Enyart v. Karnes et al

Filing 159

ORDER : The parties are ADVISED that the Court intends to treat the motion to dismiss, Doc. No. 135 , as one for summary judgment under Rule 56. Plaintiff is ORDERED to supplement his response to the motion to dism iss within 14 days from the date of this Order. Defendant Waldre may file a reply, if any, within 7 days from the date that plaintiffs supplemental response is filed. Signed by Magistrate Judge Norah McCann King on 5/22/12. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

FRANKLIN COUNTY, et al.,
Defendants.
ORDER
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that he
was denied due process while detained in the Franklin County Jail.
Defendant Daniel Waldren has filed a motion to dismiss for failure to
effect service of process.

Doc. No. 135.

In support of his motion

under Fed. R. Civ. P. 12(b)(5), defendant Waldren attaches an
affidavit signed by Major Stephanie Klumpp.
Doc. No. 135.

Exhibit A, attached to

Defendant has filed a response to the motion to

dismiss, Doc. No. 155.
In an excess of caution, however, the Court will convert the
motion to dismiss into a motion for summary judgment under Rule 56.
But see, e.g., Metro. Alloys Corp. v. State Metals Indus., Inc., 416
F. Supp. 2d 561, 563 (E.D. Mich. 2006) (“Facts as attested to in
uncontroverted affidavits may be considered in ruling on a motion to
dismiss under Rule 12(b)(5).”); 5A CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1366 (2d ed.) (stating that
the rule converting motions to dismiss into motions for summary
judgment applies only to Rule 12(b)(6) motions because “[t]here never
has been any serious doubt as to the availability of extra-pleading

material” as to motions under Rules 12(b)(1) through 12(b)(5) and
12(b)(7), because motions under those rules “only challenge the
propriety of the court adjudicating the claim before it and do not
reach the validity of the claim itself”).

In converting the motion to

dismiss to one for summary judgment, the facts stated in the affidavit
attached to the motion to dismiss will be accepted as true by the
Court unless plaintiff submits other evidence showing that there is a
genuine conflict of fact.

If plaintiff has personal knowledge of

facts that are different from those set out in defendant Waldren’s
supporting affidavit, he should submit an affidavit1 stating those
contrary facts.

He should also submit the affidavits of such other

persons having knowledge of the facts and any documents he has
relating to the facts.
Accordingly, the parties are ADVISED that the Court intends to
treat the motion to dismiss, Doc. No. 135, as one for summary judgment
under Rule 56.

Plaintiff is ORDERED to supplement his response to the

motion to dismiss within 14 days from the date of this Order.
Defendant Waldren may file a reply, if any, within 7 days from the
date that plaintiff’s supplemental response is filed.

May 22, 2012

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

1
The affidavit need not be notarized. It is sufficient if the affiant makes an
unsworn declaration under penalty of perjury in the following form: "I declare under
penalty of perjury under the laws of the United States of America that the foregoing
is true and correct. Executed on (date). (Signature)." See 28 U.S.C. §1746.

2