1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

MGD 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Edward M. Bilducia, Jr., 

Plaintiff, 

v. 

Maricopa County, et al., 

Defendants. 

 No. CV 17-04313-PHX-SPL (ESW) 

ORDER 

 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.) 

 

1

 Although the Court provided notice to Plaintiff pursuant to Rand v. Rowland, 154 

F.3d 952, 962 (9th Cir. 1998) (en banc), regarding the requirements of a response to the 

Motion (Doc. 23), Plaintiff failed to respond to the Motion for Summary Judgment 

2

 Neither party has filed objections to the R&R. Accordingly, the Court will accept 

the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts are not 

required to conduct “any review at all . . . of any issue that is not the subject of an objection” 

(emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 

banc) (“[28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 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.” 

 

magistrate judge’s findings and recommendations de novo if objection is made, but not 

otherwise” (emphasis in original)); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 

1226 (D. Ariz. 2003).
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

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. Exhaustion 

Under the Prison Litigation Reform Act, a prisoner must exhaust “available” 

administrative remedies before filing an action in federal court. See 42 U.S.C. § 1997e(a); 

Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006); Brown v. Valoff, 422 F.3d 926, 

934-35 (9th Cir. 2005). The prisoner must complete the administrative review process in 

accordance with the applicable rules. See Woodford v. Ngo, 548 U.S. 81, 92 (2006). 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Exhaustion is required for all suits about prison life, Porter v. Nussle, 534 U.S. 516, 523 

(2002), regardless of the type of relief offered through the administrative process, Booth v. 

Churner, 532 U.S. 731, 741 (2001). 

 The defendant bears the initial burden to show that there was an available 

administrative remedy and that the prisoner did not exhaust it. Albino v. Baca, 747 F.3d 

1162, 1169, 1172 (9th Cir. 2014); see Brown, 422 F.3d at 936-37 (a defendant must 

demonstrate that applicable relief remained available in the grievance process). Once that 

showing is made, the burden shifts to the prisoner, who must either demonstrate that he, in 

fact, exhausted administrative remedies or “come forward with evidence showing that there 

is something in his particular case that made the existing and generally available 

administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172. The 

ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate 

if the undisputed evidence, viewed in the light most favorable to the prisoner, shows a 

failure to exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 

 If summary judgment is denied, disputed factual questions relevant to exhaustion 

should be decided by the judge; a plaintiff is not entitled to a jury trial on the issue of 

exhaustion. Albino, 747 F.3d at 1170-71. But if a court finds that the prisoner exhausted 

administrative remedies, that administrative remedies were not available, or that the failure 

to exhaust administrative remedies should be excused, the case proceeds to the merits. Id.

at 1171. 

III. Facts

A. MCSO Grievance Procedure 

 The MSCO grievance procedure is set out in MCSO Policy DJ-3, Inmate Grievance 

Procedure, and it is also explained in the Rules and Regulations for Inmates, a copy of 

which is provided to Plaintiff at the time of his classification process on February 23, 2017. 

(Doc. 20 ¶¶ 5-7.) Aside from claims of excessive force or Prison Rape Elimination Act 

complaints, inmates must submit a grievance within 48 hours of the event being grieved, 

and the grievance must include a proposed resolution. (Id. ¶ 6.) Nothing in the Rules and 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Regulations for Inmates says an inmate cannot grieve a perceived failure to house him in 

Administrative Restrictive Housing (also known as protective custody) when he has 

requested to be housed there. (Id.) 

B. Plaintiff’s Grievances

 Plaintiff was assaulted on April 6, 2017, 42 days after he went through the 

classification intake process. (Id. ¶ 8.) 

 Plaintiff submitted grievances before and after the assault, but none of his 

grievances objected to his placement in GP rather than Administrative Restrictive Housing 

or protective custody. (Id. ¶ 9.) A grievance dated March 19, 2017 asked about access to

the day room. (Doc. 20-1 at 36.) A medical grievance dated March 18, 2017 asked for 

Plaintiff’s “back medication.” (Id. at 37.) A medical grievance dated March 29, 2017 

again related to medication for Plaintiff’s back pain. (Id. at 38.) A medical grievance dated 

April 11, 2017 states that Plaintiff was in a wheelchair because he was assaulted, but the 

doctor took his wheelchair from him; Plaintiff asked for “proper care” and help with 

walking. (Id. at 39.) A grievance dated June 1, 2017 complained that Plaintiff was allergic 

to the deodorant sold at the jail. (Id. at 41.) A grievance dated August 3, 2017 related to 

Plaintiff’s back pain and lack of a treatment plan for his pain. (Id. at 43.) 

 In his Complaint, Plaintiff checked the boxes indicating that an administrative 

remedy was available to him, that he submitted a request for administrative relief regarding 

his claim against Defendant, and that he appealed his request for administrative relief to 

the highest level. (Doc. 1 at 3, 6.) 

IV. Discussion 

Defendant presents evidence showing that administrative remedies were available 

at the jail for Plaintiff’s claim, that Plaintiff was aware of and used the grievance procedure, 

but that he did not file any grievances related to the claim underlying this lawsuit. 

Accordingly, the burden shifts to Plaintiff to either show that he exhausted the available 

remedies or that the remedy was effectively unavailable to him. Albino, 747 F.3d at 1172. 

The facts in the record do no support either finding. 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 Plaintiff did not respond to Defendant’s Motion, did not provide a separate or 

controverting statement of facts, and the scant evidence concerning exhaustion available 

in his verified Complaint fails to create a genuine issue of material fact that Plaintiff, in 

fact, exhausted his administrative remedies. Merely filling in the boxes on the form 

Complaint to indicate that he grieved his claim is insufficient. 

 Because Plaintiff has failed to rebut Defendant’s evidence that he did not exhaust 

the available administrative remedies, and has not presented competent evidence that the 

administrative remedy was unavailable to him, the Court will grant summary judgment to 

Defendant Penzone and dismiss Plaintiff’s claim against Defendant Penzone without 

prejudice. See Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir. 2005) (if a court grants 

summary judgment on non-exhaustion grounds, dismissal is without prejudice). 

IT IS ORDERED:

(1) The Magistrate Judge’s Report and Recommendation (Doc. 22) is accepted 

and adopted and Defendant Maricopa County is dismissed from this action without 

prejudice for failure to timely serve pursuant to Federal Rule of Civil Procedure 4(m). 

 (2) The reference to the Magistrate Judge is withdrawn as to Defendant 

Penzone’s Motion for Summary Judgment for Failure to Exhaust Administrative Remedies 

(Doc. 19), and the Motion is granted. 

 (3) There being no Defendants remaining, this action is terminated without 

prejudice as stated herein, and the Clerk of Court must enter judgment accordingly. 

 Dated this 29th day of November, 2018. 

Honorable Steven P. Logan 

United States District Judge