Obando v. Zavaras et al

Filing 32

ORDER denying without prejudice 15 Motion to Dismiss. Defendants shall answer or otherwise respond to Plaintiff's Amended Complaint [#3] on or before 2/29/12. Any dispositive motion filed by Defendants must comply with the applicable federal and local rules, including D.C.COLO.LCivR 56.1. By Magistrate Judge Kristen L. Mix on 2/15/12.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-01372-CMA-KLM
ALEX OBANDO,
Plaintiff,
v.
ARISTEDES W. ZAVARAS, DOC Executive Director,
TOM CLEMENTS, DOC Executive Director,
SUSAN JONES, CSP Warden,
MICHELLE NYCZ, Classification Chairperson,
JAMES OLSON, Committee Chairperson,
DAN DENNIS, Committee Member, and
JOHN DOE, CSP Assistant Administrative Head,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [Docket No. 15;
Filed November 21, 2011] (the “Motion”).

The Motion is referred to this Court for

recommendation [#16]. As explained below, the Court denies the Motion without prejudice,
which is non-dispositive and appropriately issued as an Order. See 28 U.S.C. § 636(b)(1).
Defendants bring this Motion pursuant to Fed. R. Civ. P. 12(b)(1) and (6). [#15] at
2-3. Defendants make several arguments, including that Plaintiff has failed to properly
exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”).
Id. at 4. Defendants do not designate under which Rule their exhaustion argument arises.
See id. In support of their assertion that Plaintiff failed to exhaust, Defendants include as

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exhibits to their Motion an affidavit of Grievance Officer Tony DeCesaro, a copy of the
Colorado Department of Corrections Administrative Regulation governing grievance
procedures, copies of Plaintiff’s grievances, and a copy of a grievance response signed by
Officer DeCesaro. See [#15-1].
“[F]ailure to exhaust is an affirmative defense under the PLRA, and . . . inmates are
not required to specially plead or demonstrate exhaustion in their complaints.” Jones v.
Bock, 549 U.S. 199, 216 (2007). “The burden of proof for the exhaustion of administrative
remedies in a suit governed by the PLRA lies with the defendant.” Roberts v. Barreras, 484
F.3d 1236, 1241 (10th Cir. 2007). “Dismissal under § 1997e(a) for failure to exhaust
administrative remedies therefore cannot usually be made on pleadings without proof.”
Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL 1597953, at *2 (D. Colo. Apr. 6,
2011) (citations omitted).
The affirmative defense of failure to exhaust administrative remedies is not a
challenge to the Court’s subject matter jurisdiction, and is therefore not subject to dismissal
pursuant to Rule 12(b)(1). See Ayyad v. Gonzales, No. 05-cv-02342-WYD-MJW, 2007 WL
324564, at *1 (D. Colo. Jan. 30, 2007) (citing Steele v. Fed. Bureau of Prisons, 355 F.3d
1204, 1209 (10th Cir. 2003), rev’d on other grounds by Jones v. Bock, 549 U.S. 199
(2007)). Further, the exhaustion issue is not subject to dismissal as a pleading deficiency
pursuant to Rule 12(b)(6), Torres v. O’Neal, No. 10-cv-00236-PAB-KLM, 2011 WL 782724,
at *1 n.1 (D. Colo. Jan. 14, 2011), particularly where, as here, the Plaintiff indicated in his
Amended Complaint that he exhausted available administrative remedies.1 See [#3] at 19.

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In application of Jones, the Tenth Circuit has noted that it must be clear from the face of
the complaint that an inmate failed to exhaust available administrative remedies before the district

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Thus, neither of the Rules cited by Defendants support their argument that Plaintiff failed
to exhaust. It is apparent (for these reasons, and by the inclusion of extra-record evidence
by Defendants with their Motion) that Defendants should have filed a motion for summary
judgment as to the exhaustion issue.2
Although the Court could convert the Motion to Dismiss to a motion for summary
judgment for purposes of resolving Defendants’ exhaustion argument, it declines to do so
here in light of the inherent deficiencies in the Motion, and the delay such conversion would
cause (in order to allow notice and additional briefing).3 See Powell v. Wilner, No. 06-cv00545-WYD-MEH (KLM), 2009 WL 840756, at *7 n.1 (D. Colo. Mar. 20, 2009) (same). No
case management schedule has been entered in this matter. The Court thus resets the
deadline for Defendants to answer or otherwise respond to Plaintiff’s Amended Complaint
[#3], which is the operative pleading, to February 29, 2012. The Court will set a Preliminary
Scheduling/Status Conference, if necessary, after review of Defendants’ answer or other
response. Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [Docket No. 15;
Filed November 21, 2011] is DENIED WITHOUT PREJUDICE.

court may dismiss the claim for failure to exhaust. Aquilar-Avellaveda v. Terrell, 478 F.3d 1223,
1225 (10th Cir. 2007).
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It is not uncommon for defendants in Section 1983 actions asserting an exhaustion
defense to file a combined motion to dismiss and motion for summary judgment. E.g., Omar v.
Maketa, No. 10-cv-02975-WYD-MEH, 2011 WL 4485955 (D. Colo. Aug. 3, 2011); Jones v. Timme,
No. 10-cv-00482-WYD-KMT, 2010 WL 3547888 (D. Colo. Sept. 3, 2010).
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The Court may not consider documents or other evidence outside of Plaintiff’s Amended
Complaint in deciding Defendant’s Motion filed under Rule 12(b)(6) without converting it to a Rule
56 motion for summary judgment. Dean Witter Reynolds, Inc. v. Howsam, 261 F.3d 956, 961 (10th
Cir. 2001) rev'd on other grounds.

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IT IS FURTHER ORDERED that Defendants shall answer or otherwise respond to
Plaintiff’s Amended Complaint [#3] on or before February 29, 2012.
IT IS FURTHER ORDERED that any dispositive motion filed by Defendants must
comply with the applicable federal and local rules, including D.C.COLO.LCivR 56.1.
Dated: February 15, 2012

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