United States District Court, D. Maryland
K. BREDAR, UNITED STATES DISTRICT JUDGE
Michael Savage, presently detained at the Harford County
Detention Center (“HCDC”), filed a civil rights
action pursuant to 42 U.S.C. § 1983 seeking injunctive
relief. After several allegations were examined and
dismissed, the case has proceeded against Harford County
Sheriff Jeffrey R. Gahler solely to determine whether
Savage's outgoing legal mail is copied and sent to the
State's Attorney. Memorandum of September 13, 2016, ECF 30.
has filed a dispositive motion (ECF No. 17) that is opposed
by Savage. (ECF 25 and 26). No hearing is needed to resolve
this case. See Local Rule 105.6 (D. Md. 2016). For
reasons discussed below, Gahler's motion, construed as a
motion for summary judgment, shall be granted and
Savage's request for injunctive relief shall be denied.
motion is styled as a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) or, in the alternative, for summary
judgment under Rule 56. 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, 261 (4th Cir. 1998).
contrast, a court may not convert a motion to dismiss to one
for summary judgment sua sponte, unless it gives
notice to the parties that it will do so. See
Laughlin, 149 F.3d at 261 (stating that a district court
“clearly has an obligation to notify parties regarding
any court-instituted changes” in the posture of a
motion, including conversion under Rule 12(d)); Finley
Lines Joint Protective Bd. Unit 200 v. Norfolk So.
Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A]
Rule 12(b)(6) motion to dismiss supported by extraneous
materials cannot be regarded as one for summary judgment
until the district court acts to convert the motion by
indicating that it will not exclude from its consideration of
the motion the supporting extraneous materials.”);
see also Fisher v. Md. Dept. of Pub. Safety & Corr.
Servs., Civ. No. JFM-10-0206, 2010 WL 2732334, at *3,
2010 U.S. Dist. LEXIS 68772, at *8-10 (D. Md. July 8, 2010).
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, 167.
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. 2012). 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)). Notably,
“‘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, Civ.
No. DKC-08-2586, 2011 WL 665321, at *20, 2011 U.S. Dist.
LEXIS 14266, at *62 (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. 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). Thus, the Court
is satisfied that it is appropriate to address the
defendant's motion as one for summary judgment.
judgment is governed by Rule 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 former 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)).
initial Complaint, Savage stated that “Harford County
Detention Center controls all legal mail, incoming and
outgoing…” and that he arranges for his legal
mail to be “smuggled out” to ensure it is not
lost or subjected to tampering. (ECF 1 at 1.) He supports
this allegation with an affidavit by fellow detainee Donald
G. Rembold, who claims his (Rembold's) outgoing mail and
requests for legal research were given to the prosecutor.
(ECF 1-7, Rembold Affidavit, ¶¶ 2-3.) Detainee
Jeffrey Wayne Lycliter also has submitted an affidavit,
stating his “actual court documents…has [sic]
been altered, manufactured…the changes in part were
made due too [sic] …the opening and tamper[ing] with
my mail.” (ECF 1-8, Lycliter Affidavit, ¶ 2.)
further supports his claim by implying that his requests for
docket entries sent to the Clerk of Court in Harford County
were ignored because they never were received. (ECF 26 at pp.
2-3.) He provides a copy of a Motion to Compel Discovery sent
to the prosecutor which received no response. (ECF 20-1.)
Savage also provides a copy of a letter to him from his trial
DO NOT use the Detention Center's telephone to
discuss the case, write letters to anyone regarding your
case, or discuss the case with any visitors other than
representatives of my Office. Your telephone calls, mail and
visitor logs are being monitored by Law Enforcement. Anything
you say will be used against you.
(ECF 26-2) (emphasis and bold in original). Savage infers
that Gahler has known of the defective mail policy since soon
after taking office in 2013 and that Gahler approved a
revision of the HCDC rules and regulations on July 27, 2015.
(ECF 26-1 at 6, referencing ECF 25-1 at 1, noted by Savage as
also references changes to inmate mail policy made effective
August 1, 2016:
Outgoing Inmate Mail
Outgoing mail may be sealed by the inmate and may be opened
Personnel may open and inspect the mail if there is a
potential threat to the order and security of the facility or
if the mail is being used in furtherance of illegal activity.
Attorney-client privileged mail shall not be opened.
If requested by the investigating agency, the contents of the
outgoing mail shall be photocopied and forwarded to
(ECF 25-1 at p. 2, referenced as Exhibit #3.) Savage notes
that on one occasion, an item of legal mail was returned to
him with postage due, but asserts that the postage was proper
at the time he submitted the envelope. (ECF 25-2 at pp. 1,
5.) The item was re-mailed one day later. (ECF 25-2 at p. 1.)
He indicates he never received a copy of the inmate rules
and, thus, did ...