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Aurel v. Kammauf

United States District Court, D. Maryland

June 22, 2016

MICH AUREL, #317239 Plaintiff,



         Mich Aurel, [1] the self-represented plaintiff, filed this civil rights action under 42 U.S.C. § 1983 against defendants, dietary staff at the North Branch Correctional Institution (“NBCI”), where Aurel is an inmate. Defendants have filed a motion to dismiss or, in the alternative, for summary judgment. ECF 19.[2] It is supported by a memorandum (ECF 19-1) (collectively, the “Motion”), and several exhibits. No opposition to the Motion was filed, and the time to do so has expired.[3] However, on January 8, 2016, Aurel filed a “motion” reiterating his claims that “for yrs” he has received incomplete kosher meals, and has not received sufficient amounts of salt, pepper, salad dressing, mayonnaise, relish, margarine, coffee, and fresh vegetables. ECF 24. I shall consider ECF 24 as an Opposition.[4]

         In addition, defendants have moved for reconsideration (ECF 21, “Motion to Reconsider”) of the Court’s Order (ECF 7) granting in forma pauperis status to Aurel.

         The court finds a hearing in this matter unnecessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, defendants’ Motion (ECF 19), construed as one for summary judgment, shall be granted. Defendants’ Motion to Reconsider shall be denied.

         I. Background

         Aurel alleges that his rights were violated when, as a member of the NBCI Jewish community, he was denied kosher meals on unspecified dates and was not provided condiments (salt, pepper, dressing, margarine, and mayonnaise), forcing him to “eat all the vegetables.” He further claims he has been discriminated against and “abused” by dietary staff. Aurel seeks monetary damages. ECF 1 at 3.[5]

         Parrish Kammauf is the Correctional Dietary Manager at NBCI and Michael Yacenech is the NBCI Correctional Dietary Officer Supervisor. ECF 19-1 at 1. In response to the Complaint, defendants state that a Statewide kosher food diet/menu was created for inmates of the Department of Public Safety and Correctional Services (“DPSCS”), after consultation with Rabbi Rachmiel Tobesman, who has determined that the current menu at NBCI “meets the tenants [sic] of the Jewish religion.” ECF 19-3, Decl. of Maximo-Sabundayo, Dietary Director of DPSCS, at 2. Defendants also note that the Rabbi has responded to Aurel’s concerns regarding his kosher diet. In a letter of June 4, 2014, the Rabbi assured Aurel that he has “checked the kosher kitchen facilities” at NBCI, and NBCI is in compliance with the requirements of a kosher kitchen, so as to satisfy the essential requirements of “Halacha” or “Jewish Law.”[6] ECF 19-4 at 2. And, as the Rabbi explained to Aurel in a letter of June 4, 2014: “Due to the complexities of kosher requirements, only a kitchen that provides a diet consisting of diary [sic]/vegetarian/fish can be maintained.” Id. Kammauf, the NBCI Dietary Manager, avers that, to the best of his knowledge, all kosher diets provided at NBCI in 2013, 2014, and 2015 were prepared and followed according to proper food standards. ECF 19-5, Kammauf Decl.

         Defendants also assert that a condiment is provided to inmates based on whether a condiment is listed for that meal according to the dietary menu. Inmates who wish to obtain alternative or extra condiments, not provided by the dietary department with a particular meal, may, if available, purchase the condiment through the commissary. ECF 19-3, Maximo-Sabundayo Decl. Moreover, in another letter from the Rabbi to Aurel, dated August 21, 2014, the Rabbi told Aurel: “The use of condiments such as salt, pepper, salad dressing and mayonnaise are kosher certified and are facility dietary issues and not kosher issues.” ECF 19-4 at 3.

         In addition, defendants have provided documentation to show that Aurel filed a number of grievances through the DPSCS’s administrative remedy procedure (“ARP”) regarding the alleged failure in 2013, 2014, and 2015 by DPSCS to provide him with a “complete” kosher diet or seasoning and dressing for his food.[7] ECF 19-2 at 2-20, 28-36, & 44-126. According to the Declaration of Scott Oakley, then the Executive Director of the Inmate Grievance Office (“IGO”), Aurel filed two grievances with the IGO alleging deficiencies with his Kosher diet. ECF 19-6, Oakley Decl. Both grievances were administratively dismissed by the IGO due to Aurel’s failure to properly exhaust the ARP process. Id. Therefore, defendants argue that Aurel did not properly pursue his claims to all levels of review, and thus he has failed to exhaust his administrative remedies. Accordingly, they contend that Aurel’s Complaint should be dismissed.

         II. 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 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). 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 v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).[8]

         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…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).

         Aurel has not filed an affidavit under Rule 56(d). In light of the foregoing, I am satisfied that it is appropriate to address the defendants’ motion as one for summary judgment, as this will facilitate resolution 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 law.” The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion: By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         “The party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings, ’ but rather must ‘set forth specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court should “view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witness’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002); see FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court’s “function” is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. Moreover, the trial court may not make credibility determinations on summary judgment. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black &. Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in the face of conflicting evidence, such as competing affidavits, summary judgment is generally not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility.

         Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then a dispute of material fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Id. at 252. And, “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         Because Aurel is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corporation v. Catrett, 477 U.S. 317, 323-24 (1986)).

         III. ...

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