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.
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.
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.