converting motion to dismiss on issue of exhaustion to motion for summary judgment
How later courts described this case
- converting motion to dismiss on issue of exhaustion to motion for summary judgment
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LANCE HULLUM,
Plaintiff,
v. CIVIL ACTION NO.
23-10082-PBS
CAROL MICI, SHAWN ZOLDAK,
DEPARTMENT OF CORRECTION,
CO STEPHEN ADAMS, CO TAYLOR LANDRY,
CO STEVEN CLARK, AND
FORMER CO BRENDAN METCALF,
Defendants.
ORDER
SARIS, D.J. JULY 30, 2024
Defendants’ Motion to Dismiss, ECF No. 158 is ALLOWED
in part, converted to a motion for summary judgment on the issue
of exhaustion with leave to file supplemental briefing, and held
in abeyance as to issues in the motion to dismiss otherwise not
decided, as follows:
(1) All injunctive relief claims are DISMISSED as MOOT;
(2) All official capacity monetary damages claims against
the Department of Correction and official capacity claims
against the individual defendants are DISMISSED with prejudice
under Eleventh Amendment sovereign immunity; see Doe v.
Shibinette, 16 F.4th 894, 903 (1st Cir. 2021); and
(3) All remaining claims for individual monetary damages
are DISMISSED without prejudice as to defendants Mici and
Zoldack for failure to plead any plausible allegations against
them;
As to the individual capacity claims against the remaining
individual defendants, it appears that the plaintiff began, but
did not exhaust his administrative remedies as to these
remaining defendants, and therefore the claims are subject to
dismissal; however, this issue is more properly determined on a
motion for summary judgment, not a motion to dismiss, and the
Court converts the motion to dismiss to a motion for summary
judgment only as to that issue, and will provide the parties an
opportunity to further brief the issue under that standard. See
Fed. R. Civ. P. 12(d) (“If, 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. All parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.”); Maraglia v. Maloney, 365 F. Supp. 2d
76, 81 (D. Mass. 2005) (converting motion to dismiss on issue of
exhaustion to motion for summary judgment); Cruz-Berrios v. P.R.
Dep’t of Corr. and Rehab., No. CV 16-3155 (RAM), 2019 WL
5858157, at *3 (D.P.R. Nov. 8, 2019) (same).
Specifically, as to the remaining individual defendants, it
appears the plaintiff has asserted in his opposition that he
considers having called a hotline as exhausting his
administrative remedies, notwithstanding the conclusory
allegation in the Amended Complaint that he has exhausted
administrative remedies. Of course, “a motion to dismiss may be
granted on the ground of failure to exhaust only where the facts
establishing the defense are clear on the face of the
plaintiff's pleadings.” Hudson v. MacEachern, 94 F. Supp. 3d
59, 67 (D. Mass. 2015) (cleaned up). Here, it is apparent from
the exhibits attached to the Amended Complaint that while
plaintiff began the informal grievance process with respect to
the remaining individual defendants, he did not file formal
grievances as to them, as instructed in the form and in
resolution of the informal grievances. See ECF No. 95-1 (filing
informal grievances and being instructed by the facility to file
a formal grievance). Furthermore, the affidavits presented by
the defendants earlier in this action and relied upon by both
parties –- though not specifically in support of their motion to
dismiss and outside the pleadings -- do not paint a clear
picture as to the hotline complaint process and whether
complaints were initiated as to the remaining defendants.
Accordingly, the defendants shall supplement their motion
to dismiss with a properly supported motion for partial summary
judgment motion as to this issue by August 16, 2024; plaintiff
shall file any opposition by September 13, 2024.1 The Court is
particularly interested in the entire grievance history
concerning this issue, in addition to the remaining defendants.
No other issues are to be raised in this narrow briefing other
than the issue of exhaustion identified here, nor is any other
supplemental briefing authorized on the pending motion to
dismiss. The remaining undecided issues in the motion to
dismiss (i.e. qualified immunity and merits claims) are held in
abeyance pending the resolution of the exhaustion issue.
As for the remaining pending motions, ECF Nos. 142, 147,
148, 151, and 156, are each DENIED. Plaintiff’s motion for
discovery, ECF No. 80, and motion for default judgment, ECF No.
162, are each DENIED inasmuch as it appears the Department of
Correction has preserved the requested video footage and has
represented to the Court that no audio recordings exist.
So Ordered.
/s/ PATTI B. SARIS
UNITED STATES DISTRICT JUDGE
1 The conversion of this narrow issue on the motion to dismiss to
a motion for partial summary judgment on the issue of exhaustion
does not prevent the filing of motions for summary judgment in
the ordinary course.