United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
Correctional Institution (“ECI”) inmate Henry
Barksdale (“Barksdale), who is representing himself,
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
ECF No. 1.
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,  the adequacy of medical care, and the
issuance every six months of clothing and boots. ECF No. 4.
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. 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.
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).
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).
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
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.
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
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).
claim that Barksdale was transferred to ECI from the Western
Correctional Institution in November of 2012. ECF No.
18-4. 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.
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.
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.
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”
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.
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.
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.
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.
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. 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
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. 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 ...