Bob Bejarano v. KATHLEEN ALLISON, Warden at CSATF/Corcoran State Prison;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOB BEJARANO,
Plaintiff - Appellant,
v.
KATHLEEN ALLISON, Warden at
CSATF/Corcoran State Prison; et al.,
Defendants - Appellees.
No. 13-16952
D.C. No. 1:11-cv-00589-LJO-DLB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Bob Bejarano, a California state prisoner, appeals pro se from the district
court’s judgment dismissing for failure to exhaust administrative remedies his 42
U.S.C. § 1983 action alleging that defendants subjected him to a contraband watch
FILED
AUG 03 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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in retaliation for exercising his First Amendment rights. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Albino v. Baca, 747 F.3d 1162,
1171 (9th Cir. 2014) (en banc). We vacate and remand.
In granting the motion to dismiss for failure to exhaust administrative
remedies, the district court did not have the benefit of our recent decision in
Albino, where we held that a failure to exhaust defense should be raised in a
motion for summary judgment, not in an “unenumerated” Fed. R. Civ. P. 12(b)
motion, with the court viewing the evidence in the light most favorable to the
nonmoving party. See Albino, 747 F.3d at 1166, 1168-71. If there are disputed
issues of material fact, the district court should deny the summary judgment
motion; however, the court may decide the disputed factual issues in a separate
proceeding upon consideration of the evidence presented, and further discovery if
necessary. See id. We remand for the district court to follow the framework
outlined in Albino for deciding whether Bejarano failed to exhaust, and to ensure
that Bejarano is advised of Rule 56’s requirements. See Rand v. Rowland, 154
F.3d 952, 960-61 (9th Cir. 1998) (en banc).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
13-16952 2

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Each party shall bear its own costs on appeal.
VACATED and REMANDED.
13-16952 3

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