Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-18-2007
DiGiovanni v. NJ Dept Corr
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4734
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Recommended Citation
"DiGiovanni v. NJ Dept Corr" (2007). 2007 Decisions. Paper 1084.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1084
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DLD-219 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-4734
________________
MARCO VINCENT DIGIOVANNI,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS; D. DUDICH, Lieutenant; JASON
SMITH, Senior Correctional Officer; K.R. NEWSOM, Sergeant; MCEAVEY, Senior
Correctional Officer; CORRECTIONAL MEDICAL SERVICES (C.M.S.); MARY
THOMAS, Nurse Practitioner; LAYDEN, Special Investigations Division; J.W.
OSZVART, Hearing Officer; ROY L. HENDRICKS, Administrator; HUGH
DOWNING; JAMES BARBO, Director/Division of Operations; DEVON BROWN,
Commissioner; and JOHN & JANE DOES 1-100
________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 04-cv-02060)
District Judge: Honorable Joel A. Pisano
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
May 3, 2007
BEFORE: BARRY, AMBRO and FISHER, Circuit Judges
(Filed: May 18, 2007)
________________
OPINION
________________
PER CURIAM
Marco Vincent DiGiovanni appeals from the District Court’s grant of summary
judgment in favor of Appellees. Because we determine that the appeal is lacking in
arguable legal merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).
On May 3, 2004, while incarcerated at New Jersey State Prison, DiGiovanni filed a
complaint in the District Court pursuant to 42 U.S.C. § 1983. The defendants are
Lieutenant Donald Dudich, Sergeant Kevin Newsom, and Senior Corrections Officers
Jason Smith and McEavey; all other claims and defendants were dismissed from the
action by an earlier District Court order. DiGiovanni alleges that on or about May 2,
2002, the Appellees acting in concert assaulted him in retaliation for filing a grievance
against a corrections officer. (Compl. at 5-7.) He seeks an order preventing the prison
from transferring him except upon his request, and awarding, inter alia, punitive and
compensatory relief for injuries to his person and property.
Appellees’ answer, filed on May 2, 2005, asserted DiGiovanni’s failure to exhaust
administrative remedies as an affirmative defense. (Ans. at 7.) On August 30, 2006, the
District Court granted summary judgment for the Appellees, dismissed the matter without
prejudice, and closed the case.1 DiGiovanni filed a timely notice of appeal.
Our review of the record makes clear that DiGiovanni’s appeal lacks any arguable
basis in law. “No action shall be brought with respect to prison conditions . . . by a
prisoner confined in any . . . prison . . . until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). This rule means that “prisoners seeking relief in
1
Although the District Court properly dismissed this matter without prejudice, the
orders appealed from are final for purposes of our exercise of jurisdiction under 28 U.S.C.
§ 1291. See Nyhuis v. Reno, 204 F.3d 65, 68 n.2 (3d Cir. 2000). Our review is plenary.
See Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004).
2
federal court must first exhaust the administrative remedies available at the prison level,”
Williams v. Beard, – F.3d –, 2007 WL 973953, *2 (3d Cir. Apr. 3, 2007)(citing
Woodford v. Ngo, 126 S. Ct. 2378, 2382-83 (2006)); see also Spruill v. Gillis, 372 F.3d
218, 227 (3d Cir. 2004)(prisoner must exhaust grievance process “before coming to
federal court”), including the remedies supplied in the New Jersey Department of
Corrections Inmate Handbook. Concepcion v. Morton, 306 F.3d 1347, 1355 (3d Cir.
2002). The procedure called for by the Inmate Handbook requires the filing of a remedy
form and, if necessary, a subsequent appeal.
When DiGiovanni filed his complaint on May 3, 2004, he had not yet begun to
pursue his administrative remedies. In concluding that DiGiovanni’s action was barred
by his failure to exhaust available remedies, the District Court noted that he did not file
his remedy form with the prison until more than two years later, on May 20, 2006. He did
not complete the grievance process until approximately June 26, 2006. Because he had
not exhausted his remedies within the prison before coming to this Court, DiGiovanni
could not proceed with this action in federal court. See 42 U.S.C. § 1997e(a); Woodford,
126 S. Ct. at 2382-83.
This complaint is indisputably barred by DiGiovanni’s failure to exhaust available
administrative remedies, so we will dismiss his appeal under § 1915(e)(2). DiGiovanni’s
motion for appointment of counsel is denied.
3