United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI CHIEF UNITED STATES DISTRICT JUDGE
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).
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
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].
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).
pursuant to Defendants' objections, the Court, will
herein conduct a de novo review.
The issue of administrative exhaustion remains
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. 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.
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.).
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
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
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).
objections to the R&R, asserting further discovery on