Steven Jones v. United States ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        OCT 6 2017
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    STEVEN JONES, AKA Steven Dean Jones,            No. 15-55267
    Petitioner-Appellant,          D.C. No. 2:11-cv-02242-DOC-SP
    v.
    MEMORANDUM*
    UNITED STATES OF AMERICA, et al.,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    David O. Carter, District Judge, Presiding
    Submitted September 26, 2017**
    Before:       SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
    Federal prisoner Steven Jones, AKA Steven Dean Jones, appeals pro se from
    the district court’s judgment in his action brought under Bivens v. Six Unknown
    Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971), and the
    Federal Tort Claims Act (“FTCA”). We have jurisdiction under 
    28 U.S.C. § 1291
    .
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    We review de novo. Albino v. Baca, 
    747 F.3d 1162
    , 1171 (9th Cir. 2014) (en
    banc) (legal rulings on exhaustion); Guatay Christian Fellowship v. County of San
    Diego, 
    670 F.3d 957
    , 970 (9th Cir. 2011) (cross-motions for summary judgment).
    We affirm in part, vacate in part, and remand.
    The district court properly granted summary judgment on Jones’s FTCA
    negligence claim against the United States because Jones failed to raise a genuine
    dispute of material fact as to whether the United States failed to exercise
    reasonable care in providing suitable quarters. See 
    18 U.S.C. § 4042
    (a)(2)
    (requiring the Bureau of Prisons to “provide suitable quarters and provide for the
    safekeeping, care, and subsistence of all [prisoners]”); United States v. Olson, 
    546 U.S. 43
    , 45-46 (2005) (liability under the FTCA is to be based on the state law
    liability of a private party); Hayes v. County of San Diego, 
    305 P.3d 252
    , 255 (Cal.
    2013) (setting forth elements of a negligence claim under California law).
    The district court properly denied Jones’s motion for partial summary
    judgment on Jones’s FTCA claims arising from his placement and retention in a
    secure housing unit because they were not included in Jones’s administrative claim
    to the Bureau of Prisons. See 
    28 U.S.C. § 2675
    (a) (a party must file an
    administrative claim before filing an action under the FTCA); Brady v. United
    2                                   15-55267
    States, 
    211 F.3d 499
    , 502 (9th Cir. 2000) (“The requirement of an administrative
    claim is jurisdictional.”).
    The district court granted defendants’ motion to dismiss for failure to
    exhaust administrative remedies Jones’s Bivens claims. However, the district court
    did not have the benefit of our recent decision in McBride v. Lopez, 
    807 F.3d 982
    (9th Cir. 2015), where we held that “the threat of retaliation for reporting an
    incident can render the prison grievance process effectively unavailable.” See 
    id. at 987
    ; see also Ross v. Blake, 
    136 S. Ct. 1850
    , 1856, 1860 (2016) (explaining that
    proper administrative exhaustion under the Prison Litigation Reform Act is
    mandatory, but may not be required when “prison administrators thwart inmates
    from taking advantage of a grievance process through machination,
    misrepresentation, or intimidation”). We vacate the judgment to the extent that it
    dismissed Jones’s Bivens claims, and remand for further proceedings on these
    claims.
    We do not consider matters not specifically and distinctly raised and argued
    in the opening brief. See Padgett v. Wright, 
    587 F.3d 983
    , 985 n.2 (9th Cir. 2009).
    The parties shall bear their own costs on appeal.
    AFFIRMED in part, VACATED in part, and REMANDED.
    3                                       15-55267
    

Document Info

Docket Number: 15-55267

Judges: Silverman, Tallman, Smith

Filed Date: 10/6/2017

Precedential Status: Non-Precedential

Modified Date: 10/19/2024