United States District Court, D. Maryland
L. Hollander United States District Judge
Payton, a Maryland Division of Correction (“DOC”)
prisoner housed at North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland, filed a civil
rights actions under 42 U.S.C. § 1983 against Warden
Frank B. Bishop, Jr. Bishop has filed an unopposed
dispositive motion (ECF 8), supported by a memorandum (ECF
8-1) (collectively, the “Motion”) and
exhibits. No hearing is necessary to resolve the
motions. See Local Rule 105.6 (D. Md. 2016). For the
reasons stated below, defendant's Motion, construed as a
motion for summary judgment, shall be granted.
The Factual Allegations
provides little factual detail in his Complaint. He states
generally that he has been denied the opportunity to
participate in a religious group, that he has been denied
medication for hypertension, and that for two years he has
been denied his “meal preference” and is not
provided with dessert. ECF 1 at 2. He claims that defendant,
Warden Bishop, has failed to respond to his requests to
remedy these issues, and seeks damages and injunctive relief
mandating his release from solitary confinement and
has submitted a legal memorandum and exhibits, from which the
following is gleaned. Payton is housed in the disciplinary
segregation unit at NBCI. ECF 8-2 (Bishop Decl.) at ¶ 11.
His religious preference is listed as Shi'a Islam. ECF
8-4 (Lamp Decl.) at ¶ 7.
receive a religious diet, Payton - like all prisoners - must
fill out a religious diet application form. Id. at
¶ 4. This policy helps ensure that the prisoner is
seeking the religious dietary plan for sincerely held
religious reasons. Id. Plaintiff has not submitted a
request for a religious dietary plan. Id. at ¶
of Correction policy categorically forbids disciplinary
segregation prisoners from attending any congregate religious
services. ECF 8-5 at 5, DCD 110-6 (VI)(O). Payton may
request access to a chaplain and may worship in his cell.
Id. Furthermore, Chaplain Kevin Lamp is available to
accommodate disciplinary segregation prisoners of all faiths
by providing access to religious literature and materials,
volunteer clergy of their faith, religious forms/paperwork,
and holy day feasts. ECF 8-4 (Lamp Decl.) at ¶ 7.
does not allege that his meals violate his religious
practice, are nutritionally inadequate, that he is not being
served meals, or that he is required to have a medical diet;
Rather, he alleges that the meals served to him are not his
preference and do not contain dessert. ECF 1 at 2. This
allegation states no cognizable claim.
did not submit any of his complaints to the appropriate NBCI
personnel by filing an Administrative Remedy Procedure
(“ARP”) grievance. Instead, on February 22, 2016,
Payton filed a grievance raising his concerns about his
religious rights directly with the Inmate Grievance Office
(“IGO”). ECF 8-7 (Neverdon Decl. and attached IGO
appeal). The IGO dismissed this grievance on April 18, 2016,
concluding that Payton failed to demonstrate that he properly
pursued the ARP process before filing with the IGO, as he was
required to due under COMAR 12.07.01.04(B)(9)(a) and COMAR
12.07.01.06(B)(4). ECF 8-7 at 5-6.
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 8. 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, as
here, the movant expressly captions its motion “in the
alternative, ” as one to dismiss or 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. at 165-67.
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 Putneyv.
Likin, __ Fed.Appx. __, 2016 WL 3755783, at *4 (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, ...