Mann v. Schlottman et al
NOTICE AND ORDER Concerning Court's Intent to Treat 44 MOTION to Dismiss, in Part, as one for Summary Judgment. (Response due by 2/21/2017.) Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-12869
Hon. Matthew F. Leitman
SOE SCHLOTTMAN, et al.,
NOTICE AND ORDER CONCERNING COURT’S INTENT TO TREAT MOTION TO
DISMISS (ECF #44), IN PART, AS ONE FOR SUMMARY JUDGMENT
Plaintiff Jack Mann (“Mann”) is an inmate in the custody of the Federal
Bureau of Prisons (the “BOP”). On August 7, 2015, Mann brought a pro se action
against Defendants. (See Complaint, ECF #1). On July 6, 2016, Mann filed an
Amended Complaint. (See Amended Complaint, ECF #31.)
On December 6, 2016, Defendants filed a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure (the “FRCP”). (See ECF #44.) In
that motion, Defendants argue, among other things, that the Court should dismiss
Mann’s constitutional claims because Mann “has failed to exhaust a claim of
constitutional harm in the prison grievance system” (the “Exhaustion Defense”).
(Id. at 18-20, Pg. ID 347-349.) In support of the Exhaustion Defense, Defendants
attach a Declaration by Heather MacConnell and a BOP report indicating that
Mann never sought administrative relief for his constitutional claims. (See ECF
Rule 12(d) of the FRCP states:
If, on a motion under Rule 12(b)(6) or 12(c), 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
give a reasonable opportunity to present all material that
is pertinent to the motion.
Because Defendants support their Exhaustion Defense with evidence outside the
scope of the allegations found in Mann’s Amended Complaint, the Court will treat
the Exhaustion Defense as if it was presented in a motion for summary judgment
under Rule 56 of the FRCP rather than in a Motion to Dismiss under Rule 12(b)(6)
of the FRCP. Mann shall have until February 21, 2017, to submit evidence in
opposition to Defendants’ Exhaustion Defense or otherwise show that the Court
should not grant summary judgment on that defense. Notwithstanding the Court’s
January 19, 2017 order (ECF #56), the Clerk of the Court is ordered to accept a
filing by Mann that is responsive to this Order.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 24, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 24, 2017, by electronic means and/or ordinary
s/Holly A. Monda
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