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Barksdale v. Green

United States District Court, D. Maryland

August 1, 2016

HENRY BARKSDALE Plaintiff,
v.
WARDEN KATHLEEN GREEN DEPARTMENT OF PUBLIC SAFETY & CORR. SERVICES Defendants.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge.

         Eastern Correctional Institution (“ECI”) inmate Henry Barksdale (“Barksdale), who is representing himself, [1] filed an original and amended 42 U.S.C. § 1983 complaint for injunctive relief which relates to his confinement at ECI. ECF Nos. 1 & 9. In his original complaint, received for filing on April 16, 2015, Barksdale provided a laundry list of issues associated with the conditions at ECI.[2] ECF No. 1.

         Barksdale’s amended complaint for injunctive relief expounds on his allegations of unconstitutional conditions as to the receipt of mattresses and pillows, the unavailability of porta-potties or water coolers in the exercise yard or gymnasium, and the distribution of “adequate” food, [3] the adequacy of medical care, and the issuance every six months of clothing and boots. ECF No. 4.

         Defendants, by their counsel, have filed a motion to dismiss or, in the alternative, motion for summary judgment, accompanied by declarations and exhibits. ECF No. 18. No opposition has been filed to the motion to dismiss or for summary judgment, and the time to do so has expired.[4] Oral hearing is not needed to resolve the issues. See Local Rule 106.5 (D. Md. 2016). For the reasons to follow, Defendants’ motion, construed as a motion for summary judgment IS GRANTED and judgment will be entered in their favor.

         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 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 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 (4th Cir. 1998).

         Ordinarily, summary judgment is inappropriate “where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont, supra, 637 F.3d at 448-49. 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)). Particularly, “‘Rule 56(d) affidavits cannot simply demand discovery for the sake of discovery.’” Hamilton v. Mayor & City Council of Baltimore, 807 F.Supp.2d 331, 342 (D. Md. 2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20 (D. Md. Feb. 14, 2011)). “Rather, to 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 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).

         Barksdale 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.

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). Because plaintiff 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)).

         Barksdale, who seeks injunctive relief to ameliorate what he perceives to be unconstitutional conditions of confinement, must demonstrate: (1) by a “clear showing” that he is “likely to succeed on the merits” at trial, (2) he is “likely to suffer irreparable harm in the absence of preliminary relief, ” (3) “the balance of equities tips in his favor, ” and (4) “an injunction is in the public interest, ” as is required for injunctive relief. See Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20-24 (2008); see Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). The moving party must satisfy each of these requirements as articulated. Real Truth About Obama, Inc. v. Federal Election Com’n, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, 555 U.S.1089 (2010), reinstated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).

         DISCUSSION

         Defendants claim that Barksdale was transferred to ECI from the Western Correctional Institution in November of 2012. ECF No. 18-4.[5] In addressing Barksdale’s claims, Defendants make the following general observations. Division of Correction Directive (“DCD”) 175.0004 establishes guidelines and provides an approved list of over-the-counter (“OTC”) medications for all Division of Correction (“DOC”) facilities. There are currently 36 items on the list as the only commissary items approved for medical use. ECF No. 18-6.

         Defendants further maintain that DCD 245-5 governs inmate wage scales for different job assignments. This DCD indicates that inmate assignments do not normally extend beyond eight hours a days and forty hours per week; each assignment is classified into one of five pay categories: skilled, student, semi-skilled, craftsman, or job bank/unpaid; inmate pay scales are created for each level of skill and inmates, when assigned, are paid at the base wage for the assigned skill level; requests for inmate pay raises are accepted every year in June, and if approved, become effective July 1; pay raises are contingent upon the availability of appropriate funding; and if funding is unavailable, requests for pay raises are postponed and considered the following year. ECF No. 18-7.

         Defendants assert that ECI Institutional Directive 145.001.1 sets out an organized recreation and leisure time program for ECI inmates. ECF No. 18-8. They state that ECI policies attempt to ensure that all inmates have access to recreational programs, including leisure-time and outdoor activities, and to ensure that exercise areas are available in proportion to the inmate population and are maintained in good condition. The correctional officer in charge of ECI recreation submits an annual plan for replacement and renewal of equipment and an annual report including accomplishments and plans and goals for the following year. ECF No. 18-8. Activities and equipment at ECI include a recreation yard, which includes basketball courts, softball/baseball/football/soccer fields, a volleyball court, a weightlifting area, and horseshoes. In addition, ECI maintains a gymnasium that includes weightlifting, basketball, volleyball, handball, and pool and ping pong tables. Id. In 2015 “Evening Recreation” was created to ensure that adequate daylight was available to provide inmates the required recreation time. ECF No. 18-9.

         ECI Dietary Manager James White affirms by declaration that Barksdale “has not been on any special diets since being house here at ECI.” ECF No. 18-10. White further maintains that there are no records supporting a finding that expired food products are being served at ECI nor any complaints in reference to “saccharine-laced” foods. Id.

         Defendants provide DCD 175-1 and ECI Institutional Directive 175.0001.1, reflecting the policies and regulations governing the Inmate Welfare Fund and Use of Commissary. ECF No. 18-11 & ECF No. 18-12. In addition, they include a copy of the ECI Inmate Orientation Handbook, which discusses a variety of topics, including commissary, diets, recreation, programs and services, and the Maryland Correctional Enterprises (“MCE”). ECF No. 18-13.

         According to the ECI banking system records, as of October 14, 2015, Barksdale had a balance of $590.24 in his prison account and his account has consistently included payroll and commissary transactions. ECF No. 18-14; ECF No. 18-15; & ECF No. 18-16. The ECI Litigation Coordinator affirms that Barksdale maintains his employment status with the MCE and has not qualified as an indigent inmate eligible for welfare commissary. ECF No. 18-21.

         Policies governing inmate personal property are set out in directives and guidelines provided by Defendants. They state that it is ECI’s policy to allow inmates to retain a reasonable amount of personal clothing and valuables that do not pose a threat to the order and security of the institution and to ensure that space is provided for storing inmate personal property safely and securely. ECF No. 18-10; ECF No. 18-17; & ECF No. 18-18.

         Defendants provide the Institutional Directive governing Inmate Family Days. ECF No. 18-19. Although the Directive does not mention the prohibition against camera usage during Family Days as complained of by Barksdale, Defendants note that cameras are banned in the institution and the taking of photographs by visitors is not permitted. ECF No. 18-21, Switalski Decl.

         Defendants observe that in December of 2012, Barksdale was placed on segregation and went on a hunger strike, resulting in his missing seven meals as reported to medical staff. ECF No. 18-20, filed separately exhibit, pp. 89-91. Barksdale had a partial thyroidectomy ten years earlier and was placed on calcium. Id., p. 86. He refused to take his blood pressure medication throughout 2013, due to side effects and was twice referred for a mental health evaluation due to his non-compliance with his medication regimen.[6] He was found competent to make medical decisions. ECF No. 18-20, filed separately exhibit, pp. 47-86 & 109-116. On August 7, 2013, Barksdale was seen in the medical department for knee pain, claiming that he injured his knee in December of 2013, while jogging in the prison yard. Id., pp. 56-57. On January 30, 2014, a cardiovascular diet was ordered for Barksdale. He continued to refuse blood pressure medication, an eye examination, and an EKG. Id., pp. 37-46 & 105-108. Defendants state that Barksdale again was seen for knee pain in June of 2014 and was advised to stop running to decrease the knee pain. He indicated he intended to keep running. Id, pp. 33-36, 100-101, & 104. As of July, 2014, Barksdale remained non-compliant with his hypertension medication and failed to follow the cardiovascular diet ordered for him. Id., pp. 23-32 & 102-103.

         On November 5, 2014, Dr. Oteyza observed that Barksdale had been taking Lisinopril and Clonidine for the past two months for his hypertension. Amlodipine and HCTZ were added, although Barksdale’s prior non-compliance with the medication was noted.[7] He was to be seen for a follow-up appointment in three weeks. At that time, Barksdale reported that he had been 90% compliant with his medication regimen. Id., pp. 20-22. As of February 18, 2015, Barksdale reported that he continued to take his Lisinopril and Clonidine for his hypertension, but stopped taking the HCTZ because it was causing him headaches and palpations. Id., p. 15. In May of 2015, x-rays of the knee were conducted. They showed no joint effusion, no acute fracture, dislocation, or ...


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