Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-3-2006
Gagliardi v. US Govt
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1288
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"Gagliardi v. US Govt" (2006). 2006 Decisions. Paper 367.
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DPS-332 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-1288
ANTHONY GAGLIARDI,
Appellant
v.
UNITED STATES GOVERNMENT; UNITED STATES MAGISTRATE ANGELL;
ASSISTANT U.S. ATTORNEY BARRY GROSS; WARDEN MOTLEY, F.D.C.
PHILADELPHIA, PA; U.S. MARSHALL SERVICES, PHILADELPHIA, PA;
DR. MASSA, HEALTH SERVICE F.D.C. PHILA, PA; AGENT MICHAEL
CARLSON, MONTGOMERY CO. PA; DR. REYNOLDS, HEALTH SERVICE
F.D.C. PHILA., PA; DR. MARTINEZ, ADMINISTRATIVE HEALTH
SERVICE F.D.C. PHILA. PA
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(Civ. No. 05-cv-00452)
District Judge: Honorable Michael M. Baylson
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)
September 8, 2006
Before: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES
(Filed October 3, 2006)
OPINION
_______________________
PER CURIAM
Anthony Gagliardi appeals pro se from an order of the District Court dismissing
his civil rights action. Gagliardi filed this action pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C.
§ 1983 in the District Court in 2005, alleging that Defendants1 denied him adequate
medical care while he was incarcerated at the Federal Detention Center (“FDC”) in
Philadelphia.2 Gagliardi’s complaint alleges that Appellees engaged in a conspiracy to
deprive him of medicines necessary to treat his many illnesses and conditions, and that
this deprivation amounted to punishment and torture which rose to the level of an Eighth
Amendment violation.
Both the federal and Commonwealth defendants filed motions to dismiss the
complaint under either Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), to which
Gagliardi responded. The District Court dismissed Gagliardi’s complaint without
prejudice for failure to exhaust administrative remedies, as required by 42 U.S.C.
§ 1997e(a). Gagliardi timely appealed.
We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the
District Court’s decision to grant Defendants’ motions to dismiss. Broselow v. Fisher,
319 F.3d 605, 607 (3d Cir. 2003). As the District Court observed, the Prison Litigation
Reform Act (“PLRA”) requires that a prisoner plaintiff filing a suit pertaining to prison
conditions under 42 U.S.C. § 1983 or other federal law must first exhaust “such
1
Federal defendants in this case are Drs. Reynolds, Martinez, and Massa, who are
employed as medical staff at the Federal Detention Center in Philadelphia (“FDC”);
Edward Motley, the former warden of the FDC; Assistant United States Attorney Barry
Gross; the U.S. Marshals Service; and M. Faith Angell, a United States Magistrate Judge.
Agent Michael Carlson, an employee of the Pennsylvania Office of the Attorney General,
is the sole Commonwealth defendant named in the complaint.
2
Gagliardi filed a separate action against Defendant Reynolds, asserting medical
malpractice claims based on the same underlying allegations. That suit, originally
docketed at Civ. No. 05-00579, was consolidated with this one by the District Court in an
order entered on February 25, 2005.
2
administrative remedies as are available.” See 42 U.S.C. § 1997e(a). See also Nyhuis v.
Reno, 204 F.3d 65, 68-69 (3d Cir. 2000). The Federal Bureau of Prisons’ (“BOP’s”)
administrative remedy process requires that if an inmate has unsuccessfully attempted to
resolve the issue or problem informally, he may submit administrative remedy requests to
the Warden, the BOP Regional Director, and then to the BOP Central Office. 28 C.F.R.
§§ 542.13 -.15. An inmate has 20 days from the date of the incident in which to submit
an Administrative Remedy Request on the appropriate form (called a “BP-9").
§ 542.14(a). Although Gagliardi asserts in his complaint that he attempted to bring his
grievances to the attention of FDC authorities in various ways (e.g., submitting daily sick
call requests, placing his complaints “in writing” in the outgoing mail, having his family
and physicians send emails to various government officials), nowhere does he state that
he submitted a BOP administrative remedy form within the appropriate time frame, and
there is no evidence in the record that he did so. Indeed, Gagliardi essentially admits as
much in his opposition to Defendants’ motions to dismiss when he argues that the BOP’s
administrative remedy process would be “primitive” when compared to the “remedy
process” that he began by instituting this suit. See Dkt. # 23 at 12.
After a careful review of the record, we agree with the District Court that Gagliardi
failed to exhaust his administrative remedies. His complaint, therefore, was properly
dismissed for failure to exhaust under § 1997e(a). As the record reveals no arguable basis
in fact or law on which to base an appeal from the District Court’s judgment, we will
dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). See Nietzke v. Williams, 490
U.S. 319, 325 (1989).
3