DERRYL FOSTER V. J. HUEWE, No. 18-15528 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION DEC 3 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DERRYL TYRONE FOSTER, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 18-15528 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-toprotect 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. 2

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