NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-3495
__________
ALIREZA BAKHTIARI,
Appellant
v.
SPAULDING; REEDY; HAUSE; GALLOZA; MARTIN; MAIZE; FELTON;
SLUKOM; BITTENBENDER; LOZANO; LIEUTENANT JOHN DOE 1;
LIEUTENANT JOHN DOE 2; LIEUTENANT JOHN DOE 3;
MICHAEL TAFLESKI; UNITED STATES OF AMERICA; BREWAGNER;
TRITHOL, Defendant in Individual Capacity Only
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-17-cv-00016)
District Judge: Honorable Yvette Kane
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 13, 2019
Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges
(Opinion filed: July 2, 2019)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se Appellant Alireza Bakhtiari appeals from the District Court’s order granting
the defendants’ motion to dismiss and for summary judgment. For the reasons discussed
below, we will affirm.
I.
Because we write primarily for the parties, we will recite only the facts necessary
for our discussion. Bakhtiari filed a complaint in the District Court in January 2017,
alleging that he suffered physical and psychological abuse while incarcerated at FCI
Allenwood in 2015 and 2016. Among other claims against various defendants, Bakhtiari
brought Federal Tort Claims Act (FTCA) claims against the United States. See 28 U.S.C.
§§ 1346, 2671–80. In June 2017, the District Court dismissed many of Bakhtiari’s
claims 1 and granted him leave to file an amended complaint.
In August 2017, Bakhtiari filed an amended complaint which raised FTCA claims
against the United States for intentional infliction of emotional distress, conspiracy,
assault, battery, and negligence. The amended complaint also raised Bivens claims that
Bakhtiari’s First, Fifth, and Eighth Amendment rights were violated by the individual
defendants. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).
The defendants filed a motion to dismiss and for summary judgment, arguing that the
District Court lacked jurisdiction over the FTCA claims because Bakhtiari filed his
1
We do not address these dismissed claims further, as Bakhtiari does not challenge the
District Court’s June 2017 dismissal order. United States v. Pelullo, 399 F.3d 197, 222
(3d Cir. 2005) (appellant’s “failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal”). Similarly, because Bakhtiari has raised no
argument regarding his claims under 42 U.S.C. §§ 1985 and 1986, we do not address the
District Court’s rulings on those claims.
2
complaint before the Bureau of Prisons (BOP) had denied the claims in writing. With
respect to the Bivens claims, the defendants argued that Bakhtiari failed to exhaust
available administrative remedies in accordance with the Prison Litigation Reform Act
(PLRA), see 42 U.S.C. § 1997e(a). Before ruling on the defendants’ motion, the District
Court issued an order, citing Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018),
which informed the parties that the District Court would review matters outside the
pleadings, consider the PLRA exhaustion issue in the context of summary judgment, and
resolve factual disputes in its role as factfinder. The order also informed the parties that
they could submit additional materials relevant to the exhaustion issues.
After the parties responded, the District Court granted the defendants’ motion.
The District Court dismissed the FTCA claims, pursuant to Federal Rule of Civil
Procedure 12(b)(1), for lack of jurisdiction. The District Court entered a judgment as a
matter of law in favor of the defendants on the remaining claims, determining that
Bakhtiari failed to exhaust available administrative remedies. The District Court also
denied, as withdrawn, Bakhtiari’s pending motion to disqualify the defendants’ counsel
based on counsel’s alleged presentation of false evidence. This appeal ensued.
II.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s grant of the motion to dismiss for lack of jurisdiction. See Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). “We review the
determination of a failure to exhaust de novo,” but we will “accept the [District] Court’s
factual conclusions unless clearly erroneous.” Small v. Camden County, 728 F.3d 265,
3
268 (3d Cir. 2013). We review the District Court’s denial of the motion to disqualify
counsel for abuse of discretion, but “to the extent that the questions underlying the
disqualification motion are purely legal . . . our review is plenary.” Lazy Oil Co. v.
Witco Corp., 166 F.3d 581, 588 (3d Cir. 1999) (citation omitted). We may affirm on any
basis supported by the record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)
(per curiam) (citation omitted).
III.
We agree with the District Court’s determination that it lacked jurisdiction over
Bakhtiari’s FTCA claims. An FTCA action may not be instituted against the United
States “unless the claimant shall have first presented the claim to the appropriate Federal
agency and his claim shall have been finally denied by the agency in writing and sent by
certified or registered mail.” 28 U.S.C. § 2675(a); see McNeil v. United States, 508 U.S.
106, 111 (1993). This exhaustion requirement “is jurisdictional and cannot be waived.”
Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003) (citation omitted). Here, the
undisputed facts in the record show that Bakhtiari instituted this case in January 2017,
three months before his FTCA claims were finally denied by the BOP in writing on April
18, 2017. 2 Thus, the District Court lacked jurisdiction over Bakhtiari’s FTCA claims.
See McNeil, 508 U.S. at 111–13.
2
As the United States raised a factual challenge to the District Court’s jurisdiction, the
District Court properly considered evidence outside the pleadings. See Gould Elecs., 220
F.3d at 176–77. In particular, we note that the United States supported its motion to
dismiss with a copy of the BOP’s April 18, 2017 denial letter. Bakhtiari’s unsupported
assertion—that the BOP informed him by telephone that it had denied his claims in
December 2016—was insufficient to create a genuine dispute of material fact regarding
4
With respect to Bakhtiari’s Bivens claims, the District Court properly granted
judgment as a matter of law in favor of the defendants because Bakhtiari failed to exhaust
available administrative remedies. The PLRA requires prisoners to exhaust available
administrative remedies before bringing a suit alleging unconstitutional conduct by prison
officials. 42 U.S.C. § 1997e(a); see Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000)
(noting that § 1997e(a) “applies equally to § 1983 actions and to Bivens actions”)
(citation omitted). As “proper exhaustion of administrative remedies is necessary” to
fulfill the PLRA’s exhaustion requirement, an untimely or otherwise procedurally
defective administrative grievance or appeal does not satisfy the exhaustion requirement.
Woodford v. Ngo, 548 U.S. 81, 84 (2006); see also Spruill v. Gillis, 372 F.3d 218, 230
(3d Cir. 2004). However, the PLRA requires exhaustion of only those remedies that are
“available,” and an administrative remedy, although officially on the books, may not be
available in some circumstances, including when “prison administrators thwart inmates
from taking advantage of a grievance process through machination, misrepresentation, or
intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1860 (2016); see also Rinaldi v. United
States, 904 F.3d 257, 268 (3d Cir. 2018).
Here, Bakhtiari’s Bivens claims relate to the defendants’ conduct at FCI
Allenwood between November 2015 and January 2016. The parties do not dispute that
when the claims were finally denied by the BOP. See 28 U.S.C. § 2675(a) (the claim
must “have been finally denied by the agency in writing and sent by certified or
registered mail”); cf. Gould Elecs., 220 F.3d at 177 (“if there is a dispute of a material
fact, the court must conduct a plenary trial on the contested facts prior to making a
jurisdictional determination”) (citation omitted).
5
Bakhtiari failed to file any administrative remedy requests between November 2015 and
February 2016, and that he failed to properly exhaust several administrative claims that
he filed thereafter. 3 The defendants presented evidence, including sworn declarations
from three prison officials, that Bakhtiari had access to administrative remedy forms
through various prison staff, including his assigned counselor Anthony Delmonico. In
opposing the defendants’ motion, Bakhtiari submitted unsworn declarations in which he
maintained that the defendants denied him the opportunity to submit administrative
remedy forms, or that they lost, shredded, or never delivered the forms that he submitted,
or that the defendants’ use of force and threats discouraged him from pursuing
administrative remedies.
On this record, the District Court did not clearly err in finding that Bakhtiari’s
factual claims were unsubstantiated and contradictory. The record shows that Bakhtiari
was able to submit some administrative remedy forms, which undermines his argument
that the defendants’ actions rendered those remedies unavailable. Cf. Rinaldi, 904 F.3d
at 269 (to defeat exhaustion defense based on threats, “inmate must show (1) that the
threat was sufficiently serious that it would deter a reasonable inmate of ordinary
firmness and fortitude from lodging a grievance and (2) that the threat actually did deter
this particular inmate”). 4 Therefore, we agree with the District Court’s determination that
3
To properly exhaust the BOP’s administrative remedies, an inmate must generally: (1)
attempt an informal resolution with staff at the institution; (2) file a formal complaint
with the institution; (3) file an appeal to the appropriate Regional Director; and (4) file an
appeal to the General Counsel at the Central Office. See 28 C.F.R. § 542.10–.15.
4
To the extent that Bakhtiari presented evidence that might indicate that he submitted
administrative remedies which were not in the defendants’ records, the District Court
6
the defendants did not thwart Bakhtiari from taking advantage of available administrative
remedies, and that the defendants were entitled to judgment as a matter of law on the
Bivens claims. 5
Finally, Bakhtiari’s motion to disqualify the defendants’ counsel based on
counsel’s alleged lack of candor was meritless, as the motion failed to show that any
evidence had been falsified by defense counsel. See generally United States v. Miller,
624 F.2d 1198, 1201 (3d Cir. 1980) (district courts are empowered with “inherent
authority to supervise the professional conduct of attorneys appearing before it”); see also
Republic of Philippines v. Westinghouse Elec. Corp., 43 F.3d 65, 74 (3d Cir. 1994)
(noting that “a district court must ensure that there is an adequate factual predicate for
flexing its substantial muscle under its inherent powers”).
Accordingly, we will affirm the judgment of the District Court.
correctly noted that those submissions would have been untimely because they were
submitted in March 2016 or later, more than 20 days “following the date on which the
basis for the Request occurred.” 28 C.F.R. § 542.14; see also Woodford, 548 U.S. at 90
(“Proper exhaustion demands compliance with an agency’s deadlines and other critical
procedural rules.”).
5
The District Court properly made that determination after it provided the parties with
notice that it would act as a factfinder and with an opportunity to submit additional
materials relevant to exhaustion. See Paladino, 885 F.3d at 211. Bakhtiari has not
persuaded us that the District Court abused its discretion in deciding not to hold an
evidentiary hearing, as he has not shown what the hearing would have added to the
record. See id. (“a full-scale evidentiary hearing (i.e. involving live testimony) is not
required each time that a prisoner claims that he exhausted his administrative remedies
. . . we leave that to the discretion of the district courts”).
7