Lindsay v. Conover

Filing 21

MEMORANDUM AND ORDER regarding 10 Motion to Dismiss. The court will convert the motion into one for summary judgment. Pursuant to Fed. R. Civ. P. 12(d), the parties must be given an opportunity to present material for the court's consideration. Defendant may file a supplemental brief and any additional exhibits by November 23. Plaintiff may file a supplemental response and any additional exhibits by December 14. Signed by District Judge Monti L. Belot on 10/30/2012. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SPENCER L. LINDSAY,
Plaintiff,
v.
EMMALEE CONOVER,
Defendant.

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CIVIL ACTION
No.

12-3167-MLB

MEMORANDUM AND ORDER
This case comes before the court on defendant’s motion to
dismiss.

(Docs. 8, 10).

ripe for decision.

The motion has been fully briefed and is

(Docs. 9, 19, 20).

In a motion to dismiss, the

court must accept as true well pleaded factual allegations, but also
consider whether “they plausibly give rise to an entitlement to
relief.”

Ashcroft v. Iqubal, 129 S. Ct. 1937, 1949–50, 173 L. Ed.2d

868 (2009).

It is not the court's role to weigh potential evidence

that the parties might present at trial, but rather to determine
whether plaintiff's complaint states a legally sufficient claim upon
which the court can grant relief. Sutton v. Utah State Sch. for the
Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

In a motion to

dismiss, the court is not permitted to consider matters outside the
complaint without converting the motion into one for summary judgment.
Alexander v. Okla., 382 F.3d 1206, 1214 (10th Cir. 2004).
As exhibits to the motion to dismiss, defendant submitted a copy
of the mandate from the Kansas Court of Appeals, the sentencing
decision from the district court, a copy of the sentencing decision
showing the date of receipt by the Kansas Department of Corrections

and an electronic printout of plaintiff’s criminal record.

Court

decisions can be considered without converting the motion to dismiss
into one for summary judgment. See Peterson v. Saperstein, No. 064314, 2008 WL 515030 (10th Cir. Feb. 27, 2008).

However, the court

may not take judicial notice of when a party received a sentencing
decision.
In response to defendant’s motion, plaintiff contends that he
would like to be given the opportunity to present evidence if the
court chooses to consider the exhibits offered by defendant.

Fed. R.

Civ. P. 12(d) provides: “If, on a motion under Rule 12(b)(6) . . .,
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.

All parties must be given a reasonable opportunity to

present all the material that is pertinent to the motion.”
Therefore, the court will convert the motion into one for
summary judgment. Pursuant to Fed. R. Civ. P. 12(d), the parties must
be

given

an

consideration.

opportunity

to

present

material

for

the

court’s

Defendant may file a supplemental brief and any

additional exhibits by November 23. Plaintiff may file a supplemental
response and any additional exhibits by December 14.

IT IS SO ORDERED.
Dated this 30th

day of October 2012, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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