MEMORANDUM AND ORDER

STACI M. YANDLE, District Judge.

Before the Court is plaintiffs' motion to exclude or dismiss (Doc. No. 47). The plaintiffs seek a ruling in their favor on an affirmative defense alleging that they failed to exhaust administrative remedies. The affirmative defense was asserted in the Answer filed by defendants Salvador Godinez, C Thomas Holt, and Zachary Roeckeman on December 1, 2014 (Doc. No. 43). In support of their request, plaintiffs maintain that the defendants cannot meet their burden of proof on the affirmative defense due to the absence of evidence that those confined as sexually dangerous persons have access to an effective grievance procedure. A number of exhibits have been submitted in support of the motion. Because the Court considers information outside of the pleadings, plaintiffs' motion to exclude or dismiss will be evaluated as a motion for partial summary judgment. See Fed. R. Civ. P. 12(d). Pursuant to Local Rule, defendants' brief in response was due within 30 days. SDIL-LR 7.1(c). Alternatively, a cross motion in support of the exhaustion defense was due no later than February 20, 2015 (Doc. No. 46). Neither has been filed. The absence of a responsive brief or cross motion is deemed an admission of the merits of plaintiffs' request. Id.

IT IS ORDERED that the motion for partial summary judgment (Doc. No. 47) is GRANTED. At the conclusion of this case, judgment shall enter in favor of plaintiffs Charles Bone, Timothy Charles, Tony Harden, James G Howe, Jacob Kallal, and George Needs and against defendants Salvador Godinez, C Thomas Holt, and Zachary Roeckeman on affirmative defense number 2.

IT IS FURTHER ORDERED that plaintiffs' motion requesting a ruling (Doc. No. 53) is MOOT.

IT IS SO ORDERED.