Steven Jones v. United States

NOT FOR PUBLICATION FILED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.

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