Jones v. United States et al

Filing 28

Opinion and Order. The Court GRANTS Defendants' Motion (#[24-1]) for Summary Judgment, GRANTS Defendants' Motion (#[24-2]) to Dismiss under Fed. R. Civ. P. 12(b), and DISMISSES this matter without prejudice. IT IS SO ORDERED. Signed on 1/10/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRUCE M. JONES, II,
Plaintiff,
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.

LEONARD RANDOLPH BERMAN
4711 S.W. Huber Street
Suite E-3
Portland, OR 97219
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
SEAN E. MARTIN
Assistant United States Attorney
1000 S.W. Third Avenue
Suite 600
Portland, OR 97204
[phone]
Attorneys for Defendants

1 - OPINION AND ORDER

3:16-cv-02330-BR
OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendants’ Motion
(#24-1) for Summary Judgment and to Dismiss (#24-2) under Fed. R.
Civ. P. 12(b).

For the reasons that follow, the Court GRANTS

Defendants’ Motions.

BACKGROUND
Plaintiff Bruce M. Jones, II, an inmate at Federal
Correctional Institution Sheridan (FCI Sheridan) during the
relevant period, brings this civil-rights action pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971).

In his Second Amended Complaint Plaintiff asserts claims

against Defendants for violation of Plaintiff’s right under the
Eighth Amendment to the United States Constitution to be free
from cruel and unusual punishment related to his health and
safety and for allegedly failing to provide him with adequate
medical care.

Plaintiff also asserts claims against Defendants

pursuant to the Federal Tort Claims Act for negligence and
failure to provide adequate medical care.
Plaintiff alleges another inmate hit him in the back of the
head with a hammer on June 25, 2015, while both Plaintiff and the
other inmate were at their work assignments at FCI Sheridan.
Plaintiff alleges Defendants failed to protect him from the
attack and failed to provide him with adequate medical care after
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the attack.
On November 6, 2017, Defendants filed a Motion for Summary
Judgment and to Dismiss all of Plaintiff’s claims.
On November 20, 2017, Plaintiff filed a document titled
Response in Opposition to Defendants’ Motions.

In that document

Plaintiff did not provide a substantive response to Defendants’
arguments and instead sought an extension of time to file a
response to Defendants’ Motions.

Plaintiff, however, did not

include a certification of conferral as required by Local Rule
7.1 or the position of opposing counsel.

As a result, the Court

entered an Order on December 1, 2017, striking Plaintiff’s
Response and directing Plaintiff to file a motion for extension
of time that included a Local Rule 7.1 conferral statement and
the position of opposing counsel no later than December 4, 2017.
Plaintiff did not file a motion for extension of time or any
other response to Defendants’ Motions.

The Court took this

matter under advisement on December 4, 2017.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants move for summary judgment as to Plaintiff’s First
Claim against Defendants for violation of the Eighth Amendment on
the ground that Plaintiff failed to exhaust his administrative
remedies.

3 - OPINION AND ORDER

I.

Standard
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

genuine dispute as to a material fact.
673 F.3d 1218, 1223 (9th Cir. 2012).

Emeldi v. Univ. of Or.,

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and point to "specific facts
demonstrating the existence of genuine issues for trial."

In re

Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
"This burden is not a light one. . . .

The non-moving party must

do more than show there is some 'metaphysical doubt' as to the
material facts at issue."

Id. (citation omitted).

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."
4 - OPINION AND ORDER

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
"A non-movant's bald assertions or a mere scintilla of
evidence in his favor are both insufficient to withstand summary
judgment."

F.T.C. v. Stefanchik, 559 F.3d 924, 929 (9th Cir.

2009)(citation omitted).

When the nonmoving party's claims are

factually implausible, that party must "come forward with more
persuasive evidence than otherwise would be necessary."

LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149
(9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
II.

Id.

Prison Litigation Reform Act (PLRA) Exhaustion Requirement
The PLRA, 42 U.S.C. § 1997e(a), provides “[n]o action shall

be brought with respect to prison conditions under Section 1983
of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”

The

PLRA “mandates that an inmate exhaust . . . administrative
5 - OPINION AND ORDER

remedies . . . before bringing suit to challenge prison
conditions.”

Ross v. Blake, 136 S. Ct. 1850, 1854-55

(2016)(quotation omitted).

See also Booth v. Churner, 532 U.S.

731 (2001)(same).
The exhaustion requirement applies "to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong."

Porter v. Nussle, 534 U.S. 516, 532 (2002).

The Supreme Court also made clear that the exhaustion requirement
applies to inmate civil-rights claims under Bivens.

Id. at 524.

The Supreme Court has also held courts “may not excuse a
failure to exhaust, even to take [special] circumstances into
account.”

Ross, 136 S. Ct. at 1856.

Moreover, prisoners are

obligated to navigate the prison's administrative review process
"regardless of the fit between a prisoner's prayer for relief and
the administrative remedies possible."
41.

Booth, 532 U.S. at 739-

Accordingly, the Ninth Circuit has held "plaintiffs must

pursue a remedy through a prison grievance process as long as
some action can be ordered in response to the complaint."

Brown

v. Valoff, 422 F.3d 926, 934 (9th Cir. 2005)(emphasis in
original).

Even if the relief the prisoner receives is nothing

more than "corrective action taken in response to an inmate's
grievance [that] . . . improve[s] prison administration and
satisf[ies] the inmate," it is sufficient relief for an inmate to

6 - OPINION AND ORDER

continue with the administrative process.

Id. at 936 (quoting

Porter, 534 U.S. at 525).
Exhaustion of administrative remedies under 42 U.S.C.
§ 1997e(e) is an affirmative defense.

Wyatt, 280 F.3d at 1245.

"[D]efendants have the burden of raising and proving the absence
of exhaustion."

Id. at 1120.

Relevant evidence in so demonstrating would
include . . . regulations, and other official
directives that explain the scope of the
administrative review process; documentary or
testimonial evidence from prison officials who
administer the review process; and information
provided to the prisoner concerning the operation
of the grievance procedure in this case.
Brown, 422 F.3d at 937.

As noted, if the court concludes an

inmate has failed to exhaust administrative remedies, the proper
remedy is dismissal without prejudice.

Wyatt, 315 F.3d at

1119-20.
The Ninth Circuit has made clear that a Rule 12 motion is
“not the appropriate procedural device” for pretrial
determination of whether a plaintiff has exhausted his
administrative remedies.
(9th Cir. 2014).

Albino v. Baca, 747 F.3d 1162, 1168

“[T]he appropriate device is a motion for

summary judgment under Rule 56.”

Id.

III. Federal Bureau of Prisons (BOP) Administrative Remedy
Program
The Federal BOP Administrative Remedy Program regulations
set out four levels of review for inmate grievances:
7 - OPINION AND ORDER

(1) informal resolution, (2) formal complaint (Form BP–9),
(3) formal appeal (Form BP–10), and (4) second formal appeal
(Form BP–11).

See 28 C.F.R. §§ 542.10, 542.13–542.15.

An inmate

must first seek informal resolution of his grievance with a staff
member.

28 C.F.R. § 542.13.

If the matter is not resolved an

inmate can file a Form BP–9 with the warden.

28 C.F.R. § 542.14.

The inmate has 20 days from the time the warden signs a response
to a Form BP-9 to appeal the warden’s decision by filing a Form
BP–10 with the regional director.

28 C.F.R. § 542.15(a).

If the

inmate is not satisfied with the regional director’s response,
the inmate has 30 days to submit an appeal to the General Counsel
by filing a Form BP-11.

Id.

An inmate has fully exhausted the

administrative review procedure only after completing each of
these steps.
IV.

Analysis
Paralegal Specialist Jennifer Vickers testifies in her

Declaration in support of Defendants’ Motions that she is
familiar with the Administrative Remedy Program and her job
duties include “the upkeep and maintenance of files for
administrative tort claims filed against the BOP.”
Jennifer Vickers at ¶ 1.

Decl. of

Vickers testifies she “personally

reviewed Plaintiff’s Administrative Remedy log,” and it indicates
Plaintiff failed to fully complete the grievance procedure as to
any aspect of his Eighth Amendment Claim.

8 - OPINION AND ORDER

Vickers Decl. at ¶¶ 5-

7.

Specifically, Plaintiff “never fully presented his claim

through the administrative remedy process by presenting his claim
at the institutional, regional, and central office levels of the
BOP.”

Id. at ¶ 6.

In addition, Vickers notes Plaintiff in the

past has successfully completed the administrative review process
and fully exhausted a grievance regarding an unrelated claim of
inadequate medical care.

Id. at ¶ 6.

The record, therefore,

reflects Plaintiff is aware of how to exhaust a grievance fully
and has successfully done so in the past.
Accordingly, the Court grants Defendants’ Motion for Summary
Judgment as to Plaintiff’s First Claim against Defendants for
violation of Plaintiff’s rights under the Eighth Amendment.

DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(B)(1)
Plaintiff also brings claims against Defendants pursuant to
the FTCA for negligence and medical negligence.

As noted,

Plaintiff alleges another inmate injured him when he and the
other inmate were working at FCI Sheridan, that Defendants failed
to protect Plaintiff from the attack, and that Defendants failed
to provide him with adequate medical care after the attack.
Defendants move to dismiss Plaintiff’s FTCA claims on the
ground that this Court lacks subject-matter jurisdiction because
under these circumstances the FTCA is preempted by 18 U.S.C.
§ 4126.

9 - OPINION AND ORDER

I.

Standard
Plaintiff has the burden to establish that the court has

subject-matter jurisdiction.
726, 728 (9th cir. 2009).

Robinson v. Geithner, 359 F. App'x

See also Ass'n of Am. Med. Coll. v.

United States, 217 F.3d 770 (9th Cir. 2000).
When deciding a motion to dismiss for lack of subject-matter
jurisdiction under Rule 12(b)(1), the court may consider
affidavits and other evidence supporting or attacking the
plaintiff's jurisdictional allegations.
F.3d 1108, 1114 n.1 (9th Cir. 2013).

Rivas v. Napolitano, 714

The court may permit

discovery to determine whether it has jurisdiction.

Laub v.

United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir.
2003).

When a defendant's motion to dismiss for lack of

jurisdiction "is based on written materials rather than an
evidentiary hearing, the plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the motion to
dismiss."

Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d

1218, 1223 (9th Cir. 2011)(citation omitted).
II.

Analysis
As noted, Defendants move to dismiss Plaintiff’s FTCA claims

on the ground that this Court lacks subject-matter jurisdiction
because the FTCA is preempted by 18 U.S.C. § 4126 under the
circumstances alleged in Plaintiff’s Second Amended Complaint.
“The Prison Industries Fund may be used to compensate
10 - OPINION AND ORDER

‘inmates . . . for injuries suffered in any industry or in any
work activity in connection with the maintenance or operation of
the institution in which the inmates are confined.’”

Vander v.

U.S. Dep’t of Justice, 268 F.3d 661, 663 (9th Cir. 2001) (quoting
18 U.S.C. § 4126(c)).

The Prison Industries Fund “is the sole

source of compensation for the injury; its remedy is exclusive.”
Id. (citing United States v. Demko, 385 U.S. 149, 152–53 (1966)).
In addition, the Ninth Circuit held in Vander that § 4126 is the
sole remedy for the “negligence of prison officials in supplying
medical care for the [plaintiff’s] injury . . . [because] the
regulations under § 4126(c) provide . . . ‘[c]ompensation may
. . . be paid for work-related injuries or claims alleging
improper medical treatment of a work-related injury.’”
(quoting 28 C.F.R. § 301.301(b)).

Id.

Thus, the Ninth Circuit

concluded the plaintiff could not bring “an action against the
United States under the FTCA for an injury or for negligence
. . . regarding the treatment of that injury.

The FTCA action is

barred by 18 U.S.C. § 4126(c) and the regulations thereunder.”
Id. at 664.

See also Ramiscal v. Bur. of Prisons, No. CV

14–8489–ODW (RNB), 2015 WL 4207923, at *7 (C.D. Cal. June 1,
2015)(same); 28 C.F.R. § 319 (“Inmates who are subject to the
provisions of these Inmate Accident Compensation regulations are
barred from recovery under the Federal Tort Claims Act.”).
The Court, therefore, concludes Plaintiff’s FTCA claims are

11 - OPINION AND ORDER

barred and preempted by 18 U.S.C. § 4126.

Accordingly, the Court

grants Defendants’ Motion to Dismiss Plaintiff’s Second and Third
FTCA Claims.

CONCLUSION
For these reasons, the Court GRANTS Defendants’ Motion (#241) for Summary Judgment, GRANTS Defendants’ Motion

(#24-2) to

Dismiss under Fed. R. Civ. P. 12(b), and DISMISSES this matter
without prejudice.
IT IS SO ORDERED.
DATED this 10th day of January, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

12 - OPINION AND ORDER