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Routt v. Howry

United States District Court, W.D. Oklahoma

November 19, 2019

ANDY HOWRY et al., Defendants.



         Plaintiff John Routt, a state prisoner appearing pro se and in forma pauperis, initiated this 42 U.S.C § 1983 action claiming Defendants Andy Howry and Brian Thornbough violated his Eighth and Fourteenth Amendment rights by incarcerating him beyond the expiration of his sentence. The matter was referred to United States Magistrate Judge Suzanne Mitchell for initial proceedings, in accordance with 28 U.S.C. § 636 (b)(1)(B), (C).

         On September 12, 2019, the magistrate judge issued a Report and Recommendation wherein she recommended dismissal of Plaintiff's official-capacity claims [R&R, Doc. No. 58 at 12], and further, that Defendants' alternative motion [Doc No. 55] be denied to the extent it seeks dismissal of Plaintiff's punitive-damages claims. R&R at 12.

         Defendants timely filed an objection on October 3, 2019 [Doc. No. 59]. Specifically, Defendants challenge the magistrate judge's conclusions as to whether (1) further discovery on administrative exhaustion is warranted; and, (2) Defendants are entitled to qualified immunity on Plaintiff's § 1983 individual-capacity claims. Objection, [Doc. No. 59] at 12. Plaintiff responded to these objections [Doc. No. 60].


         Pursuant to Fed.R.Civ.P. 72, where the district court refers dispositive matters to a magistrate judge for a report and recommendation, the district court “must determine de novo any part of the magistrate judge's disposition” to which a proper objection has been raised. Fed.R.Civ.P. 72(b)(3); Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1246 (10th Cir. 2015).

         Therefore, pursuant to Defendants' objections, the Court, will herein conduct a de novo review.


         I. The issue of administrative exhaustion remains unresolved.

         In her report and recommendation, Judge Mitchell noted that Defendants did not object to or otherwise challenge Plaintiff's request to “deny” or “defer considering” Defendants' alternative request for summary judgment. R&R at 58. As such, the R&R concluded, and this Court agrees, that Defendants have waived their right to do so.[1] As was proper, Judge Mitchell therefore went on to analyze Defendants' motion pursuant to Fed.R.Civ.P. 12(b)(6) [Doc. No. 55 at 18]. In doing so, Judge Mitchell correctly declines to rely on materials outside of the pleadings, [R&R at 11-12], and this Court on de novo review will do the same.

         The Tenth Circuit has recognized that “[g]enerally, the sufficiency of a complaint must rest on its contents alone.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (quoting Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010) (“The district court's disposition of the complaint was irregular. Although it characterized its action as a dismissal for failure to state a claim, the court did not restrict itself to looking at the complaint.”)). Gee identified three limited exceptions to the general rule restricting a court's consideration to the pleadings alone when deciding the merits of a motion to dismiss: “(1) documents the complaint incorporates by reference or attached as exhibits to the complaint, (2) documents referred to in the complaint if the documents are central to the plaintiff's claim, and the parties do not dispute the documents' authenticity, and (3) matters of which a court may take judicial notice.” Carrigan v. Goree, No. CIV-13-842-D, 2015 WL 3948853, at *5 (W.D. Okla. June 26, 2015) (DeGiusti, J.).

         The Court, addressing a 12(b)(6) motion in Carrigan v. Goree, agreed to consider grievance documents attached to a Special Report, to resolve whether the prerequisite of administrative exhaustion to a § 1983 suit had been met. Id. There were several factors militating toward allowing Defendant to rely on exhaustion-related materials. Id. The materials, as they are here, were relevant to determining whether Plaintiff has exhausted his administrative remedies-a prerequisite for suing in a federal court. Id. But unlike this case, the additional materials offered “a complete view of Plaintiff's attempt to exhaust administrative remedies, ” and the plaintiff in Carrigan had not responded to the defendant's motion to dismiss, which was thereby deemed admitted. Id.

         In this case, Plaintiff has specifically responded with a request to engage in discovery focused “on his challenged administrative-exhaustion efforts as well as his interactions with prison officials.” R&R at 13. The Court cannot say, at this stage of the proceedings, that the single affidavit referenced by Defendants offers a complete view of Plaintiff's attempts at exhaustion. This is particularly so considering Plaintiff's specific request to engage in further discovery, and Plaintiff's contentions that his exhaustion efforts were obstructed. R&R at 5-6.[2] Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (“Where prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy, ” exhaustion is not required).

         Defendants' objections to the R&R, asserting further discovery on administrative ...

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