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Savage v. Gahler

United States District Court, D. Maryland

November 1, 2016

LEONARD MICHAEL SAVAGE, #132-625 Plaintiff
v.
JEFFREY R. GAHLER, Sheriff Defendant

          MEMORANDUM

          JAMES K. BREDAR, UNITED STATES DISTRICT JUDGE

         Leonard 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.[1] Memorandum of September 13, 2016, ECF 30.

         Gahler has filed a dispositive motion (ECF No. 17) that is opposed by Savage. (ECF 25 and 26).[2] 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.

         Standard of Review

         Gahler's 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).

         In 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).

         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, 167.

         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. 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).

         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).

         Plaintiff 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.

         Summary 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.

         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 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)).

         Plaintiff's Allegations

         In his 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.)

         Savage 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.[3] (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 counsel stating:

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 “Exhibit #2.”)

         Savage 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 and inspected.
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 requesting personnel.

(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 ...


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