Ojo v. Hillsborough County Department of Corrections, Superintendent et al

Filing 58

ORDER re: 55 Motion to Dismiss. Motion converted to a Motion for Summary Judgment. Defendants have 14 days to file additional materials. Plaintiff will have 30 days thereafter to respond. Defendants may file a Reply and Plaintiff may seek to file a Surreply. So Ordered by Magistrate Judge Landya B. McCafferty.(dae)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Osahenrumwen Ojo
v.

Civil No. 11-cv-210-JL

Eldin Medic et al.
O R D E R
Defendants have filed a motion to dismiss (doc. no. 55)
this action in its entirety, alleging that Ojo has failed to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e.

Ojo objects (doc.

nos. 56 and 67), claiming that he was denied the opportunity to
avail himself of the jail’s administrative grievance process.
The matter has been referred to this magistrate judge for a
recommendation as to disposition.

See United States District

Court District of New Hampshire Local Rule 72.1.
Discussion
I.

Motion to Dismiss (Doc. No. 55)
If a motion to dismiss filed pursuant to Fed. R. Civ. P.

12(b)(6) relies upon “matters outside the pleadings,” the motion
must be treated as a motion for summary judgment under Fed. R.
Civ. P. 56.

Here, defendants press their motion on the basis of

Ojo’s alleged failure to exhaust, which is a matter outside the

pleadings, as evidenced by defendants’ submission of an
affidavit in support of that motion containing facts not
contained in the pleadings.

Accordingly, the court treats the

motion as seeking summary judgment on the basis of a claimed
undisputed fact regarding Ojo’s exhaustion of administrative
remedies.
Where the court converts a motion to dismiss to one for
summary judgment, Fed. R. Civ. P. 12(d) requires that the
parties “be given a reasonable opportunity to present all the
material that is pertinent to the motion.”

Accordingly, the

court grants defendants fourteen days from the date of this
order to file all of the material it deems pertinent to its
motion.

Plaintiff will have thirty days thereafter to file all

of the material it deems pertinent to its opposition to the
defendants’ motion for summary judgment (doc. no. 55).
Defendants may file a reply memorandum, and plaintiff may seek
leave to file a surreply memorandum thereafter, only in
accordance with LR 7.1(e).
SO ORDERED.
__________________________
Landya McCafferty
United States Magistrate Judge
October 1, 2012
cc: Osahenrumwen Ojo, pro se
John A. Curran, Esq.
LBM:jba

2