BLD-033                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                            Nos. 13-2485 & 13-2486
                                 ___________

                        SHAWN RICHARD COUDRIET,
                                             Appellant

                                        v.

   ANTHONY J. VARDARO, Judge; BRIAN V. COLEMAN, Warden; GARY M.
ALIZZEO, Attorney; JOHN RICTOR, Chief of Police; PAULA DIGIACOMO, A.D.A.;
FRANCIS J. SCHULTZ, D.A.; SUSAN BERRIER, R.N.; MATTHEW LEWICKI, R.N.;
  MARK A. CASTEEL, M.D.; MICHAEL J. HERBIK, D.O.; TIM LEWIS, Warden;
   TRACE MCCRAKEN, Bail Bond Agent; MICHAEL ROSSI, Magistrate Judge;
JAMIEE L. GASTER, Counselor; DEBRA HUSARCHIK, P.S.S.; GARY GALLUCCI,
                Psychologist; PETER SAAVEDRA, Psychiatrist
                    __________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          (D.C. Civil No. 1:11-cv-00185)
                  District Judge: Honorable Sean J. McLaughlin
                  ____________________________________

      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
                                November 7, 2013
         Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                       (Opinion filed: November 18, 2013 )
                                    _________

                                   OPINION
                                   _________
PER CURIAM


       Pro se Appellant Shawn Coudriet appeals the District Court’s orders granting

Defendants’ motions to dismiss. For the reasons set forth below, we will summarily

affirm the District Court’s judgments. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             I.

       Coudriet is an inmate presently incarcerated at the Pennsylvania State Correctional

Institution at Fayette (“SCI-Fayette”). He filed a civil rights action under 42 U.S.C. §

1983 in the District Court against seventeen defendants, arising from his 2005 arrest and

subsequent conviction in the Court of Common Pleas of Crawford County, Pennsylvania.

Coudriet brought claims against numerous officials involved in his arrest, conviction, and

incarceration, alleging that he is innocent of the crimes and, therefore, the defendants

violated his constitutional rights by conspiring to unlawfully convict and imprison him.

He also brought claims against various medical professionals, claiming that they were

deliberately indifferent to his medical needs. The Defendants filed motions to dismiss,

which the District Court granted. See Orders, ECF Nos. 160, 161, 183, 184, 185, 186.

This appeal followed.1

                                             II.



1
  Coudriet’s appeals from the orders entered April 10, 2013, are pending at C.A. No. 13-
2485, and his appeal from the order entered April 17, 2013, is pending at C.A. No. 13-
2486. Additionally, because the District Court has now entered a final order, we have
jurisdiction to review the District Court’s November 30, 2012 orders, which Coudriet
                                             2
       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s dismissal order. See Allah v. Seiverling, 229 F.3d 220, 223 (3d

Cir. 2000). To survive dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court affirms a district

court’s dismissal for failure to state a claim “only if, accepting all factual allegations as

true and construing the complaint in the light most favorable to the plaintiff, we

determine that the plaintiff is not entitled to relief under any reasonable reading of the

complaint.” McGovern v. City of Phila., 554 F.3d 114, 115 (3d Cir. 2009). We may

summarily affirm if the appeal does not present a substantial question, and may do so on

any basis supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011)

(per curiam).

                                              III.

       Coudriet’s constitutional claims are broad in scope, beginning with the legal

processes which led to his conviction, and detailing incidents that have occurred since he

was incarcerated. At the outset, we note that the applicable statute of limitations for

Coudriet’s § 1983 claims is two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir.




prematurely appealed before a final order had been entered. See C.A. Nos. 12-4515 and
12-4516.
                                               3
2009). In this instance, Coudriet filed his complaint on August 26, 2011.2 Thus, barring

any exceptions or tolling provision, claims that accrued prior to August 26, 2009, are

time-barred. Specifically, Coudriet claims that John Rictor, Chief of Police of Vernon

Township, unlawfully arrested him at his home without a valid warrant and falsified the

affidavit of probable cause. We agree with the District Court’s construction of Coudriet’s

complaint that his claims against Rictor are based upon illegal search and seizure, false

arrest/imprisonment and selective enforcement. These claims accrued in March and

April 2005, when Coudriet’s DNA was seized and he was arrested and charged. Thus,

they are barred by the statute of limitations. See, e.g., Montgomery v. De Simone, 159

F.3d 120, 126 (3d Cir. 1998) (false arrest and false imprisonment claims accrued on the

night of the arrest); Dique v. N.J. State Police, 603 F.3d 181, 188 (3d Cir. 2010)

(selective enforcement claim accrued when he was stopped by police officers for alleged

traffic violation and arrested for suspected drug possession.). Coudriet’s allegations that

Warden Tim Lewis facilitated an assault against him by another inmate when he was first

committed to the Crawford County Jail in May 2005 are also time-barred.3



2
  Coudriet’s complaint was docketed by the court on September 1, 2011. However,
because Coudriet is a prisoner, he receives the benefit of the “prison mailbox rule.” See
Houston v. Lack, 487 U.S. 266, 276 (1988). There is no evidence of when Coudriet gave
his complaint to prison officials for mailing, or a post-marked date. Accordingly, we use
the date he signed his complaint, August 26, 2011.
3
  Additionally, Coudriet agrees that the statute of limitations bars his claims against Gary
Galluci and Debra Husarchik, mental health professionals at SCI-Fayette, asserting that
they induced him to participate in a sexual offenders program that he was not legally
required to attend.
                                             4
       In addition to asserting time-barred claims, Coudriet brought claims against

defendants who are not state actors under § 1983, or who are immune from suit. In

particular, Coudriet’s claims against Gary Alizzeo, his court-appointed attorney, fail

under § 1983 because he is not a state actor. See Polk Cnty. v. Dodson, 454 U.S. 312,

318 (1981) (a court-appointed defense attorney is not a state actor for purposes of a §

1983 action simply “by virtue of being an officer of the court . . . ”). Moreover, Francis

Schultz, the District Attorney of Crawford County, and Paula DiGiacomo, an Assistant

District Attorney, are entitled to prosecutorial immunity. See Imbler v. Pachtman, 424

U.S. 409, 430 (1976) (state prosecuting attorney who acted within scope of his duties in

initiating and pursuing criminal prosecution and in presenting state's case was immune

from civil suit for damages for alleged deprivations of constitutional rights). 4 Similarly,

Magistrate Judge Michael Rossi and Judge Anthony Vardaro of the Crawford County

Court of Common Pleas are entitled to judicial immunity. See Azubuko v. Royal, 443

F.3d 302, 303 (3d Cir. 2006) (“A judicial officer in the performance of his duties has

absolute immunity from suit and will not be liable for his judicial acts.”) (citing Mireles

v. Waco, 502 U.S. 9, 12(1991)).5 Finally, given the Judges’ judicial immunity, it follows


4
  Coudriet claims that Schultz and DiGiacomo prosecuted him without probable cause,
relied upon an invalid search warrant to collect his DNA, and enticed the victim to
fabricate her testimony.
5
  Coudriet claims that Magistrate Judge Rossi’s actions were illegal and unjust during his
arraignment, bail hearing, and preliminary hearing, and he claims that Judge Vardaro was
biased in presiding over his criminal case and subsequent PCRA hearing. There are no
allegations that the judges acted outside of their judicial capacity or in the absence of
jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (a judge is immune
                                              5
that Warden Lewis and Superintendent Brian Coleman are entitled to quasi-judicial

immunity for Coudriet’s claims that he was illegally detained at SCI-Fayette pursuant to

fraudulent Court Orders. See Hamilton v. Leavy, 322 F.3d 776, 782-83 (3d Cir. 2003) (it

is well-settled that “action taken pursuant to a facially valid court order receives absolute

immunity from § 1983 lawsuits for damages.”); see also Patterson v. Von Riesen, 999

F.2d 1235, 1241 (8th Cir. 1993) (“a warden is absolutely immune from damages flowing

from the fact of a prisoner's incarceration, when that incarceration occurs pursuant to a

facially valid order of confinement.”).6

       Turning to Coudriet’s Eighth Amendment claims of deliberate indifference to his

medical needs, Coudriet claims that while he was at Crawford County Correctional

Facility for a PCRA hearing, a fellow inmate poisoned him with acid-laced vanilla cake,

and he was subsequently diagnosed with an impacted bowel. He was treated at

Meadville Medical Center. Coudriet claims that he was misdiagnosed and that he should

have undergone a CT scan, colonoscopy, and surgery. When he returned to SCI-Fayette,

he was prescribed medication, but he was not given an x-ray, which Coudriet claims

would have shown that he needed surgery. In the context of Eighth Amendment claims

based on medical care, a plaintiff must demonstrate deliberate indifference to a serious



from liability for all actions taken in his or her judicial capacity, unless such action is
taken in the absence of all jurisdiction).
6
  Alternatively, Coudreit’s claims against Lewis and Coleman for illegal detention are
barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994) (civil action that would impugn a
criminal conviction if successful cannot be maintained until that conviction is
invalidated).
                                              6
medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A plaintiff may make a

showing of deliberate indifference by establishing that the defendants “intentionally

den[ied] or delay[ed] medical care.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).

However, “[w]here a prisoner has received some medical attention and the dispute is over

the adequacy of the treatment, federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims which sound in state tort law.” U.S. ex

rel. Walker v. Fayette Cnty., Pa., 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotation

marks omitted). Claims of negligence or medical malpractice do not constitute deliberate

indifference. Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 193 (3d Cir. 2001). Here,

Coudriet’s claims demonstrate that he received medical care, but that he disagreed with

the treatment. This is insufficient for a deliberate indifference claim under the Eighth

Amendment. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (a prisoner’s

disagreement with proper medical treatment does not imply a constitutional violation). 7

       Coudriet also brought claims against Dr. Peter Saavedra, a psychiatrist, asserting

that Dr. Saavedra fraudulently diagnosed him with paranoia, confined him against his

will, and required him to take anti-psychotic medication for treatment of psychosis after

the incident with the acid-laced vanilla cake. In support of his motion to dismiss, Dr.



7
  To the extent that Coudriet brought deliberate indifference claims against non-medical
officials, including Warden Lewis and Superintendent Coleman, he has failed to state a
claim. See Spruill, 372 F.3d at 236 (“[A]bsent a reason to believe (or actual knowledge)
that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-
medical prison official . . . will not be chargeable with the Eighth Amendment scienter
                                              7
Saavedra submitted Coudriet’s file from the Secretary’s Office of Inmate Grievances and

Appeals (“SOIGA”) to demonstrate that Coudriet failed to exhaust his claims against

him. The District Court converted the motion to dismiss to a motion for summary

judgment and concluded that the records showed that Coudriet failed to exhaust his

administrative remedies and that Dr. Saavedra was entitled to summary judgment. We

agree.8 Under the Prison Litigation Reform Act (“PLRA”), inmates must exhaust their

administrative remedies before filing a suit alleging specific acts of unconstitutional

conduct by prison officials. 42 U.S.C. § 1997e(a). A prisoner must exhaust these

remedies “in the literal sense”; no further avenues in the prison’s grievance process

should be available. Spruill, 372 F.3d at 232. “[I]t is the prison’s requirements, and not

the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S.

199, 218 (2007). Here, the record shows that Coudriet presented nine grievances to the

highest level of review, only two of which mentioned Dr. Saavedra. These two

grievances were dismissed at the SOIGA level for procedural default. Thus, Coudriet has

failed to exhaust his claims against Dr. Saavedra. See Spruill, 372 F.3d at 230

(recognizing a procedural default rule in the context of § 1983 claims “because such a

rule prevents an end-run around the exhaustion requirement, and thereby creates an




requirement of deliberate indifference.”); Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.
1993).
8
  We exercise plenary review over the District Court’s order granting summary judgment.
See Giles, 571 F.3d at 322.
                                              8
overwhelming incentive for a prisoner to pursue his claims to the fullest within the

administrative grievance system.”).9

                                            IV.

       For the foregoing reasons, no substantial question is presented, and we will affirm

the judgments of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.10




9
  Even if Coudriet’s claims against Dr. Saavedra were properly exhausted, his complaint
fails to state a cause of action. He brought claims against Dr. Saavedra for violations of
his Fourth, Fifth, Eighth, Ninth, Tenth, Thirteenth, and Fourteenth Amendment rights.
The only potentially cognizable claim Coudriet asserts is for violations of the Eighth
Amendment. However, as established above, a claim of misdiagnosis is insufficient to
support a constitutional violation. See Singletary, 266 F.3d at 193.
10
   To the extent that Coudriet asserted state law claims, the District Court correctly
declined to exercise supplemental jurisdiction. See United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal claims are dismissed before
trial . . . the state claims should be dismissed as well.”). Moreover, we agree that
allowing Coudriet to amend his complaint would be futile. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
                                             9
