Opinion
Civil Action No. 07-cv-00872-WYD-KMT.
May 20, 2009
ORDER
This matter is before the court on "Defendant Jere G. Sutton, M.D.'s Motion to Dismiss Plaintiff's Amended Prisoner Complaint under Fed.R.Civ.P. 12(b)(6)." ([Doc. No. 108] [filed March 13, 2009] [hereinafter "Sutton Mot."].) Upon review of Defendants Oba, Cabiling, Colleymore and Brizendine's Motion for Summary Judgment (# 83), the court finds the medical records and affidavits contained therein highly relevant to its recommendation on Defendant Dr. Sutton's Motion to Dismiss.
"A 12(b)(6) motion must be converted into a motion for summary judgment if `matters outside the pleadings are presented to and not excluded by the court' and `all parties . . . [are] given a reasonable opportunity to present all material made pertinent to such a motion by [ Fed.R.Civ.P.] 56.'" GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed.R.Civ.P. 12(d)); see also Burnham v. Humphrey Hospitality Reit Trust, Inc., 403 F.3d 709, 713 (10th Cir. 2005) (holding that where the District Court relied on facts presented in affidavits, a Rule 12(b)(6) motion was properly converted into a motion for summary judgment). When a court converts a Rule 12(b)(6) motion into a motion for summary judgment, "it must provide the parties with notice so that all factual allegations may be met with countervailing evidence." Burnham, 403 F.3d at 713 (citing Nichols v. United States, 796 F.2d 361, 364 (10th Cir. 1986)).
In the interest of judicial efficiency, the court hereby converts Defendant Dr. Sutton's Motion to Dismiss into a Motion for Summary Judgment. Therefore, it is
ORDERED that Plaintiff shall file a Response to Defendant Dr. Sutton's Converted Motion for Summary Judgment no later than June 9, 2009 addressing the documents contained in Defendants Oba, Cabiling, Colleymore and Brizendine's Motion for Summary Judgment (# 83). Defendant Sutton shall file a Reply no later than June 19, 2009. No extensions of time will be granted for the filing of the Response and the Reply. If the plaintiff fails to file a Response by June 9, 2009, the court will issue its recommendation on the Converted Motion for Summary Judgment without Plaintiff's input. The Clerk of Court is directed to mail a copy of Doc. No. 83, and all supplements and amendments thereto, to the plaintiff immediately.