McCoy (ID 76894) v. Heimgartner et al

Filing 58

MEMORANDUM AND ORDER regarding 25 Motion for Summary Judgment. As Plaintiff did not have access to the exhibits that were referred to and relied on in the motion and the court has determined that it will treat the motion as one for summary judgme nt, the court must give Plaintiff an opportunity to file a supplemental brief. Accordingly, Plaintiff is granted 30 days after the filing of this order to file a supplemental response brief and any exhibits. Defendants' supplemental reply will be due 14 days after service of Plaintiff's response. Signed by District Judge John W. Broomes on 10/30/2018. Mailed to pro se party DeRon McCoy, Jr. at EL DORADO Correctional Facility-Central by regular mail. (aa)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON MCCOY, JR.,
Plaintiff,
v.

Case No. 17-3139-JWB

JAMES HEIMGARTNER, et al.,
Defendants.

MEMORANDUM AND ORDER
The court has before it Defendants’ Motion to Dismiss, or in the alternative motion for
summary judgment, and brief in support. (Docs. 25, 26.) A review of Defendants’ motion shows
that although it is based in part on Fed. R. Civ. P. 12(b)(6), it relies heavily on exhibits from the
Martinez report that were not attached to the motion. (See Doc. 26.) In such circumstances, “[i]f
… 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,” and “[a]ll parties must be given a
reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P.
12(d). The court concludes the best course is to treat Defendants’ motion as one for summary
judgment.
On July 18, 2018, Plaintiff filed a response to the motion. (Doc. 38.) Plaintiff also filed a
motion for copies of sealed documents cited in Defendants’ motion which was referred to
Magistrate Judge Sebelius. (Doc. 41.)

Based on the filings and the orders entered by the

magistrate judge, Plaintiff did not receive the Martinez report or exhibits referred to in the motion
for summary judgment until recently. (Docs. 48, 56.) As Plaintiff did not have access to the

exhibits that were referred to and relied on in the motion and the court has determined that it will
treat the motion as one for summary judgment, the court must give Plaintiff an opportunity to file
a supplemental brief.
Accordingly, Plaintiff is granted 30 days after the filing of this order to file a supplemental
response brief and any exhibits. Defendants’ supplemental reply will be due 14 days after service
of Plaintiff’s response.
IT IS SO ORDERED this 30th day of October, 2018.

___s/ John W. Broomes ____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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