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Aurel v. Rose

United States District Court, D. Maryland

June 16, 2016

MICH AUREL, #317239, Plaintiff,
M.J. ROSE, Defendant.



         Mich Aurel, [1] the self-represented plaintiff, filed suit against defendant M. J. Rose, an office clerk assigned to the mailroom at the North Branch Correctional Institution ("NBCI"), where Aurel is an inmate. Rose has filed a motion to dismiss or, in the alternative, for summary judgment. ECF 11. It is supported by a memorandum (ECF 11-1) (collectively, the "Motion"), and several exhibits. No opposition has been filed to the Motion, and the time to do so has expired.[2] In ECF 13, Rose has also moved for reconsideration ("Motion to Reconsider") of the Court's Order (ECF 6) granting in forma pauperis status to plaintiff.

         The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, defendant's Motion (ECF 11), construed as a motion for summary judgment, shall be granted. But, I shall deny defendant's Motion to Reconsider (ECF 13).

         I. Background

         Aurel, a NBCI inmate, alleges that throughout 2015 his mail to courts, out-of-state and overseas family and friends, the media, legislators, lawyers, foreign embassies, and state agencies and administrators was "destroyed" by defendant. Aurel seeks $1, 000, 000, 000 in damages. ECF 1 at 3-5.[3]

         In response to the Complaint, defendant maintains that all incoming and outgoing mail is processed in accordance with approved policies and directives of the Maryland Department of Public Safety and Correctional Services ("DPSCS"). Rose asserts that at no time has she withheld, delayed, destroyed or failed to process Aurel's mail and that legal mail is logged for record-keeping purposes. ECF 11-3, Rose Decl.

         Defendant also alleges that there is no record that Aurel filed a grievance through the administrative remedy procedure ("ARP") regarding his mail, nor did he appeal an ARP decision to the Inmate Grievance Office ("IGO"). ECF 11-6, Ripps Decl.; ECF 11-7, Neverdon Decl. In particular, Christina Ripps, a Correctional Case Manager Specialist, explains that an inmate's appeal of the disposition of a grievance is sent to DPSCS headquarters. She has not located any appeal by Aurel for the year 2015. ECF 11-6 at 1. Moreover, Russell Neverdon, Sr., Executive Director of the Inmate Grievance Office, reviewed IGO records and located two grievance appeals filed by Aurel concerning the mail, but both were filed in 2014. ECF 11-7 at 1-2. As noted, this case concerns the handling of Aurel's mail in 2015. See ECF 1 at 3-4.

         Defendant also provided an "Individual ARP Index Report" for Aurel (ECF 11-5), which indicates that from January through November of 2015, Aurel filed 31 ARPs. But, not one of these grievances concerned Aurel's mail. Id. Therefore, defendant argues that Aurel's claims are barred for failure to exhaust administrative remedies.

         II. Standard of Review

         Defendant's 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. 12. 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). When, as here, the movant expressly captions its motion "in the alternative, " as one to dismiss or 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 v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[4]

         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. du Pont De Nemours and Co. v. Kolon Industries, 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))

         "[T]o justify a denial of summary judgment on the grounds that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.'" Scott v. Nuvell Fin. Servs., LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in original) (citation omitted). A non-moving party's Rule 56(d) request for additional discovery is properly denied "where the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment." Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 F.App'x. 274 (4th Cir.), cert. denied, 555 U.S. 885 (2008).

         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 ...

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