Frank Dippolito v. United States, 704 F. App'x 199

Plaintiff Frank Dippolito, a federal prisoner, sued the United States, BOP, ACA, and 32 individuals (mostly FCI Fort Dix officials) under Bivens for Eighth Amendment conditions-of-confinement violations and for retaliation; he also pleaded FTCA and RICO claims.
District Court dismissed many defendants under Rule 12(b)(6) for lack of personal involvement and dismissed FTCA and RICO claims; left 10 defendants and two retaliation claims.
Defendants moved for summary judgment; the District Court granted it, concluding (1) failure to exhaust administrative remedies for the remaining Eighth Amendment claims and (2) most retaliation claims were time-barred and the surviving retaliation claims lacked causation.
Surviving (for timeliness) retaliation allegations included: March 2011 denial of a bottom-bunk request by Unit Manager Bullock and an alleged delay in providing returned mail related to a § 2241 appeal.
The Third Circuit affirmed: found non-exhaustion of Eighth Amendment claims, statute-of-limitations barred most retaliation claims, causation lacking for the bottom-bunk denial, and the mail-interference issue waived on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Dippolito exhausted BOP administrative remedies for Eighth Amendment claims	He implies exhaustion or that procedural rejections made remedies unavailable	He did not complete the BP-9→BP-10→BP-11 process for any claim; records show no final appeals	Court: No exhaustion; summary judgment proper (PLRA requires full exhaustion)
Whether retaliation claims are timely	Claims relate to a series of retaliatory acts; some within two years	Statute of limitations is two years; many incidents occurred >2 years before filing	Court: All but two retaliation claims are time-barred under New Jersey two-year limitation
Whether Bullock’s denial of bottom-bunk request was retaliatory (causation)	Dippolito: denial was retaliation for filing grievances	Bullock: denial followed a neutral policy disallowing bottom bunks for inmates with a recent misconduct; citation supported by evidence	Court: No causal link; summary judgment for defendants because the misconduct and policy provided legitimate penological reasons
Whether mail-interference claim preserved on appeal	He contends Bullock held and delayed his returned appellate brief	On appeal he failed to meaningfully contest the District Court’s ruling or identify error	Court: Issue waived for failure to meaningfully address it on appeal

Booth v. Churner, 206 F.3d 289 (3d Cir. 2000) (PLRA requires full use of available administrative remedies)
Jones v. Bock, 549 U.S. 199 (2007) (prisoners must comply with procedural requirements to exhaust)
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195 (3d Cir. 2006) (nonmoving party must produce record facts to defeat summary judgment)
Napier v. Thirty or More Unidentified Fed. Agents, Employees or Officers, 855 F.2d 1080 (3d Cir. 1988) (two-year statute of limitations for Bivens claims in New Jersey)
Sameric Corp. of Del. v. City of Phila., 142 F.3d 582 (3d Cir. 1998) (limitations period accrues when plaintiff knows of injury)
Watson v. Rozum, 834 F.3d 417 (3d Cir. 2016) (examples of evidence sufficient to show retaliatory causation)
John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070 (3d Cir. 1997) (failure to brief an argument constitutes waiver)
FDIC v. Meyer, 510 U.S. 471 (1994) (constitutional torts are not cognizable under the FTCA)
Maio v. Aetna, Inc., 221 F.3d 472 (3d Cir. 2000) (RICO requires concrete injury to business or property)