United States District Court, W.D. Kentucky, Louisville
YALE L. BALCAR, CLARENCE RUSSELL PLAINTIFFS
AARON SMITH et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
Charles R. Simpson III, Senior Judge
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.
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
[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.
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).
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.
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
RULE OF CIVIL PROCEDURE 56-SUMMARY JUDGMENT
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
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.