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Payton v. Bishop

United States District Court, D. Maryland

September 26, 2016

LEVAR PAYTON, #411-397 Plaintiff
v.
WARDEN FRANK B. BISHOP, JR. Defendant

          MEMORANDUM

          Ellen L. Hollander United States District Judge

         Levar 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.[1] 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.

         I. The Factual Allegations

         A. Plaintiff

         Payton 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.[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 incarceration. Id.

         B. Defendant

         Defendant has submitted a legal memorandum and exhibits, from which the following is gleaned. Payton is housed in the disciplinary segregation unit at NBCI.[3] ECF 8-2 (Bishop Decl.) at ¶ 11. His religious preference is listed as Shi'a Islam. ECF 8-4 (Lamp Decl.) at ¶ 7.

         To 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 ¶ 5.

         Division of Correction policy categorically forbids disciplinary segregation prisoners from attending any congregate religious services. ECF 8-5 at 5, DCD 110-6 (VI)(O).[4] 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.

         Payton 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.

         Payton 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.

         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 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).[5]

         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 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, ...


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