Frank Valentin Hernandez v. Patrick Fitzsimons, Steven Thomas, Police Officer, L.J. Habryle, Police Officer, Getch, Police Sergeant

891 F.2d 295 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Frank Valentin HERNANDEZ, Plaintiff-Appellant, v. Patrick FITZSIMONS, Steven Thomas, Police Officer, L.J. Habryle, Police officer, Getch, Police Sergeant, Defendants-Appellees. No. 88-4420. United States Court of Appeals, Ninth Circuit. Submitted Oct. 30, 1989. * Decided Dec. 1, 1989. Before ALARCON, O'SCANNLAIN, and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 Frank Hernandez appeals pro se the district court's order dismissing his 42 U.S.C. § 1983 action for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Because the district court treated defendants' motion to dismiss as a motion for summary judgment without giving Hernandez reasonable notice of this change, we reverse and remand. 3 While defendants submitted what they called a "motion to dismiss" on December 17, 1987, this motion was in fact one for summary judgment because it was "based upon the files and records ...,…