Jory Strizich v. Mike Batista;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORY STRIZICH,
Plaintiff-Appellant,
v.
MIKE BATISTA; et al.,
Defendants-Appellees.
No. 18-36008
D.C. No. 6:16-cv-00012-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted February 16, 2022
San Francisco, California
Before: GOULD and RAWLINSON, Circuit Judges, and ZIPPS,*** District Judge.
Jory Strizich appeals the district court’s dismissal of the claims he brought
against several Montana State Prison (“MSP”) officials pursuant to 42 U.S.C. §
1983. Strizich alleged that MSP officials violated his Eighth Amendment rights
while he was an inmate by failing to protect him from assaults by rival gang
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
*** The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
FILED
MAR 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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members in 2013 and 2015, as well as by maintaining a policy and practice of
housing rival gang members together despite the known risk of violence. A
magistrate judge screened Strizich’s complaint pursuant to 28 U.S.C. § 1915A
because Strizich is a prisoner and seeks redress from government officials. The
magistrate judge recommended granting in part Defendants’ motion to dismiss for
failure to state a claim but recommended denying it in part with respect to the
failure to protect claim against Defendants Hess, Reich, and Napier regarding the
2013 assault. The district court adopted these recommendations.
Hess, Reich, and Napier later moved for summary judgment on the
remaining claim, arguing that Strizich did not exhaust his administrative remedies.
The Prison Litigation Reform Act (“PLRA”) requires that prisoners must exhaust
all available administrative remedies. 42 U.S.C. § 1997e(a). The magistrate judge
recommended granting summary judgment to the Defendants on this claim, finding
that Strizich did not grieve the 2013 assault and, as a result, the claim did not meet
the PLRA’s exhaustion requirement. The district court adopted the magistrate’s
recommendations and granted summary judgment for Defendants on Strizich’s
failure to protect claim arising from the 2013 assault.
We review de novo the district court’s ruling on whether the PLRA’s
exhaustion requirement has been met. Albino v. Baca, 747 F.3d 1162, 1171 (9th
Cir. 2014) (en banc). We also review de novo the district court’s dismissal for

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failure to state a claim under the screening provisions of 28 U.S.C. § 1915A.
Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). We affirm the
district court’s rulings.
1. The district court did not err in granting the motion to dismiss Strizich’s
Eighth Amendment claims with respect to (1) MSP’s policy or practice of housing
rival gang members together, or (2) the failure of MSP officials to protect Strizich
from the 2015 assault. To prevail on an Eighth Amendment claim, Strizich must
show that the prison officials acted with “deliberate indifference” to a “substantial
risk of serious harm to an inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Deliberate indifference has an objective component (that prison conditions posed
an objective risk of serious harm) and a subjective component (that the officials
were “aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists” and drew the inference). Labatad v. Corr. Corp. of
Am., 714 F.3d 1155, 1160 (9th Cir. 2013) (quoting Farmer, 511 U.S. at 837).
Regarding the housing claim, even assuming that housing rival gang
members together leads to an objective risk of serious harm, a prison official is
liable only if the official disregards such a risk by “failing to take reasonable
measures.” Farmer, 511 U.S. at 847. The evidence shows MSP officials took
reasonable measures to abate the risk of violence from its housing policy. Officials
screened inmates for gang affiliations, assigned gang members to a more restrictive

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custody level, increased the presence of officers at times when gang-related
incidents were suspected to occur, and segregated housing units dominated by rival
gangs for mass movements. Strizich did not allege sufficient facts suggesting that
MSP’s housing policy or practice was a result of “deliberate indifference” to
inmate safety. Farmer, 511 U.S. at 828.
2. Regarding the claim of failure to protect arising from the 2015 assault,
we also agree with the district court that Strizich did not state a claim. Although
rival gang members may have posed a potential risk to Strizich, he did not make
assertions from which a reasonable person could objectively infer that any named
Defendant was aware that Strizich was at a substantial risk of serious harm on the
date of the assault. Strizich was integrated with rival gang members for school,
work, and treatment groups without incident from June 2015 until the assault in
September 2015. Unlike the 2013 assault, Strizich does not allege that MSP
officials had “intel” that an incident involving him was about to happen. Strizich
did not allege sufficient facts to establish deliberate indifference on the part of the
Defendants.
3. Nor did the district court err in granting summary judgment to
Defendants on Strizich’s failure to protect claim arising from the 2013 assault.
This was the only claim to survive the motion to dismiss, and the district court
correctly held that it failed as a matter of law because of non-exhaustion. Only two

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of the grievances Strizich filed at MSP mention the 2013 assault, and neither is
sufficient to exhaust his claim. In July 2013, Strizich filed a grievance challenging
the housing decision returning him to the unit in which he was previously
assaulted. Even if we construed this grievance as grieving the assault itself, as
opposed to the housing decision, Strizich did not complete all required steps of
MSP’s grievance process, rendering the grievance unexhausted. See Jones v. Bock,
549 U.S. 199, 218 (2007). The only other grievance mentioning the 2013 assault is
Strizich’s April 2014 grievance, but this grievance similarly fails.
First, it was untimely, and a prisoner cannot satisfy the PLRA’s exhaustion
requirement by filing an “untimely or otherwise procedurally defective” grievance.
Woodford v. Ngo, 548 U.S. 81, 83–84 (2006). Second, in this grievance, Strizich
stated that he was “not grieving the 6-20-[13]” assault. Moreover, Strizich does
not challenge on appeal the district court’s granting of summary judgment on the
2013 assault claim.
AFFIRMED.

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