Bilducia v. Maricopa, County

          ORDER

          Honorable Steven P. Logan United States District Judge

         Plaintiff 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.^[1] (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).^[2] (Doc. 22.)

         The Court will adopt the Magistrate Judge's R&R, grant the Motion for Summary Judgment, and dismiss this action without prejudice.

         I. Background

         Plaintiff 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. (Id.)

         Plaintiff 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.)

         On 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. (Doc. 7.)

         Defendant Penzone now moves for summary judgment based on failure to exhaust administrative remedies.

         II. Legal Standards

         A. Summary Judgment

         A court 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.

         If the 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. 56(c)(1).

         At 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).

         B. ...