Balcar et al v. Smith et al
Filing
28
MEMORANDUM OPINION AND ORDER signed by Senior Judge Charles R. Simpson, III on 10/27/2017. Court construes Defendants' renewed 23 MOTION to Dismiss as a Motion for Summary Judgment. The Court will permit Plaintiffs to file a second response to Defendants' motion within thirty (30) days of entry of this Order. Defendants may file a reply fourteen (14) days from service of Plaintiffs' response. cc: Plaintiffs, pro se; Counsel (RLK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
YALE L. BALCAR
CLARENCE RUSSELL
v.
PLAINTIFFS
CIVIL ACTION NO. 3:17-CV-P119-CRS
AARON SMITH et al.
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon a renewed motion by Defendants to dismiss this
prisoner civil rights action for failure to exhaust available administrative remedies (DN 23).
Defendants attach a copy of Kentucky Corrections Policies and Procedures, Inmate Grievance
Procedure, and an affidavit to their motion. Defendants, however, do not identify the Federal
Rule of Civil Procedure under which they seek dismissal on exhaustion grounds.
Although there is no binding Sixth Circuit or Supreme Court precedent on point, this
procedural issue was recently extensively examined by the District Court of the Eastern District
of Michigan in Anderson v. Jutzy, 175 F. Supp. 3d 781 (E.D. Mich 2016). The Anderson court
reasoned as follows:
[A] prisoner’s failure to exhaust administrative remedies is an affirmative
defense, which a defendant must plead and prove. Jones [v. Bock], 549 U.S.
[199,] T 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 [(2007)]. As a general rule,
affirmative defenses must be raised by a responsive pleading. Fed. R. Civ. P.
12(b) (stating that “[e]very defense to a claim for relief in any pleading must be
asserted in the responsive pleading if one is required”). However, Rule 12(b) lists
seven specific defenses that may be raised by motion. A failure to exhaust defense
. . . is not included among the seven grounds . . . .
Once an affirmative defense is asserted, it may be adjudicated at any point in the
development of a lawsuit that the rules of procedure allow. As the Jones Court
noted, because a plaintiff need not anticipate or plead around an exhaustion
defense, that defense usually may not be addressed in a motion under Rule
12(b)(6) for failure to state a claim. However, the exhaustion affirmative defense
may be raised by a motion for summary judgment if the defendant successfully
demonstrates that no genuine issue of material fact exists and the defendant is
entitled to judgment as a matter of law on that defense . . . .
In Albino[v. Baca, 747 F.3d 1162 (9th Cir. 2014)], the court recognized that . . .
resort to an “‘unenumerated’ (that is, non-existent)” rule did not square with the
Supreme Court’s admonition in “Jones against deviating from ‘the usual practice
under the Federal Rules.’” Id. at 1166, 1169. The court reasoned that summary
judgment under Rule 56 was the more appropriate procedural vehicle to consider
whether a prisoner had exhausted administrative remedies. Id. at 1170. The
Albino court joined the Second, Third, Fifth, and Seventh Circuits, which all “use
a motion for summary judgment, as opposed to an unenumerated Rule
12(b) motion” to resolve the question whether a prisoner had failed to
exhaust administrative remedies under the [Prison Litigation Reform Act].
175 F. Supp. 3d at 786-88 (citations omitted). The Anderson court also recognized that
“the summary judgment motion is especially well suited to pretrial adjudication of
an exhaustion defense, because proof of lack of exhaustion generally requires resort to matters
outside the pleadings, such as affidavits or documentary evidence.” Id. at 787 (citing Wysocki v.
Int’l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) (holding that when “matters outside
the pleadings are presented to and not excluded by the court,” a motion to dismiss must be
treated as a motion “for summary judgment under Rule 56”). The Sixth Circuit has also
recognized that granting summary judgment due to failure to exhaust administrative remedies is
not on the merits, and requires dismissal without prejudice. Adams v. Smith, 166 F. App’x 201,
204 (6th Cir. 2006).
In light of the above case law, this Court concludes that Defendants’ motion to dismiss
should be construed as a motion for summary judgment. See also Hoosier v. Liu, No. 2:1610688, 2017 U.S. LEXIS 22049 (E.D. Mich. Jan. 23, 2017) (adopting reasoning set forth in
Anderson); Robison v. Coey, No. 2:15-cv-944, 2016 U.S. Dist. LEXIS 122296 (S.D. Ohio Sept.
9, 2016) (same). But see Hanserd v. Souder, No. 15-13201, 2017 U.S. Dist. LEXIS 45433
(E.D. Mich. Feb. 15, 2017) (finding summary judgment an “inappropriate vehicle for
adjudication” on the issue of whether the plaintiff failed to exhaust his administrative remedies
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under the PLRA because “there is no determination on the merits of the case, and no ‘judgment’
is entered” and collecting cases in support).
In the Sixth Circuit, before a district court may convert the motion sua sponte, the
“district court must afford the party against whom sua sponte summary judgment is to be entered
. . . notice and an adequate opportunity to respond.” Tackett v. M & G Polymers, USA, LLC, 561
F.3d 478, 487 (6th Cir. 2009) (quoting Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984)). It
does so now.
IT IS HEREBY ORDERED that the Court construes Defendants’ renewed motion to
dismiss (DN 23) as a motion for summary judgment under Federal Rule of Civil Procedure 56.
Thus, although Plaintiffs have already filed a response to Defendants renewed motion to dismiss
with their own attachments (DN 25), out of an abundance of caution, the Court will permit
Plaintiffs to file a second response to Defendants’ motion, along with any supporting materials,
within 30 days of entry of this Order. The Court instructs Plaintiffs that their response should
be guided by Federal Rule of Civil Procedure 56, which is attached to this Order. Defendants
may file a reply within 14 days from service of Plaintiffs’ response.
Date:
October 27, 2017
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Counsel of Record
4411.011
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FEDERAL RULE OF CIVIL PROCEDURE 56—SUMMARY JUDGMENT
(a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for
summary judgment, identifying each claim or defense--or the part of each claim or defense--on
which summary judgment is sought. The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. The court should state on the record the reasons for granting or
denying the motion.
(b) Time to File a Motion. Unless a different time is set by local rule or the court orders
otherwise, a party may file a motion for summary judgment at any time until 30 days after the
close of all discovery.
(c) Procedures.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions, interrogatory answers, or other materials;
or
(B) showing that the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that
the material cited to support or dispute a fact cannot be presented in a form that would be
admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider
other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.
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(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its opposition,
the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery; or
(3) issue any other appropriate order.
(e) Failing to Properly Support or Address a Fact. If a party fails to properly support an
assertion of fact or fails to properly address another party's assertion of fact as required by Rule
56(c), the court may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials--including the facts
considered undisputed--show that the movant is entitled to it; or
(4) issue any other appropriate order.
(f) Judgment Independent of the Motion. After giving notice and a reasonable time to respond,
the court may:
(1) grant summary judgment for a nonmovant;
(2) grant the motion on grounds not raised by a party; or
(3) consider summary judgment on its own after identifying for the parties material facts that
may not be genuinely in dispute.
(g) Failing to Grant All the Requested Relief. If the court does not grant all the relief requested
by the motion, it may enter an order stating any material fact--including an item of damages or
other relief--that is not genuinely in dispute and treating the fact as established in the case.
(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or
declaration under this rule is submitted in bad faith or solely for delay, the court--after notice and
a reasonable time to respond--may order the submitting party to pay the other party the
reasonable expenses, including attorney's fees, it incurred as a result. An offending party or
attorney may also be held in contempt or subjected to other appropriate sanctions.
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