                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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DPS-332                                                 NOT PRECEDENTIAL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).


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