United States District Court, D. Arizona
Edward M. Bilducia, Jr., Plaintiff,
Maricopa County, et al., Defendants.
Honorable Steven P. Logan United States District Judge
Edward M. Bilducia, Jr., who is currently confined in Arizona
State Prison Complex-Lewis, brought this civil rights action
pursuant to 42 U.S.C. § 1983 against Maricopa County and
Maricopa County Sheriff Paul Penzone. (Doc. 1.) Pending
before the Court is Defendant Penzone's Motion for
Summary Judgment for Failure to Exhaust Administrative
Remedies. (Doc. 19.) Also pending is the Magistrate
Judge's Report and Recommendation (R&R) recommending
that Defendant Maricopa County be dismissed without prejudice
for failure to timely serve pursuant to Federal Rule of Civil
Procedure 4(m). (Doc. 22.)
Court will adopt the Magistrate Judge's R&R, grant
the Motion for Summary Judgment, and dismiss this action
alleges the following in his Complaint: in February 2017,
Plaintiff was taken from a “Protective Administration
Prison” to the Maricopa County Fourth Avenue Jail for
processing. (Doc. 1 at 3.) Plaintiff informed the officer
making housing assignments that he (Plaintiff) was on the
Mexican Mafia hit list and he needed to be kept separate from
gang members. (Doc. 1 at 3.) Nevertheless, Plaintiff was
assigned to General Population (GP) with inmates affiliated
with the Mexican Mafia. (Id.) Plaintiff was
assaulted and taken to the hospital for his injuries.
alleges that Defendant Penzone is a final policymaker for the
Maricopa County Sheriff's Office (MCSO), but Penzone
failed to implement policies to secure the safety of
protective custody prisoners transported to MCSO facilities;
failed to implement policies to inform prisoners of the
dangers of being housed in GP; and failed to implement
policies to protect inmates at risk from individuals in GP.
(Id. at 4.) Plaintiff further alleges that Defendant
Maricopa County failed to override Penzone's policies to
ensure the safety of inmates. (Id.)
screening under 28 U.S.C. § 1915A(a), the Court
determined that Plaintiff stated a threat-to-safety claim and
directed Defendants Penzone and Maricopa County to answer.
Penzone now moves for summary judgment based on failure to
exhaust administrative remedies.
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if
the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 250 (1986);
see Triton Energy Corp. v. Square D. Co., 68 F.3d
1216, 1221 (9th Cir. 1995). The nonmovant need not establish
a material issue of fact conclusively in its favor, First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968); however, it must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P.
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3).