Whitney v. United States Department of Justice

Filing 12

ORDER: The best course is to convert 8 Motion into one for summary judgment. Each party may present all additional materials pertinent to the motion, and more argument, by 10/27/2017. Signed by Judge D. P. Marshall Jr. on 9/22/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JAMES E. WHITNEY
ADC #163817
v.

PLAINTIFF
No. 4:17-cv-281-DPM

UNITED STATES DEPARTMENT
OF JUSTICE

DEFENDANT

ORDER
The Department of Justice moves to dismiss Whitney's
complaint under Rules 12(b)(1) & 12(b)(6). NQ 8.

Attached to the

Department's brief is an affidavit, which in turn attaches Whitney's
POI request and DOJ' s response.
with an affidavit.

NQ 11.

NQ 9-1.

Whitney has responded

The POI request is embraced by Whitney's

complaint, but the dueling affidavits are not.

If the issue were only

subject matter jurisdiction, the Court could consider these record
materials, but merits facts beyond the complaint can't be considered
on whether the pleading states a claim.

Group, 655 F.3d 796, 800 (8th Cir. 2011).

Brooks v. Midwest Heart

The best course is to convert

the motion, NQ 8, into one for summary judgment. FED. R. Crv. P. 12(d).
The Court does so.

Each party may present all additional materials

pertinent to the motion, and more argument, by 27 October 2017.

So Ordered.
D .P. Marshall (r.
United States District Judge

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