ROBINSON v. MEDICAL STAFF et al

Filing 28

ORDER directing the Clerk of Court to attach a copy of Fed. R. Civ. P. 12 and 41 to Plaintiff's service copy of this Order. Signed by Magistrate Judge Brian K. Epps on 10/1/21. (wwp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
MICHAEL THOMAS ROBINSON,

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Plaintiff,
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v.
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MS. SUSAN OLIVER, Nurse Practitioner,
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and MS. PAMELA LINDSEY, Nurse
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Practitioner,
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Defendants.
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_________

CV 321-023

ORDER
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Plaintiff, an inmate at Johnson State Prison in Wrightsville, Georgia, is proceeding
pro se and in forma pauperis in the case brought pursuant to 42 U.S.C. § 1983. Defendants
filed a motion to dismiss and a motion to stay discovery. (Doc. nos. 26, 27.)
A motion to dismiss is dispositive in nature, meaning that 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. 1 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
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Plaintiff must also respond to the motion to stay the proceedings within fourteen days of
service of that motion. If Plaintiff fails to respond, the motion to stay will likewise be deemed
unopposed. See Loc. R. 7.5.

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, 2 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 Defendant.
To assure that Plaintiff’s response is made with fair notice of the requirements of the
Federal Rules of Civil procedure regarding motions to dismiss, generally, and motions to
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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.”
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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.
SO ORDERED this 1st day of October, 2021, at Augusta, Georgia.

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