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Balcar v. Smith

United States District Court, W.D. Kentucky, Louisville

October 27, 2017

YALE L. BALCAR, CLARENCE RUSSELL PLAINTIFFS
v.
AARON SMITH et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Charles R. Simpson III, Senior Judge

         This matter is before the Court upon a renewed motion by Defendants to dismiss this prisoner civil rights action for failure to exhaust available administrative remedies (DN 23). Defendants attach a copy of Kentucky Corrections Policies and Procedures, Inmate Grievance Procedure, and an affidavit to their motion. Defendants, however, do not identify the Federal Rule of Civil Procedure under which they seek dismissal on exhaustion grounds.

         Although there is no binding Sixth Circuit or Supreme Court precedent on point, this procedural issue was recently extensively examined by the District Court of the Eastern District of Michigan in Anderson v. Jutzy, 175 F.Supp.3d 781 (E.D. Mich. 2016). The Anderson court reasoned as follows:

[A] prisoner's failure to exhaust administrative remedies is an affirmative defense, which a defendant must plead and prove. Jones [v. Bock], 549 U.S. [199, ] ¶ 216, 127 S.Ct. 910, 166 L.Ed.2d 798 [(2007)]. As a general rule, affirmative defenses must be raised by a responsive pleading. Fed.R.Civ.P. 12(b) (stating that “[e]very defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required”). However, Rule 12(b) lists seven specific defenses that may be raised by motion. A failure to exhaust defense . . . is not included among the seven grounds . . . .
Once an affirmative defense is asserted, it may be adjudicated at any point in the development of a lawsuit that the rules of procedure allow. As the Jones Court noted, because a plaintiff need not anticipate or plead around an exhaustion defense, that defense usually may not be addressed in a motion under Rule 12(b)(6) for failure to state a claim. However, the exhaustion affirmative defense may be raised by a motion for summary judgment if the defendant successfully demonstrates that no genuine issue of material fact exists and the defendant is entitled to judgment as a matter of law on that defense . . . .
In Albino[v. Baca, 747 F.3d 1162 (9th Cir. 2014)], the court recognized that . . . resort to an “‘unenumerated' (that is, non-existent)” rule did not square with the Supreme Court's admonition in “Jones against deviating from ‘the usual practice under the Federal Rules.'” Id. at 1166, 1169. The court reasoned that summary judgment under Rule 56 was the more appropriate procedural vehicle to consider whether a prisoner had exhausted administrative remedies. Id. at 1170. The Albino court joined the Second, Third, Fifth, and Seventh Circuits, which all “use a motion for summary judgment, as opposed to an unenumerated Rule 12(b) motion” to resolve the question whether a prisoner had failed to exhaust administrative remedies under the [Prison Litigation Reform Act].

175 F.Supp.3d at 786-88 (citations omitted). The Anderson court also recognized that “the summary judgment motion is especially well suited to pretrial adjudication of an exhaustion defense, because proof of lack of exhaustion generally requires resort to matters outside the pleadings, such as affidavits or documentary evidence.” Id. at 787 (citing Wysocki v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th Cir. 2010) (holding that when “matters outside the pleadings are presented to and not excluded by the court, ” a motion to dismiss must be treated as a motion “for summary judgment under Rule 56”). The Sixth Circuit has also recognized that granting summary judgment due to failure to exhaust administrative remedies is not on the merits, and requires dismissal without prejudice. Adams v. Smith, 166 Fed.Appx. 201, 204 (6th Cir. 2006).

         In light of the above case law, this Court concludes that Defendants' motion to dismiss should be construed as a motion for summary judgment. See also Hoosier v. Liu, No. 2:16-10688, 2017 U.S. LEXIS 22049 (E.D. Mich. Jan. 23, 2017) (adopting reasoning set forth in Anderson); Robison v. Coey, No. 2:15-cv-944, 2016 U.S. Dist. LEXIS 122296 (S.D. Ohio Sept. 9, 2016) (same). But see Hanserd v. Souder, No. 15-13201, 2017 U.S. Dist. LEXIS 45433 (E.D. Mich. Feb. 15, 2017) (finding summary judgment an “inappropriate vehicle for adjudication” on the issue of whether the plaintiff failed to exhaust his administrative remedies under the PLRA because “there is no determination on the merits of the case, and no ‘judgment' is entered” and collecting cases in support).

         In the Sixth Circuit, before a district court may convert the motion sua sponte, the “district court must afford the party against whom sua sponte summary judgment is to be entered . . . notice and an adequate opportunity to respond.” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 487 (6th Cir. 2009) (quoting Yashon v. Gregory, 737 F.2d 547, 552 (6th Cir. 1984)). It does so now.

         IT IS HEREBY ORDERED that the Court construes Defendants' renewed motion to dismiss (DN 23) as a motion for summary judgment under Federal Rule of Civil Procedure 56. Thus, although Plaintiffs have already filed a response to Defendants renewed motion to dismiss with their own attachments (DN 25), out of an abundance of caution, the Court will permit Plaintiffs to file a second response to Defendants' motion, along with any supporting materials, within 30 days of entry of this Order. The Court instructs Plaintiffs that their response should be guided by Federal Rule of Civil Procedure 56, which is attached to this Order. Defendants may file a reply within 14 days from service of Plaintiffs' response.

         FEDERAL RULE OF CIVIL PROCEDURE 56-SUMMARY JUDGMENT

         (a) Motion for Summary Judgment or Partial Summary Judgment. A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.

         (b) Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery.

         (c) ...


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