Opinion
03 Civ. 0068 (DAB) (AJP)
March 19, 2004
OPINION ORDER
While defendants' motion to dismiss raises several grounds, the potentially dispositive threshold issue appears to be whether plaintiff Dawkins exhausted prior administrative remedies for all of his claims, against all defendants. (See Dkt. No. 92: Defs.' Motion to Dismiss Br. at 9-17.) While defendants' brief recites alleged details about Dawkins' failure to exhaust, those "facts" go beyond the complaint, and are not (on this motion) supported by any evidence. (Defs.' Motion to Dismiss Br. at 8.) Accordingly, the exhaustion issue in this case cannot be decided on a motion to dismiss. In the Second Circuit, failure to exhaust administrative remedies in a prisoner litigation case is an affirmative defense. Foreman v. Goord, 02 Civ. 7089, 2004 WL 385114 at *6 (S.D.N.Y. Mar. 2, 2004) (citing Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999)). "Accordingly, defendants bear the burden of showing non-exhaustion and the `issue of exhaustion is generally not amenable to resolution by way of a motion to dismiss.'" Foreman v. Goord, 2004 WL 385114 at *6 (Where "Plaintiffs Complaint alleges full exhaustion in general terms and provides some details of compliance with the required grievance procedures. . . . [and] Defendants, on the other hand, provide no evidence of non-exhaustion . . . defendants' motion to dismiss based on failure to exhaust administrative remedies must be converted into a motion for summary judgment."). `"If nonexhaustion is not clear from the face of the complaint, a defendant's motion should be converted, pursuant to Rule 12(b), to one for summary judgment limited to the narrow issue of exhaustion and the relatively straightforward questions about the plaintiffs efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very limited circumstances, excused."' Scott v. Gardner, 287 F. Supp.2d 477, 485 (S.D.N. Y. 2003) (quoting McCoy v. Goord, 255 F. Supp.2d at 248).
See also, e.g. Ziemba v. Clark, No. 302CV1609, 2003 WL 22918308 at *3 (D. Conn. Dec. 4, 2003); Nicholson v. Murphy No. 302CV1815, 2003 WL 22909876 at *6 (D. Conn. Sept. 19, 2003); McCoy v. Goord, 255 F. Supp.2d 233, 248 (S.D.N.Y. 2003) ("[T]he burden of proving nonexhaustion is best placed on prison officials, [because] `it is considerably easier for a prison administrator to show a failure to exhaust than it is for a prisoner to demonstrate exhaustion . . .");Arnold v. Goetz. 245 F. Supp.2d 527, 539 (S.D.N.Y. 2003); Torrence v. Pesanti, 239 F. Supp.2d 230, 233 (D. Conn. 2003).
See also, e.g., Arnold v. Goetz, 245 F. Supp.2d at 539 (Motion to dismiss converted to summary judgment motion because "defendants bear the burden of proving that [plaintiff] failed to satisfy the PLRA's exhaustion requirement" but defendants' argument that plaintiff failed to exhaust was "not corroborated by any accompanying affidavits . . . [and] consist[ed] of nothing more than allegations set forth in the defendants' memorandum of law."); Torrence v. Pesanti, 239 F. Supp.2d at 233 ("When the failure to exhaust administrative remedies under the PLRA is suggested, but not unambiguously established, by way of a motion to dismiss, the court can and should convert the motion to dismiss into a motion for summary judgment and order further briefing and/or evidence.")
Accordingly, defendants' motion to dismiss (Dkt. No. 92) is DENIED without prejudice to renewal by April 5, 2004 as a combined motion to dismiss and for summary judgment (limited to the issue of exhaustion). Mr. Dawkins will have until April 16, 2004 to file opposition papers and defendants until April 23, 2004 to file reply papers.
Defendants' moving papers should include an affidavit(s) providing necessary information to decide the exhaustion issue, and specifically include copies of Mr. Dawkins' grievances, as well as the prison's responses, appeals, etc.
SO ORDERED.