United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
J. Hale, United States District Judge.
matter is before the Court upon a motion by Defendants to
dismiss this prisoner civil rights action for failure to
exhaust available administrative remedies (DN 13). Defendants
attach a copy of Kentucky Corrections Policies and
Procedures, the 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 F. App'x 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 Prison Litigation Reform Act because “there is no
determination on the merits of the case, and no
‘judgment' is entered” and collecting cases
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)). The Court will do so now.
IT IS HEREBY ORDERED that the Court
construes Defendants' motion to dismiss
(DN 13) as a motion for summary judgment under Federal Rule
of Civil Procedure 56. Plaintiff shall file a response to
Defendants' motion, along with any supporting materials,
within 30 days of entry of this Order. The
Court instructs Plaintiff that his 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 Plaintiff s response.
Plaintiff is WARNED that his failure to respond
within the time allowed will result in the Court considering
Defendants' motion for summary judgment without the
benefit of a response.
RULE OF CIVIL PROCEDURE 56-SUMMARY JUDGMENT
Motion for Summary Judgment or Partial Summary
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.
Time to ...