NOT FOR PUBLICATION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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