Brown v. Bureau of Prisons et al

Filing 73

ORDER. Defendants' 49 motion to dismiss, to the extent it seeks dismissal for failure to exhaust administrative remedies, is converted into a motion for summary judgment. On or before Friday, 8/31/2012, plaintiff may address whether defendants are entitled to summary judgment due to a failure by plaintiff to fully exhaust administrative remedies. By Judge Philip A. Brimmer on 8/9/12. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-00200-PAB-MEH
JOE BROWN,
Plaintiff,
v.
JACK CANTRELL, Director of UNICOR, and
HARLEY LAPPIN, Director of the Bureau of Prisons,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 65] which addresses
defendants’ motion to dismiss [Docket No. 49]. The Recommendation concludes,
among other things, that plaintiff, who is a federal Bureau of Prisons (“BOP”) inmate,
failed to exhaust all available administrative remedies before bringing suit as required
by the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). More
specifically, the magistrate judge agreed with defendants’ argument that, in addition to
exhausting BOP remedies, plaintiff was required to file a complaint with the Office of
Equal Employment Opportunity of the United States Department of Justice (“DOJ”)
within 180 days of the final BOP administrative decision. See 28 C.F.R. § 39.170(d)(3).
Defendants filed two declarations in support of their failure to exhaust argument, see
Docket No. 49-1; Docket No. 49-2, and the Recommendation noted that plaintiff, in
response, did not address whether he filed a complaint with the DOJ. See Docket No.

65 at 14.
Plaintiff was under no obligation to plead exhaustion, see Jones v. Bock, 549
U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an affirmative defense
under the PLRA, and that inmates are not required to specially plead or demonstrate
exhaustion in their complaints.”), and defendants supported their request for dismissal
on this basis with outside evidence. Therefore, the Court concludes that this aspect of
defendants’ motion to dismiss should be converted into a motion for summary judgment
before the Court addresses the Recommendation and resolves defendants’ motion.
See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”). The Court will afford plaintiff
the opportunity to address whether he was required to file a complaint with the DOJ and
to submit any additional evidence he believes relevant to the exhaustion issue. See id.
(“All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.”).
For the foregoing reasons, it is
ORDERED that defendants’ motion to dismiss [Docket No. 49], to the extent it
seeks dismissal for failure to exhaust administrative remedies, is converted into a
motion for summary judgment. It is further
ORDERED that, on or before Friday, August 31, 2012, plaintiff may address
whether defendants are entitled to summary judgment due to a failure by plaintiff to fully
exhaust administrative remedies.

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DATED August 9, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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