Opinion
Civil Action 4:03-CV-1355-Y.
August 25, 2004
On August 10, 2004, defendant Dee Anderson, Sheriff of Tarrant County, Texas, filed a motion to dismiss and memorandum brief, asserting as grounds for relief lack of exhaustion of administrative remedies, failure to state a claim upon which relief may be granted, and qualified immunity from suit. As is well established in this Court, while the affirmative defense of qualified immunity was previously permitted to be brought to the Court's attention via a Rule 12(b)(6) motion to dismiss, Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995), now requires a defendant to assert such immunity via the filing of an answer. Thus, Anderson's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) on the basis of qualified immunity will be dismissed without prejudice to Anderson's right to assert that defense via a later motion under Federal Rules of Civil Procedure 12(c) or 56.
Schultea, 47 F.3d at 1431-34. In addition to the Fifth Circuit's recognition, in Schultea, of the Supreme Court's Gomez and Siegert decisions holding qualified immunity is a defense which the defendant must plead, its express adoption of the use of a Rule 7 reply also indicates that a defendant is required to assert qualified immunity in an answer. Schultea, 47 F.3d at 1431-33 (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980) and Siegert v. Gilley, 500 U.S. 226, 231 (1991)). Federal Rule of Civil Procedure 7(a) provides that a Court may "order a reply to an answer or a third-party answer." FED. R. CIV. P. 7(a) (emphasis added). The rule certainly does not countenance a "reply" to a motion. Cf. Bigelow v. RKO Radio Pictures, 16 F.R.D. 15, 17 (N.D. Ill. 1954) (distinguishing the portion of Rule 7(a) on "Pleadings" from Rule 7(b) on "Motions," and noting that a "motion is not a pleading"). Thus, after Schultea, it appears to this Court that a Rule 12(b)(6) motion to dismiss on the ground of qualified immunity is no longer viable. Schultea, 47 F.3d at 1430 ("[W]e will no longer insist that plaintiff fully anticipate the defense in his complaint at the risk of dismissal under Rule 12"); see also Todd v. Hawk, 72 F.3d 443, 446 (5th Cir. 1995). This does not mean, of course, that a defendant may not move under Rule 12(b)(6) to dismiss for failure to state a claim based on the plaintiff's failure to plead a violation of his federal constitutional or statutory rights — even though that ground may also be a component of the affirmative defense of qualified immunity.
Accompanying Anderson's motion to dismiss on the other grounds for relief — lack of exhaustion and failure to state a claim upon which relief may be granted — defendant filed an appendix that included the declaration of Chief Deputy Roy Knowles along with several attached pages of records of Tarrant County, Texas, relating to inmate Johnson and the filing of grievances at the Tarrant County jail. Further, Anderson has supported his motion with documents that include information about the usages and side effects of two particular medications prescribed for plaintiff Johnson in an effort to contradict the claims in Johnson's complaint. (Mot. for Summ. J. at 18-19, Appendix D.) Because Anderson has submitted such matter outside the pleadings in support of his contentions that the plaintiff has not exhausted administrative remedies and has not stated a claim upon which relief may be granted, the Court determines that it must treat the motion in this particular case as one for summary judgment that is to be resolved in the manner set forth in Federal Rule of Civil Procedure 56.
See FED R. CIV. P. 12(b).
It is therefore ORDERED that Anderson's motion to dismiss on the basis of qualified immunity be, and is hereby, DISMISSED without prejudice to his right to later assert such defense in a motion under Rule 12(c) or 56.
It is further ORDERED that the remainder of the motion to dismiss be, and is hereby, construed as a motion for summary judgment under Federal Rule of Civil Procedure 56.
It is further ORDERED that Plaintiff shall have twenty (20) days from the date of this order to present a response, brief in support, and any matters in contest to the defendant's motion for summary judgment in accordance with Rule 56(e).