United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
This matter is before the Court on Defendant’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(c) for Failure to Exhaust Administrative Remedies [#256] (the “Motion”). Plaintiff, who proceeds as a pro se litigant,  filed a Response [#278] in opposition to the Motion, Defendant filed a Reply [#282], and Plaintiff filed a Surreply [#283]. The Court has reviewed the Motion, Response, Reply, Surreply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#256] is DENIED without prejudice.
Plaintiff is a state prisoner currently incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado. Third Am. Compl. [#90] at 2; Notice [#137]. The only claim remaining in this lawsuit is a Fourteenth Amendment claim of excessive force against Defendant Deputy Sheriff Andrew Keefer in his individual capacity. See Order [#198] at 11-13. As summarized by Judge Blackburn in evaluating Defendant’s qualified immunity argument in connection with a motion to dismiss:
Plaintiff[ ] ha[s] alleged that Deputy Sheriff Keefer attacked Mr. Carbajal without provocation while he was escorting Mr. Carbajal from the holding cell in the Denver District Court. . . . Based on the facts alleged herein, it would have been apparent to a reasonable official at the time of the alleged attack that striking a pre-trial detainee repeatedly in the head and slamming him up against a wall, all without any provocation, amounts to excessive force.
Id. at 7-8. The exact circumstances underlying this claim are immaterial for resolution of the present motion, in which Defendant moves to dismiss the only remaining claim pursuant to Fed.R.Civ.P. 12(c) based on Plaintiff’s asserted failure to exhaust administrative remedies.
II. Standard of Review
Fed. R. Civ. P. 12(c) provides: “After the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” A motion filed pursuant to Fed.R.Civ.P. 12(c) is evaluated using the same standard which applies to dismissal pursuant to Fed.R.Civ.P. 12(b)(6). Farris v. Garden City, Kan., F. App’x,, No. 15-3160, 2016 WL 496046 (Mem), at *1 (10th Cir. Feb. 9, 2016) (citing Myers v. Koopman, 738 F.3d 1190, 1193 (10th Cir. 2013)). However, “[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d); see also Reid v. United States, 626 F. App’x 766, 768 (10th Cir. 2015). Here, the parties have submitted a variety of exhibits in connection with the briefing on the exhaustion issue. See generally Motion [#256]; Response [#278]; Reply [#282].
Normally, when considering a motion to dismiss, the Court must disregard facts supported by documents other than the complaint unless the Court first converts the motion to dismiss into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). However, the Court may consider documents outside of the complaint on a motion to dismiss in three instances. First, the Court may consider outside documents pertinent to ruling on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000). Second, the Court may consider outside documents subject to judicial notice, including court documents and matters of public record. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006). Third, the Court may consider outside documents that are both central to the plaintiff’s claims and to which the plaintiff refers in his complaint. GFF Corp. v. Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997). None of these exceptions apply to the exhibits provided by the parties.
Regardless, Defendant argues that the Motion need not be converted to a motion for summary judgment because the issue is solely regarding whether Plaintiff properly exhausted his administrative remedies pursuant to 42 U.S.C. § 1997e(a). [#256] at 4-5. As one district court recently stated after a survey of authority from the Tenth Circuit Court of Appeals, “the circuit court has not indicated that a motion seeking dismissal under Rule 12(b)(6) of a prisoner’s . . . claims for failure to exhaust administrative remedies is improper or that such a motion must or must not be converted to a motion for summary judgment, even if it relies on evidentiary documents outside of the complaint.” Wilson v. Corr. Corp. of Am., No. CIV-14-779-W, 2015 WL 918801, at *4 (W.D. Okla. Mar. 2, 2015). However, the better practice in this situation appears to be either to exclude extraneous evidence submitted and evaluate the motion pursuant to Fed.R.Civ.P. 12(b)(6) or else to convert the motion into one for summary judgment. See, e.g., id.; Fleet v. Tidwell, No. 14-cv-02632-NYW, 2015 WL 4761190, at *2 (D. Colo. Aug. 13, 2015); Abbus v. Miller, No. CIV-14-214-C, 2014 WL 6901504, at *3 (W.D. Okla. Dec. 5, 2014). Here, given the parties’ submission of evidence in connection with the Motion [#256], the Response [#278], and the Reply [#282], the Court finds that the Motion should be converted into a motion for summary judgment and evaluated pursuant to Fed.R.Civ.P. 56.
The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should enter if the pleadings, the discovery and disclosure materials on file, and any affidavits show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.
The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 477 U.S. at 248; Simms v. Okla. ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party’s evidence must be more than “mere reargument of [his] case or a denial of an opponent’s allegation” or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998).
Aside from the conversion of the Motion, several other issues must be addressed before reaching the merits of Defendant’s argument. First, Plaintiff takes issue with the timing of Defendant’s Motion. The discovery deadline was September 30, 2014. See [#210]. The dispositive motions deadline was October 31, 2014 (although none were filed by either party at that time). See Id. The Motion [#256] was filed on January 8, 2016. The Final Pretrial Conference was held on January 12, 2016. See [#260]. Based on this time line of ...