Denzell Metcalf v. C. Huckleberry

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DENZELL METCALF, No. 21-16594 Plaintiff-Appellant, D.C. No. 1:19-cv-00809-DAD- BAM v. C. HUCKLEBERRY, Sgt.; M. BURKFIT, MEMORANDUM* Correctional Officer; M. FRANCO, Correctional Officer; M. MARQUEZ, Correctional Officer, Defendants-Appellees. Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding Submitted January 18, 2023** Before: GRABER, PAEZ, and NGUYEN, Circuit Judges. California state prisoner Denzell Metcalf appeals pro se from the district court’s summary judgment for failure to exhaust administrative remedies in his 42 U.S.C. § 1983 action alleging failure to protect. We have jurisdiction under 28 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014). We affirm. The district court properly granted summary judgment because Metcalf failed to exhaust his administrative remedies and failed to raise a genuine dispute of material fact as to whether administrative remedies were effectively unavailable. See Ross v. Blake, 578 U.S. 632, 638, 643-44 (2016) (explaining that an inmate must exhaust such administrative remedies as are available before filing an action, and describing limited circumstances in which administrative remedies are unavailable); Brown v. Valoff, 422 F.3d 926, 935 (9th Cir. 2005) (“The obligation to exhaust ‘available’ remedies persists as long as some remedy remains ‘available.’” (emphasis in original)). We are unpersuaded by Metcalf’s contention that the district court erred in considering Metcalf’s objections to the magistrate judge’s findings and recommendations despite recognizing that Metcalf’s objections were missing pages. AFFIRMED. 2 21-16594