                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 02 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RUBEN JOSEPH RUIZ,                                No. 10-17747

              Plaintiff - Appellant,              D.C. No. 3:07-cv-00326-MHP

  v.
                                                  MEMORANDUM *
EVERETT FISCHER; DEVON
HAWKES; JOHN HARRISON,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Northern District of California
                  Marilyn H. Patel, Senior District Judge, Presiding

                        Argued and Submitted April 18, 2013
                             San Francisco, California

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

       Ruben Ruiz alleges that prison officials violated his due process rights in

validating him as a prison gang associate. He now appeals the district court’s

dismissal of claims against Defendants Hawkes and Fischer for failure to exhaust




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
administrative remedies and the district court’s grant of summary judgment in

favor of Defendant Harrison.

      We grant the appellees’ motion to augment the record. See Lowry v.

Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003). We deny the motion to

dismiss, however, because the case is not moot. See Bernhardt v. Cnty. of Los

Angeles, 279 F.3d 862, 872 (9th Cir. 2002).

      The district court should not have dismissed the claims against Defendants

Hawkes and Fischer for failure to exhaust because it was reasonable for Ruiz to

have relied on the statements by the Deputy Attorney General during state court

proceedings that further exhaustion was not required. See Brown v. Valoff, 422

F.3d 926, 937 (9th Cir. 2005). We nonetheless affirm the district court’s dismissal

and grant of summary judgment because Ruiz’s substantive claims lack merit. We

have recently held that “some evidence” is needed for validation as a prison gang

associate. Castro v. Terhune, No. 11-16837, 2013 WL 1364134, at * 7 n.4 (9th

Cir. April 5, 2013). Here, as the district court recognized, the Defendants had

“some evidence” with the requisite indicia of reliability before they validated Ruiz.

See Superintendent v. Hill, 472 U.S. 445, 455–56 (1985).

      AFFIRMED.




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