KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on
Defendants bring the Motion pursuant to Fed. R. Civ. P. 12(b)(6). [#215] at 1. Defendants make two primary arguments: first, that Plaintiff's official capacity claims seeking injunctive relief should be dismissed as moot, id. at 4, and second, that Plaintiff has failed to properly exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), id. at 6. In support of their assertion that Plaintiff failed to exhaust, Defendants include as exhibits to their Motion a Declaration of Clay C. Cook, the Senior Attorney Advisor at the Federal Correctional Complex in Florence, Colorado; print-outs of Plaintiff's Inmate Data, Inmate History, and Administrative Remedy Record; and copies of four administrative remedy forms submitted by Plaintiff and the corresponding responses. See [#215-1].
"[F]ailure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). "The burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant." Roberts v. Barreras, 484 F.3d 1236, 1241 (10th Cir. 2007). "Dismissal under § 1997e(a) for failure to exhaust administrative remedies therefore cannot usually be made on pleadings without proof." Culp v. Williams, No. 10-cv-00886-CMA-CBS, 2011 WL 1597953, at *2 (D. Colo. Apr. 6, 2011) (citations omitted).
The affirmative defense of failure to exhaust administrative remedies is not a challenge to the Court's subject matter jurisdiction, and is therefore not subject to dismissal pursuant to Rule 12(b)(1). See Ayyad v. Gonzales, No. 05-cv-02342-WYD-MJW, 2007 WL 324564, at *1 (D. Colo. Jan. 30, 2007) (citing Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), rev'd on other grounds by Jones v. Bock, 549 U.S. 199 (2007)). Further, the exhaustion issue is not subject to dismissal as a pleading deficiency pursuant to Rule 12(b)(6), Torres v. O'Neal, No. 10-cv-00236-PAB-KLM, 2011 WL 782724, at *1 n.1 (D. Colo. Jan. 14, 2011), particularly where, as here, the Plaintiff indicated in his Amended Complaint that he exhausted available administrative remedies.
Furthermore, the Court notes that the Certificate of Service attached to Defendants' Motion indicates that the Motion was served on Plaintiff at the wrong address. See [#215-1] at 15. The Certificate of Service shows that the Motion was mailed to Plaintiff at his previous place of incarceration in Florence, Colorado. Id. On February 29, 2012, Plaintiff submitted a notice that the name he uses for mail and his physical address have been changed. See [#201]. Defendants are thus instructed to ensure that any future filings are served on Plaintiff at the correct address, which is also noted in the caption on the docket.
Although the Court could convert the Motion to Dismiss to a motion for summary judgment for purposes of resolving Defendants' exhaustion argument, it declines to do so here in light of the inherent deficiencies in the Motion, and the delay such conversion would cause (in order to allow notice and additional briefing).
IT IS HEREBY
IT IS FURTHER
IT IS FURTHER