United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Charles Johnson, the self-represented plaintiff, filed suit against defendants John S. Wolfe and Allen Gang, pursuant to 42 U.S.C. § 1983, alleging a wrongful prison classification. See ECF 1. Defendants have filed a motion to dismiss or for summary judgment ("Motion"), ECF 19, supported by several exhibits. Plaintiff has not responded. No hearing is necessary to resolve this Motion. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, defendants' Motion, construed as a motion for summary judgment, shall be granted.
Johnson is a Maryland prisoner incarcerated at Jessup Correctional Institution ("JCI"). Defendant Wolfe is the Warden and defendant Gang is the Chief of Security. ECF 1. Plaintiff alleges that he was once part of a Security Threat Group ("STG"). However, he claims that, since 2009, he has been "deafiliated" from the group. ECF 1 at 3. Nevertheless, he claims that every time that group is "involved in something" he gets punished. According to plaintiff, he has tried "to sign a deafiliation form" but his requests "fall on deaf ears." Id. For relief, plaintiff requests removal from the STG list and transfer to another facility. ECF 1.
According to defendants, plaintiff is a confirmed member of a prison gang known as Dead Man Incorporated ("DMI"). ECF 19-1 at 2; ECF 19-2, Ex. 1, Declaration of Lieutenant Ronel Legrand, at ¶ 5. Lieutenant Legrand works in intelligence at JCI and is responsible for validating and monitoring the activities of STGs. He has been employed by the Maryland Department of Public Safety and Correctional Services for about 13 years. ECF 19-2, ¶¶ 2, 3. Lieutenant Legrand is unaware of any attempts by plaintiff to renounce his affiliation with DMI. Id. ¶ 7. See also attachments to ECF 19-3, Declaration of Rolisa Carter, JCI Litigation Coordinator.
A prisoner in the Maryland Department of Corrections may request removal of his designation as a member of an STG by renouncing his membership in the group, completing an STG Renunciation Form, and successfully completing a formal debriefing process. Plaintiff has not notified the Intelligence Unit at JCI of his intent to renounce his membership in DMI. See ECF 19-2, Declaration of Lieutenant Legrand, 1 at ¶ 7. Nor has he filed any requests for administrative review regarding any alleged attempt by him to renounce his membership in DMI. ECF 19-4, Declaration of Correctional Officer Sergeant Shakeya Sellman, Administrative Remedy Coordinator at JCI, at ¶¶ 2, 5.
Standard of Review
Defendants' motion is styled as a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. ECF No. 19. A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F.Supp.2d 431, 436-37 (D. Md. 2011). Ordinarily, a court "is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss." Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings, pursuant to Rule 12(d). If the court does so, "the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d).
A court may not convert a motion to dismiss to one for summary judgment sua sponte, unless it gives notice to the parties that it will do so. See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998) (stating that a district court "clearly has an obligation to notify parties regarding any court-instituted changes" in the posture of a motion, including conversion under Rule 12(d)); Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) ("[A] Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for summary judgment until the district court acts to convert the motion by indicating that it will not exclude from its consideration of the motion the supporting extraneous materials."). However, when the movant expressly captions its motion "in the alternative" as one for summary judgment, and submits matters outside the pleadings for the court's consideration, the parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an obligation to notify parties of the obvious." Laughlin, 149 F.3d at 261.
A district judge has "complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it." 5C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.). This discretion "should be exercised with great caution and attention to the parties' procedural rights." Id. at 149. In general, courts are guided by whether consideration of extraneous material "is likely to facilitate the disposition of the action, " and "whether discovery prior to the utilization of the summary judgment procedure" is necessary. Id. at 165-67.
Ordinarily, summary judgment is inappropriate "where the parties have not had an opportunity for reasonable discovery." E.I. de Nemours and Co. v. Kolon Indus., Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). However, "the party opposing summary judgment cannot complain that summary judgment was granted without discovery unless that party has made an attempt to oppose the motion on the grounds that more time was needed for discovery.'" Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the non-movant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, "for specified reasons, it cannot present facts essential to justify its opposition, " without needed discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit requirement of former Rule 56(f)).
If a non-moving party believes that further discovery is necessary before consideration of summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because "the failure to file an affidavit... is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.'" Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving party's failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling that is obviously premature. Although the Fourth Circuit has placed "great weight'" on the Rule 56(d) affidavit, and has said that a mere "reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '" the appellate court has "not always insisted" on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an affidavit may be excused "if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary" and the "nonmoving party's objections before the district court served as the functional equivalent of an affidavit.'" Id. at 244-45 (internal citations omitted).
Plaintiff has not filed an affidavit under Rule 56(d). Moreover, I am satisfied that it is appropriate to address defendants' motion as one for summary judgment, because this will facilitate disposition of the case.
Summary judgment is governed by Fed.R.Civ.P. 56(a), which provides in part: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of ...