Derryl Foster v. J. Huewe

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 18-15528
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DERRYL TYRONE FOSTER, No. 18-15528

Plaintiff-Appellant, D.C. No. 1:16-cv-01839-LJO-SAB

v. MEMORANDUM* J. HUEWE, Correctional Officer at Corcoran State Prison; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, Chief Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

California state prisoner Derryl Tyrone Foster 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 various constitutional claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747

* 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). F.3d 1162, 1168 (9th Cir. 2014) (en banc). We affirm.

The district court properly granted summary judgment on Foster’s failure-to-

protect claim because Foster did not exhaust his administrative remedies and failed

to raise a genuine dispute of material fact as to whether administrative remedies

were effectively unavailable. See Woodford v. Ngo, 548 U.S. 81, 90 (2006)

(proper exhaustion requires “using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on the merits)” (emphasis,

citation, and internal quotation marks omitted)); Sapp v. Kimbrell, 623 F.3d 813,

823-24, 826-27 (9th Cir. 2010) (describing limited circumstances under which

exhaustion may be effectively unavailable).

Foster’s request regarding production of documents, set forth in his reply

brief, is denied.

AFFIRMED.