Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-23-2009
Robert Barger Jr. v. John Walton
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3459
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"Robert Barger Jr. v. John Walton" (2009). 2009 Decisions. Paper 1710.
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ALD-107 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3459
___________
ROBERT BARGER, JR.,
Appellant
v.
JOHN WALTON, WARDEN; NAPH-CARE INC.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 06-01620)
District Judge: Honorable David S. Cercone
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 20, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(filed: March 23, 2009)
_________
OPINION
_________
PER CURIAM
Robert Karl Barger, Jr. appeals from the District Court’s dismissal of his civil
rights complaint for failure to exhaust administrative remedies pursuant to 42 U.S.C. §
1997e(a). The District Court also denied Barger’s motions to file an amended complaint,
for reconsideration, and to vacate. Barger filed the instant appeal on August 11, 2008.
Because the appeal is lacking in arguable legal merit, we will dismiss it under 28 U.S.C. §
1915(e)(2)(B).
In December 2006, Barger, an inmate at Westmoreland County Prison, initiated a
pro se civil rights action under 42 U.S.C. § 1983. Barger alleged that he was deprived
timely medical treatment for a sprained right ankle, a staph infection in his ears, and
hemorrhoids. In his complaint, Barger checked the “No” box when asked if he first
exhausted his claims in the state prisoner grievance procedure, stating that he “filed once
before on similar matter (medical), dismissed by Warden!” Barger named both the
warden of his prison, John Walton, and Naph-Care, Inc. as defendants in his action, and
sought both monetary and injunctive relief.
In May 2008, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6).
Barger, in turn, filed a response, admitting that he had not filed an administrative
grievance because a prison guard had allegedly threatened to put him in the “hole”
(administrative custody) if he pursued this remedy. To substantiate this claim, Barger
attached an “Inmate Request Slip” dated November 29, 2006, where he wrote that an
unnamed Sergeant intimidated him and, consequently, he “will not be filing a grievance
against jail/medical for not responding to my request for medical attention on July 12,
2006.” The form did not contain a response by prison personnel; however, Barger
attached another Inmate Request Slip that indicated that his previously filed grievances
received official responses. Barger also filed a motion to amend the complaint to include
the allegation that Defendant Naph-Care, Inc. acted under color of state law.
In June 2008, the Magistrate Judge filed an R&R recommending that Defendants’
motion to dismiss be granted and Barger’s motion to file an amended complaint be
denied. Barger filed a motion for reconsideration and two motions to vacate the
Magistrate Judge’s Report and Recommendation, in which he reaffirmed his contention
that he did not pursue an administrative grievance because he was intimidated. The
District Court dismissed Barger’s action and denied his motions to file an amended
complaint, for reconsideration, and to vacate.
We have appellate jurisdiction over this appeal under 28 U.S.C. § 1291. Our
standard of review of the District Court's dismissal under Rule 12(b)(6) is plenary.
Atkinson v. LaFayette College, 460 F.3d 447, 451 (3d Cir. 2006). Under 28 U.S.C.
§ 1915(e)(2)(B), an appeal must be dismissed if it has no arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The Prison Reform Litigation Act (PLRA) mandates that a prisoner exhaust any
available administrative remedies before bringing a § 1983 suit in federal court. See 42
U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). An inmate must
exhaust his administrative remedies irrespective of the forms of relief sought and offered
through administrative avenues. Booth v. Churner, 532 U.S. 731, 741 n.6 (2001).
Barger admitted when he filed his complaint on December 6, 2006 that he had not
filed an administrative grievance. He justified this omission by citing the dismissal of a
previously filed administrative grievance that also challenged the prison’s medical care.
However, futility is not an exception to the mandatory requirement of exhaustion. Nyhuis
v. Reno, 204 F.3d 65, 71-72 (3d Cir. 2000).
Barger also argues that his failure to exhaust should be excused because he was
threatened with retaliation. We have never addressed in a precedential opinion whether
threats of retaliation excuse exhaustion. Assuming arguendo that they do, we agree with
the District Court that Barger has not made a sufficient showing of intimidation. As the
District Court noted, the evidence Barger provided is also inconsistent with his main
allegation. Barger’s contention that he was too intimidated to file an administrative
grievance conflicts with his submission of an “Inmate Request Form” directly to the
Warden in which he documents this threat. Furthermore, Barger was evidently not
deterred from filing the instant lawsuit regarding his medical treatment.
Failure to properly exhaust is sufficient to warrant dismissal of a § 1983 action,
and, therefore, we need not address whether the District Court properly denied Barger’s
remaining motions. Because Barger’s appeal is lacking in arguable legal merit, we will
dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). The motions for appointment of
counsel are denied.