                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2007

Vazquez v. Ragonese
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1203




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Recommended Citation
"Vazquez v. Ragonese" (2007). 2007 Decisions. Paper 1141.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1141


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                                                NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             No. 05-1203
                          ________________

                        JUAN M. VAZQUEZ,

                                   Appellant

                                    v.

   DAVID RAGONESE; DEVON BROWN; KATHERINE IRELAND;
    RAYFORD JOHNSON; MARK YAJCAJI; MICHAEL POWERS;
  OFFEI (UNKNOWN); DAVIS (UNKNOWN); STEVEN JOHNSON;
  CHARLES LEONE; RINA L. TERRY; GEORGESCU (UNKNOWN);
      CALDWELL (UNKNOWN); SCO. COTTO (UNKNOWN);
  BAILEY (UNKNOWN); ROY HENDRICKS; SAMUEL ATCHISON;
           JOHN DOE; JANE DOE; BRIAN BONOMO
            ____________________________________

            On Appeal From the United States District Court
                      For the District of New Jersey
                      (D.C. Civil No. 03-cv-05596)
             District Judge: Honorable Jerome B. Simandle
            _______________________________________

                      Submitted July 21, 2005
                      Decided August 4, 2005
On Remand from the Supreme Court of the United States February 20, 2007
             Submitted Upon Remand on March 30, 2007

 Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                          (Filed May 3, 2007)


                      _______________________

                               OPINION
                               _______________________

PER CURIAM

       Before us on remand is Juan Vazquez’s appeal from an order of the United States

District Court for the District of New Jersey, granting defendants’ summary judgment

motion and dismissing his civil rights complaint without prejudice for failing to exhaust

administrative remedies on all claims. On August 4, 2005, we entered judgment affirming

the District Court. Vazquez filed a petition for a writ of certiorari with the United States

Supreme Court. On February 20, 2007, the Supreme Court granted his petition, vacated

our judgment in this case and remanded the proceeding to our Court for further

consideration in light of Jones v. Bock, 549 U.S. __, 127 S. Ct. 910 (2007). For the

reasons that follow, we will vacate the order of the District Court entered December 17,

2004, and remand for further proceedings.1

       The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), prohibits an

inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct

   1
     Vazquez’ notice of appeal stated that he is also appealing orders entered earlier in the
case. We will affirm the following orders for the reasons stated by the District Court: (1)
order entered February 9, 2004 (dismissing defendants Judge Garrett E. Brown, Jr. and
District Clerk Supervising Deputy Clerk Michael Shanklin, on the basis of judicial
immunity and quasi-judicial immunity); (2) order entered June 23, 2004 (dismissing
claims against David Ragonese, Steven Johnson, Mark Yajcaji and Rina Terry on the
grounds of absolute immunity; dismissing procedural due process claim for lack of a
protected liberty interest, and dismissing claims against all defendants in their official
capacities); and (3) order entered September 15, 2004 (denying without prejudice
Vazquez’ motion for appointment of counsel). We note that on May 31, 2005, the
District Court also denied Vazquez’ motion for reconsideration; however, Vazquez has
not appealed that order.

                                              2
by prison officials until the inmate has exhausted available administrative remedies.

Here, the District Court determined that Vazquez had “exhausted his administrative

remedies only with respect to his allegations of retaliation, as set forth in paragraphs six

of the Parties section and paragraph twelve of the Statement of Claims of Plaintiff’s

Complaint.” The Court found that Vazquez “failed to exhaust his available

administrative remedies with respect to all other claims raised herein, particularly his

claims that he was threatened by staff at [the Garden State Youth Correctional Facility].”

The District Court dismissed the action without prejudice to give Vazquez the opportunity

to submit his claims to the prison administration, or to abandon his unexhausted claims

and proceed only on the exhausted claims.

       In Jones, the Court held that the PLRA does not contain a “total exhaustion rule;”

in other words, where a complaint contains both exhausted and unexhausted claims, the

Court may simply proceed with the exhausted claims and dismiss the unexhausted ones

rather than dismissing the entire complaint because of some unexhausted claims. Jones,

127 S. Ct. at 925-26. We therefore will vacate the District Court’s December 17, 2004

order and remand for further proceedings consistent with Jones.




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