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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID L. KING, No. CIV S-04-2233-GEB-CMK

Plaintiff, 

vs. ORDER

D.L. RUNNELS, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil

rights action pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motion for

discovery (Doc. 11) and defendants’ motion to dismiss (Doc. 12).

In his complaint, plaintiff claims that defendants discriminated against him during

the course of classifying him for housing at a particular custody level. Specifically, plaintiff

alleges that eight extra points were added to his classification score because defendants refused to

consider certain evidence and considered other evidence that was too old. Plaintiff asserts that,

but for this conduct, he would have been eligible to be housed at a lower security facility. Plaintiff

seeks injunctive relief only, in the form of an order directing defendants to reduce his

classification score by the disputed eight points. 

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As to plaintiff’s motion for discovery, plaintiff simply states that he would like the

court to direct defendants to produce various documents. The record does not, however, reflect

that plaintiff ever served formal discovery requests, and plaintiff does not attach any such

discovery requests to his motion. Therefore, the motion is premature and will be denied as such.

As to defendants’ motion to dismiss, in their reply to plaintiff’s opposition,

defendants state that plaintiff’s classification level was re-calculated on August 23, 2005, to a

score of 51. Defendants state that this would entitle plaintiff to be housed in a Level III facility

and that plaintiff has been recommended for transfer to such a facility in Folsom, California. 

Given that the gravamen of plaintiff’s complaint is that he was improperly classified to a Level IV

facility instead of a Level III facility, and because plaintiff seeks only injunctive relief in the form

of an order directing re-classification to a Level III facility, it appears that plaintiff’s claim may

now be moot. However, in order to conclude that the claim is moot, the court would need to first

consider the evidence of plaintiff’s re-classification, which defendants attach to their motion to

dismiss in the form of a declaration and supporting exhibits. 

Generally, when resolving a motion to dismiss, the court may not consider

materials outside the complaint and pleadings. See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.

1994); Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998). If materials outside the pleadings

are considered, then the motion to dismiss is converted to a motion for summary judgment. See

Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Here, because defendants cite to

materials outside the pleadings in support of their motion, the court hereby converts the motion to

dismiss into a motion for summary judgment. The court hereby gives the parties notice of such

conversion and will provide plaintiff an opportunity to present evidence, if any, in opposition to

the motion. See id. at 934-35. Moreover, because plaintiff is a prisoner proceeding pro se,

plaintiff is hereby reminded of the court’s advisories pursuant to Rand v. Rowland, 154 F.3d 952

(9th Cir. 1998) (en banc), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), as set forth in

the court’s May 27, 2005, order. See Anderson, 86 F.3d at 935.

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Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff’s motion for discovery is denied without prejudice as premature;

2. Defendants’ motion to dismiss, filed on August 22, 2005, is converted into

a motion for summary judgment; and

3. Plaintiff may file an opposition, along with supporting evidence, to

defendants’ August 22, 2005, motion within 30 days of the date of service of this order.

DATED: October 12, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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