Opinion
Case No. 2:01-CV-271 TC
December 11, 2003
ORDER
Plaintiff, Ricardo Rodriguez, filed a pro se civil rights complaint while incarcerated at the Utah State Prison. See, 42 U.S.C.A. § 1983 (West Supp. 2003). After screening Plaintiff's amended complaint under 28 U.S.C. § 1915, the Court dismissed all defendants except Stephen Tuttle.See 28 id. § 1915(b). Defendant Tuttle answered, asserting that Plaintiff's complaint should be dismissed for failure to exhaust all available administrative remedies as required by 42 U.S.C. § 1997e(a). See 42 id. § 1997e(a). Trying to resolve the exhaustion issue as early as possible the Court ordered the parties to file briefs addressing the matter. See Perez v. Wis. Dep't of Corr., 182 F.3d 532, 536 (7th Cir. 1999) (noting that when defendants assert their rights under § 1997e(a) "the judge must address the subject immediately"). Defendant has filed a memorandum in support of his motion for dismissal, along with relevant prison records and an affidavit from the prison grievance coordinator. Plaintiff's memorandum in opposition is also supported by various documents.
Where nonexhaustion is apparent from the face of the complaint dismissal under Rule 12(b)(6) is appropriate. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1167, n. 5 (10th Cir. 2003), However, where it is not clear from the face of the complaint whether the plaintiff exhausted, the issue cannot be resolved on a Rule 12(b)(6) motion. Rather, Rule 12(b) provides that if, on a 12(b)(6) motion, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment," and the parties must be given a reasonable opportunity to present all "pertinent" materials. Fed.R.Civ.P. 12(b). Accordingly, the Court will treat Defendant's motion for dismissal as one for summary judgment under Rule 56.
Summary judgment is appropriate only "when there is no genuine issue as to any material fact . . . and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The facts must be viewed "in the light most favorable to the non-moving party." DeSpain v. Uphoff, 264 F.3d 965, 971 (10th Cir. 2001). The moving party bears the initial burden of showing "that there is an absence of evidence to support the non-moving party's case." Cellotex v. Catrett, 477 U.S. 317, 325 (1936). This burden may be met merely by identifying portions of the record which demonstrate the absence of a genuine issue of material fact. Id. Although the moving party may also support their motion with affidavits they are not required to do so.Id.
Once the moving party has shown the absence of a genuine issue of material fact the burden shifts to the nonmoving party. Federal Rule of Civil Procedure 56(e) requires a nonmovant "that would bear the burden of persuasion at trial" to "go beyond the pleadings and `set forth specific facts' that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant."Adler v. Wal-Mart Stores, 144 F.3d 664, 671 (10th Cir. 1998) (quoting Fed.R.Civ.P. 56(e)). The specific facts put forth by the nonmovant "must be identified by reference to an affidavit, a deposition transcript or a specific exhibit incorporated therein." Thomas v. Wichita Coca-Cola Bottling, 968 F.2d 1022, 1024 (10th Cir. 1992). Mere allegations and references to the pleadings will not suffice.
To meet its initial burden on summary judgment, of showing that there is an absence of evidence to support Plaintiff's assertion that he exhausted his administrative remedies, Defendant relies primarily upon the declaration of Billie Casper, Grievance Coordinator at the Utah State Prison. In her affidavit Casper briefly explains the three-level grievance procedure at the prison and states that according to prison records Plaintiff did not pursue his grievance beyond the first level. Casper also states in her affidavit that the prison has no record of Plaintiff's alleged appeals from the denial of his initial grievance. The Court concludes that Casper's affidavit is sufficient to satisfy Defendant's initial summary judgment burden. Thus, the burden now rests upon Plaintiff to "set forth such facts as would be admissible in evidence" showing that he exhausted all available administrative remedies. See Fed.R.Civ.P. 56(e).
Plaintiff's "Memorandum in Support of Plaintiff's Exhaustion of Remedies" is insufficient to satisfy his burden on summary judgment. Plaintiff's unsworn statements regarding his alleged attempts to complete the grievance process by mail lack evidentiary support. Plaintiff has not produced a copy of his alleged Level II grievance; nor has he shown the authenticity of the document he alleges to be a copy of his Level III grievance. Furthermore, there is no evidence showing that these appeals were ever mailed, or that they were actually received by the prison. However, because Plaintiff was not informed of his burden on summary judgment the Court will grant him additional time to present evidence on the exhaustion issue before ruling on Defendant's motion.
Accordingly, IT IS HEREBY ORDERED that Plaintiff shall, within thirty days from the date of this order, respond to Defendant's motion for dismissal in accordance with Rule 56 of the Federal Rules of Civil Procedure.