Gebo v. Thyng
Filing
34
ORDER denying without prejudice 25 Motion to Dismiss. Defendant afforded opportunity to file Motion for summary judgment on or before 1/31/12. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
John W. Gebo
v.
Civil No. 11-cv-47-JD
Robert Thyng, Unit Manager,
Northern New Hampshire
Correctional Facility
O R D E R
John W. Gebo brings an Eighth Amendment claim under 42
U.S.C. § 1983 against Robert Thyng, Unit Manager, Northern New
Hampshire Correctional Facility, alleging that Thyng failed to
protect Gebo from attacks by other inmates.1
Thyng moves to
dismiss the complaint on the ground that Gebo failed to exhaust
available administrative remedies as required under the Prison
Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a).
Discussion
Thyng filed a motion to dismiss, presumably under Federal
Rule of Civil Procedure 12(b)(6), which is decided based on the
allegations in the complaint.
1
See Eldredge v. Town of Falmouth,
Gebo filed suit pro se and in forma pauperis. His
complaint was reviewed under 28 U.S.C. § 1915A and limited to the
Eighth Amendment claim. Gebo is now represented by counsel, who
filed an amended complaint on Gebo’s behalf.
662 F.3d 100, 104 (1st Cir. 2011).
Because exhaustion under §
1997e(a) is an affirmative defense, the defendant bears the
burden of showing that the plaintiff failed to exhaust, and the
plaintiff is not required to plead facts pertinent to exhaustion.
Cruz Berrios v. Gonzalez-Rosario, 630 F.3d 7, 11 (1st Cir. 2010)
(citing Jones v. Bock, 549 U.S. 199, 216 (2007)).
Therefore, an
exhaustion defense cannot be decided based on the plaintiff’s
failure to allege facts sufficient to show exhaustion.
See Cruz
Berrios, 630 F.3d at 11.
In support of his motion to dismiss, Thyng filed materials
extrinsic to the complaint, including affidavits and other
evidence.
Thyng has not addressed the discrepancy between the
form of his motion and the materials he submitted or shown that
the materials could be considered for purposes of a motion to
dismiss.
See Rivera v. Centro Medico de Turabo, Inc., 575 F.3d
10, 15 (1st Cir. 2009).
“If, on a motion [to dismiss 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.”
Fed. R. Civ. P. 12(d).
Therefore, exhaustion under § 1997a(e) must be addressed in
this case through a motion for summary judgment.
2
Thyng’s motion
to dismiss could be converted to one for summary judgment with
notice to the parties and an opportunity to file additional
materials to meet the summary judgment standard.
To avoid
confusion, however, Thyng’s motion to dismiss will be denied
without prejudice to allow him to file a properly supported
motion for summary judgment under the requirements of Rule 56 and
LR 7.1 and 7.2.
Gebo will then have the opportunity to file his
response, in accord with Rule 56 and LR 7.1 and 7.2.
Conclusion
For the foregoing reasons, the defendant’s motion to dismiss
(document no. 25) is denied without prejudice.
The defendant is afforded the opportunity to file a properly
supported motion for summary judgment on or before January 31,
2012.
The plaintiff will have thirty days from the date the
motion is served to file a response as provided under LR 7.1(b).
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 18, 2012
cc:
James Spencer Culp, Esquire
Theodore M. Lothstein, Esquire
Nancy J. Smith, Esquire
3
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