                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             AUG 20 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

JOHN RICHARD FRATUS, IV,                        No. 13-15111

              Petitioner - Appellant,           D.C. No. 1:08-cv-01500-ROS

  v.
                                                MEMORANDUM*
PETERSON, Sgt.; LUNA, Officer;
HAMILTON; BEER, Officer; ADAMS,
Warden; CALIFORNIA DEPARTMENT
OF CORRECTIONS; SOLANO;
CORTEZ; ROBERTSON; MCROBERTS;
LLOREN; HAYES; PIGHTLING;
GRANNIS,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Roslyn O. Silver, Senior District Judge, Presiding

                           Submitted August 12, 2014**
                             San Francisco, California

Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.


        *
             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).
      California inmate John Fratus (“Fratus”) appeals pro se from the district court’s

dismissal of his 42 U.S.C. § 1983 excessive force action against prison officials. First,

he claims the district court incorrectly concluded he had failed to exhaust his

administrative remedies regarding a January 2007 incident. Second, with respect to

the July 2006 incident that went to trial, he claims the district court abused its

discretion by precluding the introduction of certain evidence. We affirm in part and

remand in part.

      With respect to Fratus’s January 2007 claim, we note that the defendants,

following existing circuit law at the time, see Wyatt v. Terhune, 315 F.3d 1108 (9th

Cir. 2003), brought an “unenumerated §12(b)” motion to dismiss for failure to

exhaust, which the district court granted without expressly addressing Fratus’s

claimed attempts to file grievances regarding the incident. However, earlier this year

an en banc panel of this court overruled Wyatt and held that a failure to exhaust

defense should be treated as a motion for summary judgment—not as an

“unenumerated” rule—with the court viewing the evidence in the light most favorable

to the nonmoving party. Albino v. Baca, 747 F.3d 1162, 1166, 1171–75 (9th Cir.

2014) (en banc). If there are disputed issues of material fact, then the district court

should deny the summary judgment motion; however, the court may then decide the

disputed factual issue upon consideration of the evidence presented (and further


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discovery if necessary). Id. at 1170–71. In light of this change in law, we remand for

the district court to follow the framework outlined in Albino in deciding the failure to

exhaust issue on the 2007 claim.

      With respect to the January 2006 incident that was tried to a jury, Fratus claims

that the district court abused its discretion by prohibiting him from introducing

evidence that his disciplinary action and loss of good time credits for head-butting

Officer Hamilton had been overturned by a California Court of Appeal due to

procedural defects in the disciplinary hearing. See In re Fratus, 204 Cal. App. 4th

1339 (2012). However, the district court properly ruled that the appellate decision

was not relevant to the issues at trial, as the procedural reversal did not make it more

or less likely that defendants used excessive force against Fratus, and would have

created a risk of juror confusion. See Fed. R. Evid. 401, 403. Moreover, any

exclusion was harmless because it was Fratus himself who introduced limited portions

of the disciplinary hearing into evidence in order to attempt to impeach Officer

Robertson with prior inconsistent statements. See Harper v. City of Los Angeles, 533

F.3d 1010, 1030 (9th Cir. 2008). We therefore affirm the district court’s evidentiary

ruling and the verdict with respect to Fratus’s 2006 claim.

      AFFIRMED IN PART, REMANDED IN PART. Each party to bear its own

costs on appeal.


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