Steven Staub v. Tracy Nietzel

NOT RECOMMENDED FOR PUBLICATION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.
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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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Case No. 22-5384, Staub v. Nietzel, et al.

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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Case No. 22-5384, Staub v. Nietzel, et al.

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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Case No. 22-5384, Staub v. Nietzel, et al.

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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Case No. 22-5384, Staub v. Nietzel, et al.

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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