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Aurel v. Mailroom North Branch

United States District Court, D. Maryland

July 21, 2016

MICH AUREL, #317239, Plaintiff,


          Ellen L. Hollander United States District Judge

         Mich Aurel, [1] a Maryland prisoner, filed an action under 42 U.S.C. § 1983 (ECF 1), [2]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.

         Defendants 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.[3] 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 expired.[4]

         The 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.

         I. Factual Background

         Aurel, who is self-represented, is incarcerated at NBCI in Cumberland, Maryland. He states that he is an indigent inmate hailing from Romania.

         Aurel 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. Id.

         Aurel 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, [5] 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.

         Defendants 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.

         In 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.

         On July 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.

         Defendants 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.

         An 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.

         The 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.

         The 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.

         Also on 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.

         On 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.

         Aurel 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.

         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 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).[6]

         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)); 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)).

         “[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); 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. at 14.

         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, because 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 ...

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