Peterson

MEMORANDUM

California inmate John Fratus (“Fra-tus”) 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 ah 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 nonmov-ing'…