Inman v. Zanders et al

Filing 22

ORDER instructing the plaintiff on responding to 20 MOTION to Dismiss filed by Sam Zanders, Tina Sanders. Plaintiff shall have until December 15, 2016 to respond. Signed by Magistrate Judge Brian K. Epps on 11/21/16. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
KENNETH L. INMAN,

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Plaintiff,
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v.
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SAM ZANDERS, Warden, Dodge State
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Prison; TINA SANDERS, Deputy Warden
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of Care & Treatment, Dodge State Prison;
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DEPARTMENT OF CORRECTIONS;
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and HOMER BRYSON,
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Defendants.
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CV 315-095

ORDER
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Plaintiff, an inmate at Phillips State Prison in Buford, Georgia, commenced the
above-captioned case pursuant to 42 U.S.C. § 1983. He is proceeding pro se. Defendants
Zanders and Sanders filed a motion to dismiss on November 17, 2016. (Doc. no. 20.)
A motion to dismiss is dispositive in nature, meaning the granting of a motion to
dismiss results in the dismissal of individual claims or an entire action. If Plaintiff fails to
respond, the motion will be deemed unopposed and granted, resulting in the dismissal of the
claims that are the subject matter of the motion. See Loc. R. 7.5.
When, on a motion to dismiss, matters outside the pleadings are presented to and not
excluded by the Court, the normal course is for the Court to determine whether the motion to
dismiss should be treated as one for summary judgment and therefore disposed of as
provided by Fed. R. Civ. P. 56. Jones v. Automobile Ins. Co., 917 F.2d 1528, 1532 (11th

Cir. 1990). However, if the motion to dismiss raises the issue of exhaustion of administrative
remedies,1 the Eleventh Circuit has ruled: “Because exhaustion of administrative remedies is
a matter in abatement and not generally an adjudication on the merits, an exhaustion defense
. . . should be raised in a motion to dismiss, or be treated as such if raised in a motion for
summary judgment.” Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008).
Although a motion to dismiss based on an exhaustion defense need not be converted
to a motion for summary judgment, “it is proper for a judge to consider facts outside of the
pleadings and to resolve factual disputes so long as the factual disputes do not decide the
merits and the parties have sufficient opportunity to develop a record.” Id. at 1376 (citations
omitted). Therefore, if the exhaustion issue cannot be resolved based on the pleadings alone,
and if a defendant submits affidavits or other evidence in support of the motion to dismiss,
the plaintiff must be given the opportunity to submit his own affidavits or other evidence
contradicting a defendant’s submissions. See id. Accordingly, if the motion to dismiss in
this case raises the issue of exhaustion of administrative remedies, Plaintiff’s response to the
motion should include appropriate supporting affidavits or other documentary evidence he
may have to contest any exhaustion issue raised by Defendants. Any issues raised by
Defendants other than exhaustion will be addressed in accordance with the standard
requirements of the Federal Rules of Civil Procedure.
To assure Plaintiff’s response is made with fair notice of the requirements of the

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The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), states, “No action shall be
brought with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison or other correctional facility until such
administrative remedies as are available are exhausted.”

2

Federal Rules of Civil procedure regarding motions to dismiss, generally, and motions to
dismiss for failure to state a claim upon which relief may be granted, the Court DIRECTS
the CLERK of COURT to attach a copy of Fed. R. Civ. P. 12 and 41 to Plaintiff’s service
copy of this Order. Plaintiff shall have until December 15, 2016 to respond to Defendants’
Motion to Dismiss.
SO ORDERED this 21st day of November, 2016, at Augusta, Georgia.

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