Denzell Metcalf v. C. HUCKLEBERRY, Sgt.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENZELL METCALF,
Plaintiff-Appellant,
v.
C. HUCKLEBERRY, Sgt.; M. BURKFIT,
Correctional Officer; M. FRANCO,
Correctional Officer; M. MARQUEZ,
Correctional Officer,
Defendants-Appellees.
No. 21-16594
D.C. No. 1:19-cv-00809-DAD-
BAM
MEMORANDUM*
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).
FILED
JAN 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 21-16594
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 of 2 --