Opinion
CASE NO. 5:04cv114-SPM/AK.
July 14, 2008
ORDER
Presently before the Court in the above entitled action is the following motion: Defendants' Motion to Limit Plaintiff's Response to Defendants' Motion for Summary Judgment and Motion to Defer Response to Plaintiff's Cross-Motion for Summary Judgment. (Doc. 65). Plaintiff has responded. (Doc. 66). Having considered said motion, the Court is of the opinion that Defendants' motion should be GRANTED.
Defendants have raised the issue of exhaustion and attached evidentiary material (copies of grievances and other pleadings) for consideration by the Court. Pursuant to applicable case law, the Court must treat such a motion as one for summary judgment and advised Plaintiff of this by Order dated May 1, 2008. (Doc. 61). When the Court allowed Plaintiff to file an additional response with evidentiary material, it was not intended to enlarge the issues which were presented in Defendants' motion. Plaintiff was given an opportunity to develop the facts and submit proof thereof, as they relate to the issue of exhaustion. Thus, the Court will consider Plaintiff's response only as it pertains to exhaustion. If Defendants' motion is denied, then a scheduling order will be entered to allow for discovery on the merits and additional motions may be filed after discovery. Thus, no response by Defendants' to Plaintiff's cross motion need be filed at this time.
Accordingly, it is
ORDERED:
1. Defendants' Motion (doc. 65) is GRANTED, and the Court will only consider the issue of exhaustion and Plaintiff's response as it concerns that issue.
2. Plaintiff's cross-motion for summary judgment (doc. 64) is DENIED as a separate motion, but will be considered as a response to the pending motion for summary judgment insofar as it pertains to the issue of exhaustion.
DONE AND ORDERED.