United States District Court, D. Maryland
L. Hollander United States District Judge
Aurel,  a Maryland prisoner, filed an action under
42 U.S.C. § 1983 (ECF 1), which he later supplemented. ECF
10. He has sued the Mail Room of the North Branch
Correctional Institution (”NBCI”) as well as
NBCI; former Warden Frank Bishop; former Assistant Warden
Richard Miller; Lt. Calvin Jones; Sgt. Robert Harris; and
C.O. II Scott Beeman.
have filed a motion for reconsideration (ECF 21) as to this
Court’s decision to grant in forma pauperis status to
plaintiff. See ECF 5. In addition, defendants have
filed a renewed motion to dismiss or, in the alternative, for
summary judgment. ECF 22. The dispositive motion is supported by
a memorandum (ECF 22-1) (collectively, the
“Motion”), and several exhibits. No opposition
has been filed to the Motion and the time to do so has
court finds a hearing in this matter is unnecessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
that follow, defendants’ Motion, construed as a motion
for summary judgment, shall be granted. And, I shall deny
defendants’ motion for reconsideration.
who is self-represented, is incarcerated at NBCI in
Cumberland, Maryland. He states that he is an indigent inmate
hailing from Romania.
claims that in April 2014, the NBCI mailroom refused to send
outgoing mail to family and friends in Romania and Spain, to
officials in the Department of Justice of Romania, to the
President of Romania, and to the Romanian television media.
ECF 1 at 3. Further, Aurel alleges that from April 20, 2014
to August 23, 2014, the NBCI mailroom refused to send all of
his mail due to insufficient funds by
“destroying” it. He asserts that he is being
denied mail, and telephone contact with family and friends
and that he has been subject to “harassment, ”
“manipulation, ” “mental abuse, ” and
“discrimination” by all NBCI staff on the basis
of his race. Aurel seeks $30, 000, 000.00 in damages.
filed a separate 42 U.S.C. § 1983 complaint on September
23, 2014, which has been construed as a supplemental
complaint to this original action. See ECF 10. In
the supplemental complaint,  Aurel alleged that on July 1,
2014, NCBI property officers refused to mail his property to
his family in Romania. ECF 10 at 3. He sought the award of
$5, 000.00 in damages. Id.
assert that Aurel filed ninety-six administrative remedy
procedure (“ARP”) grievances between December 2,
2013 and October 6, 2015, of which ten related to
Aurel’s alleged inability to communicate by either
telephone or mail. ECF 22-3 at 2-6. None of those ARPs were
found meritorious. Id. Defendants further assert
that Aurel appealed one of those ARPs to the Commissioner of
Correction, who found it to be without merit. ECF 22-4,
Declaration of Christina Ripps.
addition, defendants maintain that Aurel filed an ARP,
alleging that Lieutenant Whitacre threatened, harassed, and
mentally abused him. ECF No. 22-3 at 4. It was dismissed for
procedural reasons because Aurel failed to resubmit the ARP
to specify how he was threatened and to provide examples of
how he was mentally abused and harassed. Id.
1, 2014, Aurel was called to the NBCI property room to make a
disposition of personal property that was confiscated as
either contraband or excessive according to Division of
Correction directives. ECF 22-5, Declaration of Sgt. Robert
Harris. He chose to destroy various personal items (primarily
clothing, linens, hygiene items, and paint) and to mail a
bracelet, class ring, and key chain to Romania. The items
designated for disposition were placed in a dumpster and
destroyed that day. ECF 22-7, Declaration of Scott Beeman. As
requested by Aurel, several items were mailed to Romania on
July 2, 2014. ECF 22-5, Harris Decl.; ECF 22-6, Declaration
of J. Gary Sindy, and attachments. Two days later, on July 4,
2014, Aurel wrote a letter to NBCI’s Assistant Warden,
Richard Miller, indicating that he now wished to mail the
items that he had selected for construction. ECF 22-5 at 1.
On July 10, 2014, Harris spoke with Aurel and explained that,
with Aurel’s consent, the items had been destroyed and
thus were not available for mailing. Id. Defendant
Jones, the supervisor of the NBCI property room, avers that,
to the best of his knowledge, all NBCI property room
personnel followed Department of Public Safety and
Correctional Service’s policies and procedures. ECF
22-8, Declaration of Calvin Jones.
further claim that throughout 2014, Aurel sent and received
multiple pieces of mail. ECF 22-9 at 1-10, Declaration of
Mary Jane Rose, and attachments. Packages were sent on at
least eight different occasions between April 23, 2014 and
August 23, 2014, including the mailing on July 2, 2014, of
Aurel’s class ring, silver bracelet, and key chain to
Romania. ECF 22-6 at 2-3.
officer with the NBCI Intelligence Department (which deals
with inmate telephone calls) avers that Aurel “has
access to the inmate phone system.” ECF 22-10,
Declaration of David Barnhart. Aurel made one phone call
between January 2014 and the date of the Barnhart
Declaration, October 20, 2015, and it “looked like an
international number.” Id.
former and current Executive Directors for the Inmate
Grievance Office (“IGO”) maintain that Aurel has
filed a number of IGO grievances, several of which are
relevant to the claims raised in this case. ECF 22-11,
Declaration of Scott Oakley, dated January 16, 2015; ECF
22-12, Declaration of Russell Neverdon, Sr., dated Oct. 6.
2015. Defendants argue that Aurel did not properly exhaust
his administrative grievances with the Inmate Grievance
Office as to the issues raised in his § 1983 complaint.
first grievance, IGO No. 20140858, was filed on April 18,
2014, as an appeal from the disposition of ARP-NBCI-0862-14,
in which Aurel complained about the performance of his case
manager, Mr. Herbolt. ECF 22-11 at 1. Aurel alleged that his
case manager denied him emergency contact with the Romanian
Ambassador in the District of Columbia. ECF 22-12, Neverdon
Decl., at 2. The IGO dismissed this appeal on June 17, 2014,
because Aurel failed to properly exhaust the ARP process.
Id.; see also ECF 22-11 at 2.
April 18, 2014, Aurel filed IGO No. 20140859, as an appeal
from ARP-NBCI-1057-14, in which Aurel complained that
correctional officers denied him ARP forms. ECF 22-11 at 2.
The grievance was administratively dismissed on June 17,
2014, for failure to exhaust. Id.
September 4, 2014, Aurel filed IGO No. 20141909, as an appeal
of ARP-NBCI-2037-14. He alleged that Property Officer Harris
refused to mail certain personal property to someone to
Romania. See ECF 22-11 at 2; ECF 22-12 at 2. This
grievance was administratively dismissed by the IGO on
January 9, 2015, due to Aurel’s failure to properly
exhaust the ARP process. ECF 22-11 at 2; ECF 22-12 at 2.
filed IGO No. 20142216 on October 14, 2013. It was an appeal
of ARP-NBCI-2496-14, in which Aurel alleged that the NBCI
mailroom staff were not sending Aurel’s outgoing mail
addressed out of country, at the State’s expense,
although Aurel lacked sufficient funds. ECF 22-11 at 3. This
grievance was pending as of October 2015. See ECF
22-11 at 3. But, it has since been dismissed. ECF 22-12 at 2.
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 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). Generally, 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). But, 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). 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 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.
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)); see Putney v. Likin,
__F.3d __, No. 14-3882, slip op. at 13 (4th Cir. July 14,
2016). 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. 885 (2008).
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.
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); see also Putney, slip
op. at 14; Nader v. Blair, 549 F.3d 953, 961 (4th
Cir. 2008). 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.’” Harrods, 302 F.3d at 244-45
(internal citations omitted). Moreover, “[t]his is
especially true where, as here, the non-moving party is
proceeding pro se.” Putney, slip op.
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,
because this will facilitate resolution of the case.
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 ...