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Precedential or Non-Precedential: Non-Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"DiGiovanni v. NJ Dept Corr" (2007). 2007 Decisions. Paper 1084.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1084


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-219                                           NOT PRECEDENTIAL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, 

, 68 n.2 (3d Cir. 2000). Our review is plenary.
See Spruill v. Gillis, 

, 226 (3d Cir. 2004).

                                               2
federal court must first exhaust the administrative remedies available at the prison level,”

Williams v. Beard, – F.3d –, 

, *2 (3d Cir. Apr. 3, 2007)(citing

Woodford v. Ngo, 

, 2382-83 (2006)); see also Spruill v. Gillis, 

, 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, 

, 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); 

.

       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