United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Aurel,  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. In ECF 13, Rose has also moved for
reconsideration ("Motion to Reconsider") of the
Court's Order (ECF 6) granting in forma pauperis status
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).
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
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.
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.
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.
Standard of Review
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).
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.
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))
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.
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 ...