United States District Court, D. Maryland
L. Hollander United States District Judge.
Khalid Shamsud'Diyn, a self-represented inmate at Western
Correctional Institution (“WCI”), filed a civil
rights action under 42 U.S.C. § 1983 against five
defendants, in both their official and individual capacities:
Keith Lyons, Warden of Jessup Correctional Institution
(“JCI”), and JCI Officers Robert Jordan, Brandon
Barnett, Reginald Turner, and Jacqueline Proctor. ECF 1. In
particular, plaintiff alleges a violation of his rights under
the Eighth Amendment, arising out of an incident on September
19, 2015. Id. Pursuant to a court Order (ECF 2),
plaintiff filed a supplement to his Complaint. ECF 4.
have filed a motion to dismiss or, in the alternative, for
summary judgment. ECF 22. It is supported by a memorandum
(ECF 22-1) (collectively, the “Motion”) and
several exhibits. Plaintiff opposes the motion (ECF 26,
“Opposition”), and defendants have filed a reply.
ECF 29. Shamsud'Diyn submitted his own
declarations with his Complaint and his Opposition, under
penalty of perjury, pursuant to 28 U.S.C. § 1746.
See ECF 1 at 8; ECF 26 at 16.
Motion is ripe for disposition, and no hearing is necessary
to resolve it. See Local Rule 105.6. For the reasons
outlined below, the court will grant the Motion in part and
deny it in part.
Order of April 18, 2016 (ECF 25), I denied plaintiff's
motion for counsel, without prejudice. See ECF 21.
However, in light of my ruling on the Motion, I will
reconsider ECF 21 and grant Shamsud'Diyn's motion for
appointment of counsel.
September 19, 2015, Turner and Proctor escorted
Shamsud'Diyn from his cell to receive his medication. ECF
4. According to Shamsud'Diyn, Proctor was not assigned to
his tier, the D-tier, but assisted in the escort to confront
him about a complaint that he had filed against her on
September 14, 2015. ECF 4 at 3. Shamsud'Diyn, who was
handcuffed, was in a wheelchair because his left foot was in
a brace, and his left wrist was wrapped with an ace bandage
as a result of surgery that took place earlier in September.
ECF 4 at 4. Plaintiff claims that, when he refused to discuss
his complaint against Proctor, she sprayed pepper spray
directly into his right eye, while Turner stood by and did
nothing. ECF 4 at 5. Jordan took plaintiff to the medical
unit after the incident. ECF 4 at 4. Plaintiff claims that he
heard Jordan ask Turner, “what did [Officer Proctor] do
this time?” ECF 4 at 5. Further, Shamsud'Diyn
claims that Lyons transferred him to Western Correctional
Institution in retaliation for bringing suit, where he
remains, despite the presence of known enemies at that
institution. Plaintiff seeks injunctive and declaratory
relief as well as money damages. ECF 4 at 5.
present a different version of events. Proctor avers that on
September 19, 2015, Shamsud'Diyn was on disciplinary
segregation status and confined to a single cell. Proctor
Decl., ECF 22-3, ¶ 7. Proctor avers that she reported to C
wing, B Building at about 1:50 p.m. to assist Turner with
escorting Shamsud'Diyn to the medical unit to receive his
medication Id. at ¶ 8; see also
“Officer's Use of Force Incident Report, ”
ECF 22-3 at 6. Shamsud'Diyn, wearing a white t-shirt and
baggy shorts, exited his cell in a wheelchair. ECF 22-3 at 6;
ECF 29-1, DVD of tier. After Proctor wheeled Shamsud'Diyn
down the hall, she decided to return Shamsud'Diyn to his
cell so he could dress in the required orange segregation
jumpsuit before leaving the tier. ECF 22-3 at
When plaintiff was told that he needed to change his clothes,
Shamsud'Diyn stood up from his wheelchair, cursed, and
threatened to assault Proctor, lunging at her with his fists.
Proctor responded by firing a one or two second burst of
pepper spray. ECF 22-3 at 4; ECF 22-2, ¶¶ 10-13;
ECF 22-2 at 3. Shamsud'Diyn walked back to his cell. ECF
29-1, DVD. Proctor informed Jordan of the incident, and
Jordan and Barnett entered the tier and escorted
Shamsud'Diyn to the medical unit for treatment. ECF 22-2
at 6. Turner denies Shamsud'Diyn's claim that, after
the incident, Jordan then asked him, “What did she
[Officer Proctor] do this time?” Id. ¶
Nurse (“RN”) Mariama Coker found Shamsud'Diyn
oriented to name, place, date, time, and situation. ECF 22-4
at 1 (Simmons Decl.); ECF 22-4 at 2 (record of
plaintiff's nurse visit on September 19, 2015). Coker
found no swelling, bruising, or open areas on the skin, he
was provided with boxes of milk, which he used to wash his
face and eyes. ECF 22-4 at 2. Shamsud'Diyn was provided
two additional boxes of milk to take to his cell.
Id. Coker noted that Shamsud'Diyn was calm and
relieved from any burning sensation at the time he was
returned to his cell an hour later. Id. During
treatment, Shamsud'Diyn admitted to Coker that he was
attempting to get up from his wheelchair to pull up his pants
prior to being sprayed. Id.
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. 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, ”
but “[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); see Adams Housing,
LLC v. The City of Salisbury, Maryland, ___ Fed.
App'x ___, No. 15-2589, slip op. at 7 (4th Cir. Nov. 29,
2016) (per curiam). However, 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 Adams Housing, LLC, supra, slip op. at 7
(“The court must give notice to ensure that the party
is aware that it must ‘come forward with all of [its]
evidence.'”) (citation omitted).
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.” 5 C
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); see
Putney v. Likin, ___ Fed. App'x ___, 2016 WL
3755783, at *5-6 (4th Cir. July 14, 2016); McCray v.
Maryland Dep't of Transportation, 741 F.3d 480, 483
(4th Cir. 2015). 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))
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.
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
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.'” Harrods, 302 F.3d at 244-45
(internal citations omitted); see also Putney, 2016
WL 3755783, at *5; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). Moreover, “[t]his is especially true
where, as here, the non-moving party is proceeding pro
se.” Putney, 2016 WL 3755783, at *5.
has not filed an affidavit under Rule 56(d). Moreover, I am
satisfied that it is appropriate to address the
defendants' Motion as one for summary judgment, because
it will facilitate resolution of this case.
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.” 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).
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)),
cert. denied, 541 U.S. 1042 (2004). 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); see FDIC v. Cashion, 720 F.3d 169, 173 (4th
district court's “function” is not “to
weigh the evidence and determine the truth of the matter but
to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. Moreover,
the trial court may not make credibility determinations on
summary judgment. Jacobs v. N.C. Administrative Office of
the Courts, 780 F.3d 562, 569 (4th Cir. 2015);
Mercantile Peninsula Bank v. French, 499
F.3d 345, 352 (4th Cir. 2007); Black &. Decker Corp.
v. United States, 436 F.3d 431, 442 (4th Cir. 2006);
Dennis, 290 F.3d at 644-45. Therefore, in the face
of conflicting evidence, such as competing affidavits,
summary judgment is generally not appropriate, because it is
the function of the fact-finder to resolve factual disputes,
including matters of witness credibility.
to defeat summary judgment, conflicting evidence, if any,
must give rise to a genuine dispute of material
fact. See Anderson, 477 U.S. at 247-48. If
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party, ” then a
dispute of material fact precludes summary judgment.
Id. at 248; see Libertarian Party of Va. v.
Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other
hand, summary judgment is appropriate if the evidence
“is so one-sided that one party must prevail as a
matter of law.” Id. at 252. And, “the
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be
evidence on which the jury could reasonably find for the
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)).
raise four affirmative defenses, which I shall discuss, in
argue that Samsud'Diyn's request for monetary damages
against them in their official capacity for alleged
constitutional violations is barred by Eleventh Amendment
immunity. ECF 22 at 9-10. The Eleventh Amendment provides:
“The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or subjects of any Foreign
State.” Sovereign immunity accords states the dignity
that is consistent with their status as sovereign entities.
Fed. Mar. Comm'n v. S. Carolina State Ports
Auth., 535 U.S. 743, 760 (2002).
Eleventh Amendment bars suit in federal court against a state
by its own citizens, absent consent or a valid Congressional
abrogation of sovereign immunity. See Coleman v. Court of
Appeals of Maryland,, ___ U.S. ___, 132 S.Ct. 1327, 1333
(2012) (“A foundational premise of the federal system
is that States, as sovereigns, are immune from suits for
damages, save as they elect to waive that defense.”);
Board of Trustees of Univ. of Alabama v. Garett, 531
U.S. 356, 363 (2001); Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 54-55 (1996) (“For over a
century we have reaffirmed that federal jurisdiction over
suits against unconsenting States was not contemplated by the
Constitution when establishing the judicial power of the
United States.” (internal quotation marks and citation
omitted)); Pennhurst State School and Hospital v
Halderman, 465 U.S. 89, 100 (1984).
Eleventh Amendment jurisprudence, “a suit against a
state official in his or her official capacity is not a suit
against the official but rather is a suit against the
official's office. As such, it is no different from a
suit against the State itself.” Will v. Michigan
Dept. of StatePolice, 491 U.S. 58, 71 (1989).
Therefore, official capacity claims are subject to sovereign
immunity under the Eleventh Amendment. Kentucky v.
Graham, 473 U.S. 159, 167 (1985); accord Hafer v.
Melo, 502 U.S. 21, 25 (1991). As the Supreme Court
explained in Graham, 473 U.S. at 165:
“Personal-capacity suits seek to impose personal
liability upon a government official for actions he takes
under color of state law. Official-capacity suits, in
contrast, ‘generally represent only another way of
pleading an action against an entity of which an officer is
an agent.'” (quoting Monell v. N.Y.C. Dept. of
Soc. Servs.,436 U.S. 658, 690, n. 55 (1978)) (citations
omitted); see also, e.g., Huggins v.
Prince George's Cnty., 683 F.3d 525, 532 (4th ...