise to a per se constitutional violation.
Staub contends, however, that it has been clearly established that “knowing fabrication of
evidence violates constitutional rights.” Mills v. Barnard, 869 F.3d 473, 486 (6th Cir. 2017); see
Stemler v. City of Florence, 126 F.3d 856, 872 (6th Cir. 1997). But, as Staub himself
acknowledges, both Mills and Stemler dealt with “the knowing presentation of fabricated evidence
in a state court criminal trial.” Appellant’s Br. at 38 (emphasis added). Administrative
proceedings resolving misconduct charges, on the other hand, are not criminal prosecutions and
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the Supreme Court has stated that “the full panoply of rights due a defendant in [a criminal
prosecution] does not apply” to prison disciplinary proceedings. Wolff v. McDonnell, 418 U.S.
539, 556 (1974). This is so because it is necessary to accommodate both “institutional needs and
objectives and the provisions of the Constitution that are of general application.” Id. To be clear,
prisoners are not left without constitutional protection from fabricated evidence. Rather, the due
process rights retained by prisoners in the context of such proceedings are tied directly to the
procedural safeguards set up to determine the prisoner’s guilt. See id. at 558. Staub has cited no
case that makes a similar finding in the context of a misconduct hearing.
Relevant here, as it relates to any suspected fabrication of evidence introduced during the
misconduct proceedings, Staub received the full panoply of procedural due process protections.
Nietzel argues that the evidence of this fact is that (1) the adjustment officer (Deckard)
independently assessed the authenticity and adequacy of the evidence against Staub, and (2) the
warden (Taylor) also independently reviewed that evidence. This view finds support in the
caselaw relied on by the district court. See Jackson and Cromer, supra. While the unpublished
decisions in Jackson and Cromer carry no precedential weight, they are persuasive and consistent
with cases from our sister circuits that address this issue in depth. For example, the Seventh Circuit
starts with the premise that a government official’s knowing use of false evidence in a criminal
trial, like the cases on which Staub relies, is distinguishable from a prison official testifying falsely
or planting false evidence in a misconduct proceeding. Hanrahan v. Lane, 747 F.2d 1137, 1140–
41 (7th. Cir. 1984); see also Mitchell v. Senkowski, 158 F. App’x 346, 349 (2d Cir. 2005) (“The
issuance of false misbehavior reports and provision of false testimony against an inmate by
corrections officers is insufficient on its own to establish a denial of due process. Rather, such
action violates due process only where either procedural protections were denied that would have
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allowed the inmate to expose the falsity of the evidence against him, or where the fabrication of
evidence was motivated by a desire to retaliate for the inmate’s exercise of his substantive
constitutional rights.” (citations omitted)). For this reason, the Hanrahan court concluded that the
protections against arbitrary actions by prison officials (e.g., fabrication of evidence), are the
procedural due process requirements mandated by Wolff, 418 U.S. at 563-66. Before a prisoner
may be punished, the prisoner must be afforded these protections, including advance written notice
of the alleged violation; a written statement of fact-finding; and the right to present witnesses and
evidence where it would not be unduly hazardous to institutional safety. Hanrahan, 747 F.2d at
1140. The court reasoned that “an impartial decisionmaking body protects the integrity of the
procedure.” Id. (citing Redding v. Fairman, 717 F.2d 1105 (7th Cir. 1983), cert. denied, 465 U.S.
1025 (1984)). And these procedural due process requirements protect prisoners from “arbitrary
actions extinguishing their privileges.” Id. (quoting Redding, 717 F.2d at 1116). This is so because
the disciplinary procedures (1) allow a prisoner a chance to defend against improper or erroneous
charges; (2) ensure fair, impartial decision-making on the part of prison officials before any
imposition of sanctions against a prisoner; and (3) allow an inmate the opportunity to tell his own
version of the events at issue to the disciplinary committee. Id.
Nothing in this record suggests that prison officials deprived Staub of these procedural
protections. Staub’s complaint about the process provided centers on the allegedly fabricated
chain-of-custody form. He does not suggest that he was denied the opportunity to tell his side of
the story or to otherwise defend himself. Under these circumstances, we find Hanrahan’s
reasoning persuasive. Prison officials provided Staub appropriate procedural due process
measures as set forth in Wolff. This course of action offered the requisite protections against
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arbitrary actions by prison officials– here, the allegedly fabricated chain-of-custody form. Because
we affirm on this ground, we need not address the district court’s causation analysis.
V.
Staub next contends that the district court incorrectly applied qualified immunity to his
claim that Taylor violated his due process rights. He urges this court to conclude Taylor is not
entitled to qualified immunity because the “some evidence” standard in Hill is long-established.5
Defendants argue that the district court got it right by requiring a more specific clearly established
right than the general violation of the “some evidence” standard set forth in Hill. We agree.
The defense of qualified immunity “protects government officials performing discretionary
functions unless their conduct violates a clearly established statutory or constitutional right of
which a reasonable person in the official’s position would have known.” Brown v. Lewis, 779 F.3d
401, 411 (6th Cir. 2015) (quoting Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006)).
A plaintiff seeking to overcome qualified immunity must show that (1) “a constitutional violation
has occurred” and (2) the “violation involved a clearly established constitutional right of which a
reasonable person would have known.” Id. (quoting Sample v. Bailey, 409 F.3d 689, 695-96 (6th
Cir. 2005)).
The district court assumed without deciding that the Kentucky Court of Appeals was
correct in concluding that Taylor violated the “some evidence” standard. The district court
determined, however, that it was not “clearly established” that Taylor would violate this standard
by relying, in part, on a questionable chain-of-custody form to find Staub guilty of possessing
5 Hill requires that a prison disciplinary board’s decision to find an inmate guilty of a charged offense to be supported by “some evidence.” Hill, 472 U.S. at 455–56. This review does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Id. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the board. Id.
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contraband. For instance, in Higgs v. Bland, where the plaintiff introduced evidence indicating
lapses in the chain-of-custody, we held that “the Due Process Clause has never been construed to
require that the procedures used to guard against an erroneous deprivation of a protectible
‘property’ or ‘liberty’ interest be so comprehensive as to preclude any possibility of error.” 888
F.2d 443, 449 (6th Cir. 1989) (quoting Mackey v. Montrym, 443 U.S. 1, 13 (1979)). We also noted
that due process “does not mandate that all governmental decision making comply with standards
that assure perfect, error-free determinations.” Id.; see also Baker v. Kassulke, 959 F.2d 233, at
*1 (6th Cir. 1992) (unpublished) (asserting that state prisoners are “not constitutionally entitled to
an ‘air-tight’ chain of custody” under the Due Process Clause). We had “little difficulty” finding
that the positive drug test results, despite the lapses in the chain of custody, constituted “some
evidence” to support the guilty finding. Higgs, 888 F.2d at 449; see also Easton v. U.S. Corr.
Corp., 45 F.3d 430 (6th Cir. 1994) (unpublished) (positive drug test was “some evidence”
sufficient to support a guilty finding even where incident report showed that the sample was stored
three hours before it was taken from the inmate); Baker, at *1 (positive urinalysis test constitutes
“some evidence” to support guilty finding.).
When Staub administratively appealed Deckard’s decision, Taylor upheld the guilty
finding based on the search uncovering the Suboxone strips in the locker Staub identified as his
own, the fact that the strips tested positive for Buprenorphine, and the fact that the strips were
properly identified. A reasonable prison official in Taylor’s position could have interpreted Higgs
to mean that the record contained “some evidence” sufficient to affirm the guilty finding, despite
the purportedly problematic chain-of-custody process. Accordingly, Taylor is entitled to qualified
immunity and the district court properly granted summary judgment in his favor.
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VI.
Staub also argues that the district court improperly dismissed Deckard from this lawsuit.
We conclude, however, that the district court did not abuse its discretion in dismissing Deckard
because Staub never served her with the summons and complaint. We review a district court’s
judgment dismissing a complaint for failure to effect timely service of process under the abuse-of-
discretion standard. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996). “A district court abuses its
discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the
law or uses an[ ] erroneous legal standard.” Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th
Cir. 1995) (citation omitted). We may reverse only if “firmly convinced that a mistake has been
made, i.e., when we are left with a definite and firm conviction that the trial court committed a
clear error of judgment.” United States v. Heavrin, 330 F.3d 723, 727 (6th Cir. 2003) (citation
omitted).
Once Staub filed his complaint, the district court ordered the Clerk of the Court to forward
the complaint by certified mail to the Justice & Public Safety Cabinet, Office of Legal Counsel.
The order further gave the Office of Legal Counsel 30 days to return the waiver of service for
defendants. Unlike the other defendants, Deckard did not waive service. The district court’s order
directed the Clerk of the Court to prepare and issue the summons if a defendant declined to waive
service and further directed the U.S. Marshals Service to serve a copy of the summons and
complaint on that defendant. In the order directing service, the district court also warned Staub
that if he received notice that a summons was returned to the court, then he “must take steps to
remedy the defect in service by providing additional information to the Court” and that a failure
to do so might result in dismissal of the unserved defendant. On July 20, 2016, several defendants
returned the waiver of service, but Deckard was not among them. Nevertheless, the Department
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of Corrections Office of Legal Services provided an address for Deckard. It does not appear from
the district court docket that the clerk’s office ever issued a summons for Deckard; nor did it
provide the papers to the Marshal for service of the summons and complaint. Because the clerk
of the court never issued a summons – and no summons was ever returned to the court unserved –
the trigger for the court’s order requiring Staub to provide additional information or face dismissal
never occurred. Notwithstanding the administrative snafu, Staub was on notice that Deckard
remained unserved by way of the return of waiver of service.
If a plaintiff does not serve the defendant within 90 days after filing the complaint, the
district court must dismiss the action without prejudice or order that proper service be made.
Savoie v. City of E. Lansing, Mich., No. 21-2684, 2022 WL 3643339, at *2 (6th Cir. Aug. 24,
2022) (citing FED. R. CIV. P. 4(m)). If the plaintiff shows good cause for the deficient service, the
district court must extend the time for service. Id. In its order on the parties’ motions for summary
judgment, the district court ordered Staub to show cause why Deckard should not be dismissed
based on Staub’s failure to serve her with the summons and complaint. In response, Staub pointed
out that Deckard was aware of the lawsuit, having filed an affidavit in support of Defendants’
motion for summary judgment. Staub also pointed out that the Marshals Service failed to
effectuate service in accordance with the court’s order. But the district court was unpersuaded and
concluded that Staub had not shown good cause for the failure to timely serve the summons and
complaint on Deckard. More specifically, the district court faulted Staub’s failure – from 2016 to
2022 – to do anything about the lack of service on Deckard. It also concluded that the order
directing the Marshals Service to serve the complaint did not excuse Staub’s failure.
On appeal, Staub relies on Byrd v. Stone in support of his claim that he showed good cause.
94 F.3d 217 (6th. Cir. 1996). In Byrd, the district court had granted the plaintiff in forma pauperis
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status, but the clerk’s office failed to issue the summons as required by 28 U.S.C. § 1915(c)6 and
failed to appoint a U.S. Marshal to effectuate service as required by Federal Rule of Civil
Procedure 4(c)(3).7 Id. at 220. On plaintiff’s inquiry, the Marshals Service informed him that it
was taking care of service, but the clerk of the court never provided the papers for service. Id. at
218. On appeal from the district court’s dismissal of Byrd’s claims against the unserved
defendants, we found the clerk’s office and the Marshals Service “plainly derelict” in their duties
to serve the summons and complaint, and concluded such failures constituted a showing of good
cause under Rule 4. Id. at 220.
Rather than Byrd, the district court here relied on VanDiver v. Martin, 304 F. Supp. 2d 934,
943 (E.D. Mich. 2004). In VanDiver, a district court found that the plaintiff’s failure to act, or
notify, or request the Marshal to locate the unserved defendants “superseded” any neglect by the
Marshal. Id. at 943. The court distinguished Byrd because, unlike the circumstances in that case,
the clerk’s office in VanDiver issued the summons and the Marshals Service mailed copies of the
summons and complaint to the defendants, who later were found no longer to be employed by the
Michigan Department of Corrections. Id. at 936. At this juncture, the court concluded that the
plaintiff’s failure to act superseded the Marshal’s failure to do its job. Id. at 943. The key
difference between Byrd and VanDiver was that the Marshals Service had attempted service in
VanDiver, followed by the plaintiff’s failure to take any action to ensure proper service despite
notice, by return of unexecuted summonses, that the defendants had not been served. Id. at 937.
At first blush, Staub’s circumstances seem more like Byrd than VanDiver because the
specific trigger for Staub to provide additional information for service to the court did not occur.
6 Now 28 U.S.C. § 1915(d). 7 Byrd refers to Rule 4(c)(2) in error.
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See Reed-Bey v. Pramstaller, 607 F. App’x 445, 450 (6th Cir. 2015) (affirming dismissal where
waiver of service was returned unexecuted on four separate occasions and nothing suggested that
the plaintiff made an effort to discover or provide additional information about the unserved
defendants; in such circumstances, “an incarcerated plaintiff may not shirk all responsibility for
seeing that the Marshals Service fulfils its duty to effectuate service.”). But Staub did, nonetheless,
receive notice that Deckard remained unserved via the return of the waiver of service for the other
defendants sans any such return for Deckard. This fact, combined with Staub’s failure to act for
six years, distinguishes Staub’s circumstances from those in Byrd. More specifically, in Byrd,
only two years passed between the plaintiff’s filing of his initial complaint and the defendant’s
motion to dismiss based on failure to effectuate service of process. Id. at 218-219. What occurred
during those two years also distinguishes Byrd. Initially, the plaintiff proceeded pro se and then
the court appointed counsel. Id. at 218. Counsel filed a first amended complaint, which was also
not served, but then served the second amended complaint. Id. at 218-19. Two months later, the
defendant moved to dismiss the complaint because the plaintiff did not effectuate service of the
original complaint within the 120-day period set forth in Rule 4. Id. at 219. And notably, when
he was pro se, Byrd did follow up with the Marshals Service on one occasion to make sure they
were effectuating service; and the Marshals assured him they were doing so. Id. at 218. Thus, the
plaintiff in Byrd undertook appreciably more efforts than Staub and much less time passed. These
factual differences, along with the passage of six years from the date of the order of service to the
order to show cause, lead us to a different conclusion on good cause than Byrd. In the particular
circumstances of this case – the passage of six years along with Staub’s failure to inquire about
service after Deckard declined to waive service, when combined with Staub’s failure to provide
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any reasonable explanation for sitting idly by for six years – supports the district court’s finding
of a lack of good cause.
This does not end the inquiry. Once the district court determines that the plaintiff has not
shown good cause, it must balance a number of factors when deciding whether to grant a
discretionary extension of time:
(1) whether an extension of time would be well beyond the timely service of process; (2) whether an extension of time would prejudice the defendant other than the inherent prejudice in having to defend the suit; (3) whether the defendant had actual notice of the lawsuit; (4) whether the court’s refusal to extend time for service substantially prejudices the plaintiff, i.e., would the plaintiff’s lawsuit be time-barred; (5) whether the plaintiff had made any good faith efforts to effect proper service of process or was diligent in correcting any deficiencies; (6) whether the plaintiff is a pro se litigant deserving of additional latitude to correct defects in service of process; and (7) whether any equitable factors exist that might be relevant to the unique circumstances of the case.
United States v. Oakland Physicians Med. Ctr., 44 F.4th 565, 569 (6th Cir. 2022).8
The district court correctly concluded that Staub had failed to fully brief and develop any
argument to support a discretionary extension of time for service of process. Staub offered little
analysis of these factors for the court’s consideration, save for pointing out that Deckard had notice
of the suit since she submitted an affidavit. Staub offers a similarly limited analysis on appeal.
His arguments remain primarily focused on whether he established good cause. He has thus
forfeited any further argument in this regard. Rop v. Fed. Hous. Fin. Agency, 50 F.4th 562, 584
n.8 (6th Cir. 2022) (explaining that the government forfeited argument by failing to raise it in the
district court and again failed to develop the argument at any length on appeal) (citing Guyan Int’l,
8 The district court referred to an earlier version of these factors (which did not include factors 6 and 7 identified above), as articulated in Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 70 (N.D. Ohio 2016). Notably, United States v. Oakland Physicians Med. Ctr. was issued after the district court’s decision regarding the dismissal of Deckard for failure to serve process.
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Inc. v. Pro. Benefits Adm’rs, Inc., 689 F.3d 793, 799 (6th Cir. 2012)). Based on the foregoing, we
find that the district court did not abuse its discretion when it dismissed Deckard for lack of service.
VII.
For these reasons, we AFFIRM the judgment of the district court.
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