Raymond W. Accolla v. United States Government

DLD-133 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4387
___________
RAYMOND W. ACCOLLA,
Appellant
v.
UNITED STATES GOVERNMENT;
DR. HENDERSHOT;
P.A. HUBBLE
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-00839)
District Judge: Honorable John E. Jones, III
____________________________________
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 25, 2010
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed March 8, 2010)
_________
OPINION
_________
PER CURIAM
Raymond W. Accolla sued the United States of America, Dr. Hendershot, and P.A.

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The Magistrate Judge, screening the complaint pursuant to 28 U.S.C. § 1915A,
recommended the dismissal of Accolla’s claims against the rest of the defendants.
Accolla initially filed objections to the Magistrate Judge’s report and recommendation
(although he focused his arguments on the exhaustion of his administrative remedies), but
then he filed a notice of voluntary dismissal of all the defendants but the United States,
Hendershot, and Hubble. The District Court acknowledged the notice of dismissal and
Accolla’s subsequent efforts to proceed only against the three named defendants and
treated the objections as withdrawn in adopting the report and recommendation. As it
appears that Accolla pursued his claims only against three defendants, claims related to
the other defendants will not be considered.
2
Hubble, among other defendants.1 His claims under Bivens v. Six Unknown Agents of
the FBI, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”) related to how
he was treated for medical conditions at FCI–Schuylkill.
The three defendants filed a motion to dismiss or, in the alternative, a motion for
summary judgment. They argued that the Eighth Amendment claims against Hendershot
and Hubble should be dismissed because of Accolla’s failure to exhaust his administrative
remedies. In the alternative, they contended that the claims should be dismissed because
Hendershot and Hubble were not deliberately indifferent to a serious medical need. Also,
they argued that the FTCA claim should be dismissed because 1) Accolla failed to
exhaust the administrative tort process when he filed his complaint before receiving
notice of final agency action, 2) Accolla did not include a certificate of merit, or 3)
Accolla failed to state a prima facie claim of negligence. With their motion, they filed a
statement of facts comprising 610 paragraphs, a declaration from Hubble, Accolla’s
medical records, and evidence related to Accolla’s efforts to exhaust his administrative
remedies.

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Accolla filed a motion to compel the production of his medical records; a motion
(that included exhibits) requesting a decision on the issue of exhaustion of his
administrative remedies; a supplemental filing relating to exhaustion of administrative
remedies; a response to the summary judgment motion (without exhibits); a general
denial of the defendants’ statement of facts; and more motions to compel discovery, one
of which included additional exhibits relating to the exhaustion issue. The defendants
sought a protective order staying all discovery requests until the resolution of their
potentially case-dispositive motion.
The District Court, adopting the report and recommendation of the Magistrate
Judge and overruling Accolla’s objections, deemed all of the defendants’ statements of
facts admitted – because Accolla did not respond to them one-by-one in compliance with
a local rule – and granted the defendants’ motion. In relation to the claims against
Hendershot and Hubble, the District Court concluded that Accolla did not exhaust his
administrative remedies because he did not file his administrative remedy requests at the
institutional level. In relation to the FTCA claim, the District Court determined that
Accolla did not exhaust his administrative remedies because he filed his complaint
prematurely (before the time for an agency ruling on his administrative claim expired).
The District Court additionally concurred with the defendants that Accolla needed to, but
did not, include a certificate of merit for his claim as Pennsylvania law requires for
medical negligence claims. The District Court denied all pending motions as moot.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the order

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2
We do not consider, or express any opinion on, the alternative basis for the District
Court’s decision related to the FTCA claim.
4
granting summary judgment is plenary. See Abramson v. William Paterson College, 260
F.3d 265, 276 (3d Cir. 2001). We consider the orders relating to the discovery motions
for abuse of discretion. See United States v. Al Hedaithy, 392 F.3d 580, 605 (3d Cir.
2004). On review, we will affirm the District Court’s decision because no substantial
issue is presented on appeal. See L.A.R. 27.4; I.O.P. 10.6.
The District Court properly dismissed Accolla’s FTCA claim. A plaintiff cannot
institute an FTCA suit until he or she presents the claim to a federal agency and receives a
final decision on the claim. See 28 U.S.C. § 2675(a); see McNeil v. United States, 508
U.S. 106, 112 (1993). If the agency does not act within six months, the failure to issue a
decision may be treated as a final decision by the claimant. See id. The FTCA
exhaustion requirement “is jurisdictional and cannot be waived.” Rosario v. American
Export-Isbrandtsen Lines, Inc., 531 F.2d 1227, 1231 (3d Cir. 1976).
In this case, it is undisputed that Accolla initially filed his administrative tort claim
on November 27, 2007, and that he filed a supplement to it on February 20, 2008. The
supplement, treated as an amendment, reset the clock. See 28 C.F.R. 14.2(c). The agency
ruled within six months of the initial filing, namely, on May 22, 2008. However, because
Accolla filed his FTCA action in federal court before that date and before the expiration
of the appropriate six month period, the District Court was without jurisdiction to rule on
the FTCA claim.2 See McNeil, 508 U.S. at 111-12 (holding that a court is without

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jurisdiction to rule on a prematurely filed action even if an agency denies the related
administrative claim soon after the federal lawsuit is filed).
The District Court also properly granted summary judgment in favor of the
defendants on the remaining claims under Bivens. To bring a suit challenging prison
conditions, a prisoner must first properly exhaust available administrative remedies.
See 42 U.S.C. § 1997e; Woodford v. Ngo, 548 U.S. 81,85 (2006) (holding that exhaustion
is mandatory); see Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004) (explaining that the
exhaustion requirement includes a procedural default component). The burden is on the
defendants to prove failure to exhaust. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.
2002).
As the District Court noted, the defendants put forth evidence that Accolla did not
exhaust his administrative remedies because, although he filed four administrative remedy
requests, he did not follow BOP procedures in filing them. More specifically, he filed
three administrative remedy requests with the regional office before filing a complaint at
the institutional level, and he filed one complaint with the central office without having
sought an administrative remedy with his warden or reconsideration of his administrative
tort claim. The District Court concluded that the defendants’ statement of facts, based on
the evidence, was uncontested because Accolla did not respond to each statement
individually. Accolla’s response was not sufficiently specific.
We note additionally that Accolla did not otherwise controvert the relevant
statements of facts or evidence of his failure to exhaust despite his repeated arguments

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(from the initiation of his complaint through his motion and other filings relating to
exhaustion) that he exhausted his available administrative remedies. Although Accolla
argued that his prison counselor thwarted his efforts by failing or refusing to issue him an
administrative remedy form, he conceded, in his filings to the BOP and in the District
Court, that he did not undertake a predicate step in the grievance process that would have
entitled him to that form. His admitted excuse for not taking the early and necessary step
in each attempt was his belief that it would be futile. However, there is no futility
exception to the exhaustion requirement. See Booth v. Churner, 532 U.S. 731, 741 n.6
(2001). In short, he did not follow the proper and available procedures to exhaust his
claims against Hendershot and Hubble. Accordingly, the District Court properly granted
judgment in favor of the defendants.
Because the District Court properly granted the defendants’ case-dispositive
motion, the District Court did not abuse its discretion in denying the remaining motions as
moot. We will affirm the District Court’s judgment.

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