Perry v. Ebbert et al

Filing 24

ORDER re: motion 11 to dismiss - It is hereby ORDERED that court places parties on notice that it may consider exhaustion in its role as fact finder under Small v Camden & parties may supplement record w/in 20 days from date of this order w/ any addt'l supp'ng evidence relevant to exhaustion of admin remedies. (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 2/19/19. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DARRYL PERRY,
Plaintiff
v.
DAVID J. EBBERT, et al.,
Defendants

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CIVIL NO. 1:18-CV-870
(Chief Judge Conner)

ORDER
AND NOW, this 19th day of February, 2019, upon consideration of
defendants’ motion (Doc. 11) to dismiss pursuant to Federal Rule of Civil Procedure
12(b) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil
Procedure 56, and it appearing that whether plaintiff has exhausted his
administrative remedies in accordance with the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a), is at issue, and it further appearing that plaintiff seeks to excuse
compliance with the exhaustion requirement (see Docs. 1, 20), and the court noting
that it must provide the parties notice and an opportunity to be heard on the
exhaustion issue, see Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), it is hereby
ORDERED that the court places the parties on notice that it may consider
exhaustion in its role as fact finder under Small v. Camden Cty., 728 F.3d 265 (3d
Cir. 2013), and the parties may supplement the record within twenty (20) days from

the date of this order with any additional supporting evidence relevant to
exhaustion of administrative remedies.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania