STEVEN JONES V. USA, No. 15-55267 (9th Cir. 2017)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED OCT 6 2017 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT STEVEN JONES, AKA Steven Dean Jones, Petitioner-Appellant, v. U.S. COURT OF APPEALS No. 15-55267 D.C. No. 2:11-cv-02242-DOC-SP 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