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DAWKINS v. JONES

United States District Court, S.D. New York


March 19, 2004.

EDWARD DAWKINS, Plaintiff, -against- LT. LARRY JONES, et al., Defendants

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

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)).*fn1 "Accordingly, Page 2 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).*fn2

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. Page 3

  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.


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