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Defendants Bear Burden of Proving Non Exhaustion
Defendants moved to dismiss for non-exhaustion supported by a conclusory
affidavit stating that the plaintiff has not exhausted "without describing
which claims plaintiff failed to exhaust. Inasmuch as exhaustion is an
affirmative defense, defendants must raise and prove that plaintiff did not
exhaust administrative remedies." (771) Anyway, he did exhaust. …
affidavit stating that the plaintiff has not exhausted "without describing
which claims plaintiff failed to exhaust. Inasmuch as exhaustion is an
affirmative defense, defendants must raise and prove that plaintiff did not
exhaust administrative remedies." (771) Anyway, he did exhaust. …
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