The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
John W. Gebo brings an Eighth Amendment claim under 42 U.S.C. § 1983 against Robert Thyng, Unit Manager, Northern New Hampshire Correctional Facility, alleging that Thyng failed to protect Gebo from attacks by other inmates.*fn1 Thyng moves to dismiss the complaint on the ground that Gebo failed to exhaust available administrative remedies as required under the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a).
Thyng filed a motion to dismiss, presumably under Federal Rule of Civil Procedure 12(b)(6), which is decided based on the allegations in the complaint. See Eldredge v. Town of Falmouth, 662 F.3d 100, 104 (1st Cir. 2011). Because exhaustion under § 1997e(a) is an affirmative defense, the defendant bears the burden of showing that the plaintiff failed to exhaust, and the plaintiff is not required to plead facts pertinent to exhaustion. Cruz Berrios v. Gonzalez-Rosario, 630 F.3d 7, 11 (1st Cir. 2010) (citing Jones v. Bock, 549 U.S. 199, 216 (2007)). Therefore, an exhaustion defense cannot be decided based on the plaintiff's failure to allege facts sufficient to show exhaustion. See Cruz Berrios, 630 F.3d at 11.
In support of his motion to dismiss, Thyng filed materials extrinsic to the complaint, including affidavits and other evidence. Thyng has not addressed the discrepancy between the form of his motion and the materials he submitted or shown that the materials could be considered for purposes of a motion to dismiss. See Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009). "If, on a motion [to dismiss under Rule 12(b)(6)], 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." Fed. R. Civ. P. 12(d).
Therefore, exhaustion under § 1997a(e) must be addressed in this case through a motion for summary judgment. Thyng's motion to dismiss could be converted to one for summary judgment with notice to the parties and an opportunity to file additional materials to meet the summary judgment standard. To avoid confusion, however, Thyng's motion to dismiss will be denied without prejudice to allow him to file a properly supported motion for summary judgment under the requirements of Rule 56 and LR 7.1 and 7.2. Gebo will then have the opportunity to file his response, in accord with Rule 56 and LR 7.1 and 7.2.
For the foregoing reasons, the defendant's motion to dismiss (document no. 25) is denied without prejudice.
The defendant is afforded the opportunity to file a properly supported motion for summary judgment on or before January 31, 2012. The plaintiff will have thirty days from the date the motion is served to file a response as provided under LR 7.1(b).