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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

TOBY MASSE,

Plaintiff,

v.

SIDNEY CLARK, et al.,

Defendants.

Case No. C06-5375 RBL/KLS

ORDER RE-NOTING

DEFENDANTS’ MOTION TO

DISMISS AS MOTION FOR

SUMMARY JUDGMENT

This civil rights action has been referred to United States Magistrate Judge Karen L. Strombom

pursuant to 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Presently pending before the Court is

Defendants’ motion to dismiss (Dkt. # 21). Defendants move to dismiss Plaintiff’s complaint as barred by

the statute of limitations. In his response to the motion to dismiss (Dkt. # 23), Plaintiff refers to his

affidavit and numerous exhibits. Plaintiff argues that his claims were tolled from May 2001 to May 2003

because he was incapacitated by mental illness, and that he is entitled to statutory tolling from July 2003 to

January 2005, when his previous 1983 claim was before this Court. None of the exhibits were made part

of the Court’s record.

Generally speaking, the Court may not consider any material beyond the pleadings in ruling on a

motion to dismiss. Rule 12(b) of the Federal Rules of Civil Procedure provides in relevant part:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading

to state a claim upon which relief can be granted, matters outside the pleading are

presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56, and all parties shall be given

reasonable opportunity to present all material made pertinent to such a motion by Rule

56.

Case 3:06-cv-05375-RBL Document 24 Filed 12/29/06 Page 1 of 2
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ORDER

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A motion to dismiss made under Fed. R. Civ. P. 12(b)(6) must be treated as a motion for summary

judgment under Fed. R. Civ. P. 56 if either party submits materials outside the pleadings in support of or

opposition to the motion, and the court relies on those materials. Fed. R. Civ. P. 12(b); See also Jackson v.

Southern California Gas Co., 881 F.2d 638, 643 n. 4 (9th Cir.1989) (“The proper inquiry is whether the

court relied on the extraneous matter.”). Failure to treat the motion as one for summary judgment would

constitute reversible error. See Bonilla v. Oakland Scavenger Co., 697 F.2d 1297, 1301 (9th Cir. 1982);

Costen v. Pauline's Sportswear, Inc., 391 F.2d 81, 84-85 (9th Cir. 1968). 

Plaintiff relies on materials outside the pleadings to support his claim that his claims are not time

barred. Conversely, Defendants rely on the materials submitted by Plaintiff to illustrate that Plaintiff fully

understood the nature of all proceedings and events that occurred well before the time limitation. As the

Court was not provided the same materials, it is unable to determine whether it is necessary to rely on the

extraneous matter to determine the issue of whether Plaintiff’s claims are time-barred.

Accordingly, the Clerk of the Court is directed to re-note Defendants’ motion to dismiss (Dkt. #

21) as a motion for summary judgment for February 9, 2007. If Plaintiff wishes the Court to consider his

affidavit and exhibits in opposition to the motion for summary judgment, he must timely file and serve them

not later than 4:30 p.m. on the Monday immediately preceding the Friday appointed for consideration of

the motion. 

DATED this 29th day of December, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05375-RBL Document 24 Filed 12/29/06 Page 2 of 2