United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
Calvin McNeill, Nathaniel Foster, and Kenneth Tucker
(collectively, the “Named Plaintiffs”), along
with the Maryland Restorative Justice Initiative
(“MRJI”), filed a 61-page complaint, challenging
the constitutionality of Maryland's parole system as
applied to individuals who received sentences of life
imprisonment, with parole, for homicide offenses they
committed as juveniles (“Juvenile Offender” or
“Juvenile Offenders”). ECF 1
(“Complaint”). MRJI, “a grassroots
membership organization dedicated to prisoners' rights,
” has sued on “behalf of its members” (ECF
1, ¶¶ 13, 16), “including more than 100
juvenile lifers and their families…”
Id., ¶ 119.
defendants are four Maryland officials who have been sued in
their official capacities: Governor Larry Hogan; David
Blumberg, Chair of the Maryland Parole Commission
(“MPC”); Stephen Moyer, Secretary of the Maryland
Department of Public Safety and Correctional Services
(“DPSCS”); and Dayena M. Corcoran, Commissioner
of the Maryland Division of Correction
(“DOC”) (collectively, the “State”).
Complaint contains three counts: “Violation of the
Eighth Amendment Prohibition Against Cruel and Unusual
Punishment and 42 U.S.C. § 1983 (Count One);
“Violation of Article 25, Md. Decl. of Rights
Prohibition Against Cruel or Unusual Punishment” (Count
Two); and “For Declaratory Judgment that Maryland Code,
Criminal Law Article § 2-201(b) Is
Unconstitutional” (Count 3). ECF 1.
assert that they “have been and continue to be denied a
meaningful opportunity for release, ” in violation of
the Eighth Amendment to the Constitution and Article 25 of
the Maryland Declaration of Rights. ECF 1, ¶ 1. They
claim that although Maryland ostensibly provides parole
eligibility for Juvenile Offenders serving life sentences, in
practice under the Maryland parole system such sentences are
converted into unconstitutional “de facto”
sentences of life without parole. Id., ¶¶
11-12, 167-185. According to plaintiffs, “of more than
200 parole-eligible juvenile lifers in Maryland, ”
“no one has been paroled in the last twenty
years.” ECF 35 at 8 (emphasis in original);
see ECF 1, ¶¶ 58; 64; 74; 117, 119. In
support of their claim of unconstitutionality, plaintiffs
rely on several decisions of the Supreme Court, including
Graham v. Florida, 560 U.S. 48, 82 (2010);
Miller v. Alabama, 567 U.S.___, 132 S.Ct. 2455, 2469
(2012); and Montgomery v. Louisiana, U.S.___, 136
S.Ct. 718, 734 (2016).
plaintiffs seek a declaration that two provisions of Maryland
law are unconstitutional: Md. Code (2008 Repl. Vol.), §
7-301(d)(4) of the Correctional Services (“C.S.”)
Article and Md. Code (2012 Repl. Vol.), § 2-201(b) of
the Criminal Law Article (“C.L.”). According to
plaintiffs, C.L. § 2-201(b) is unconstitutional because
“it mandates judges to impose life sentences without
adequate consideration of youth status . . . resulting in
grossly disproportionate punishment…” ECF 1,
¶ 15. And, they argue that C.S. § 7-301(d)(4) is
unconstitutional as applied to Juvenile Offenders because the
Governor is not required to follow or consider parole
recommendations made by the MPC (id. ¶ 72), nor
is he guided by any factors or standards, either statutory or
regulatory, in granting or denying parole. Id.
addition, plaintiffs challenge the policies and practices
implemented by the MPC. See id, ¶¶ 81-90.
In particular, plaintiffs maintain that the risk assessment
tools used by the MPC to assess individuals “penalize
those who were young at the time of offense…” by
“assessing them as they were when they were most
risky…” ECF 1 ¶¶ 61, 87 (alterations
added). Plaintiffs also claim that the automatic
classification of all Juvenile Offenders to maximum security
upon commitment to DOC, and the categorical bar for lifers on
progressing below medium security, denies Juvenile Offenders
opportunities to advance through the DOC system to
demonstrate their maturity and rehabilitation,
“[b]ecause virtually every aspect of programming is
determined by an individual's classification
level.” Id. ¶ 99; see also id.,
¶ 62. Plaintiffs also argue that “juveniles are
severely limited in their ability to demonstrate
rehabilitation through the gradual earning of additional
privileges and the ability to succeed in lower-security
settings.” Id., ¶ 99.
to Fed.R.Civ.P. 8(c), 12(b)(1), and 12(b)(6), defendants have
filed a motion to dismiss, or in the alternative, for summary
judgment (ECF 23), supported by a memorandum (ECF 23-1)
(collectively, “Motion” or “Motion to
Dismiss”), and several exhibits. ECF 23-3 to ECF 23-5.
Plaintiffs oppose the Motion (ECF 35,
“Opposition”) and have submitted a Rule 56(d)
declaration from one of their lawyers, asserting a need for
discovery. On that basis, they oppose conversion to summary
judgment. ECF 35-1. Defendants replied (ECF 41,
“Reply”), supported by an affidavit. ECF 41-1.
Plaintiffs moved to file a surreply (ECF 43), which I granted
by Order of January 3, 2017 (ECF 59).
Order of August 30, 2016 (ECF 33), Roberta Roper, Deborah
Kempl, Jessica Fisher, Patti Krogmann, and the Maryland Crime
Victims' Resource Center, Inc. (collectively,
“Amici”) were granted amicus curiae status in the
case. Id. They submitted a memorandum in support of
the Motion to Dismiss (ECF 34), supported by three documents
previously filed with the court and refiled as ECF 34-1 to
ECF 34-3. Plaintiffs have moved to strike the amici
submission (ECF 36), supported by a memorandum (ECF 36-1)
(collectively, “Motion to Strike”). Amici have
responded (ECF 40) and plaintiffs have replied. ECF 42.
Order of December 7, 2016 (ECF 48), I directed counsel to
submit supplemental memoranda addressing LeBlanc v.
Mathena, 841 F.3d 256, 261 (4th Cir. 2016), a decision
of the United States Court of Appeals for the Fourth Circuit
issued on November 7, 2016, in regard to a habeas
case. The parties submitted the requested
memoranda on December 16, 2016. See ECF 49
(plaintiffs); ECF 50 (defendants). They submitted responses
to the supplemental memoranda on December 28, 2016.
See ECF 57 (plaintiffs); ECF 58 (defendants).
January 4, 2017, the Court held a motions hearing at which
oral argument was presented. See ECF 47; ECF 61.
reasons that follow, I shall deny the Motion to Strike. And,
I shall grant in part and deny in part the Motion to Dismiss.
Named Plaintiffs are adult inmates in Maryland correctional
institutions. They are all serving sentences of life
imprisonment, with parole,  for homicides that they committed
when they were juveniles, i.e., under the age of
eighteen. ECF 1, ¶¶ 1, 13, 122, 136,
McNeill “was sentenced to life with parole under
Maryland's mandatory sentencing scheme for felony
murder” (ECF 1, ¶ 122) for “his role in a
fatal robbery of a dice game [sic] that occurred in 1981, the
day he turned 17 years old.” Id. ¶ 120.
When this suit was filed in April 2016, McNeill was 51 years
of age and had spent more than 35 years in prison for this
offense. Id. ¶ 121. He has earned “an
exceptional institutional record in the DOC”
(id. ¶ 124), has “taken advantage of
every program available to him, earned positions of trust in
employment, and taken leadership roles in programs to promote
alternatives to violence within and outside DOC.”
Id. ¶ 124. McNeill was recommended for
“commutation” in 2008, “[i]n recognition of
this strong record . . . .” Id. ¶ 125. In
2011, “Governor O'Malley rejected this
recommendation without explanation.” Id.
¶ 126. McNeill's sixth parole hearing was scheduled
for 2015 (id. ¶ 127) and, during that hearing,
parole commissioners “told him they would be
recommending him for a risk assessment.” Id.
¶ 128. As of the date of filing of the Complaint, the
assessment had not occurred. Id.
1974, when Kenneth Tucker was seventeen years of age, he was
sentenced to life with parole “under Maryland's
mandatory sentencing scheme . . . for participating in a
robbery-murder with another teenager.” Id.
¶ 136. According to plaintiffs, “Mr. Tucker's
co-defendant killed the victim.” Id. But,
“[b]ecause the case involved a homicide that occurred
during the course of a robbery, Mr. Tucker was charged with
felony murder and faced a mandatory penalty of life in
prison.” Id. ¶ 137. At the time suit was
filed, Tucker was 59 years of age and had been incarcerated
for 42 years. Id. ¶ 136.
allegedly “began turning his life around almost
immediately upon his incarceration, earning his high school
equivalency in 1975, an associate's degree in 1989, and a
bachelor's degree in psychology in 1994.”
Id. ¶ 139. Tucker has “obtained
certification or training in several professions” and
“is currently an observation aide in the prison
hospital, where he provides consolation and coping strategies
to terminally ill and mentally distressed peers.”
Id. Tucker also belongs to the prison's
“Scholars program” and serves as a volunteer
mentor. Id. Plaintiffs aver that as early as 1987,
“case management recommended [Tucker's] transfer to
preferred trailer housing and medium security because of his
good institutional adjustment and infraction-free record . .
. .” Id. ¶ 140.
to plaintiffs, “Mr. Tucker declined his parole hearing
in 1996, believing the process was futile. He did not have
any parole hearing again for nearly 20 years…as he did
not see much point to reinstating hearings when no lifers
were being paroled.” Id. ¶ 142. Tucker
had his sixth parole hearing in 2014. Id. ¶
143. “Commissioners who heard his case recommended that
he progress to the next step, which is the risk assessment .
. . .” Id. However, “[a]fter the
evaluation was completed, the parole commission denied parole
and set his next hearing for 2017.” Id.
1983, “Nathaniel Foster was involved in a botched
robbery attempt along with his co-defendant, ” during
which “the victim was killed.” Id.
¶ 146. He was seventeen years old at the time.
Id. Because Foster's case “involved a
homicide that occurred during a robbery, Mr. Foster was
charged with first-degree murder and subjected to a mandatory
penalty of life imprisonment . . . .” Id.
¶ 147. When this lawsuit was filed, Foster had been
incarcerated for 32 years. Id. ¶ 149.
incarcerated, Foster has maintained “an exemplary
institutional record” with “only two minor
infractions in the last three decades” and no
“infraction of any kind in the last 16 years . . .
.” Id. ¶ 150. Foster has also
“pursued his education” and has “held a
number of jobs while incarcerated including working in the
canteen and cooking for the Officer's Dining Room.”
Id. ¶ 152. Foster “has been entrusted
with extraordinary responsibilities in these jobs”
(id.), and has also “served as a volunteer
helping to care for men who are gravely and terminally ill at
the prison hospital.” Id. ¶ 153.
to plaintiffs, Foster has had numerous parole hearings in the
last twenty years, including in 1995, 2000, 2005, 2008, 2011,
and 2013. Id. ¶ 155; see also Id.
¶¶ 156-165. During the 2013 hearing, the MPC noted:
“Offender presented well, has excellent job evaluations
and mentors younger prisoners. After considering all factors,
a rehear for 1/2015 is suitable given nature &
circumstances of offense.” Id. ¶ 164
(internal quotations omitted). However, “[a]t the
beginning of 2015, disheartened by his sense of futility in
the parole process as he was repeatedly recognized for having
an excellent record but then denied release due to the
offense itself, without regard for his juvenile status, Mr.
Foster declined a parole hearing.” Id. ¶
165. Thereafter, during a 2016 parole hearing, Foster was
“advised that he will be sent to Patuxent for a
psychological evaluation.” Id.
explain that “Maryland's parole system changed
dramatically in 1995, when then-Governor Parris Glendening
took office and announced that he was unwilling to grant
parole to individuals serving life sentences…”
Id., ¶ 105. They observe that from 1995 to
2015, a period of two decades, Governors Glendening, Ehrlich,
and O'Malley received recommendations for parole for 24
individuals serving life sentences, both juveniles and
adults, and rejected every one, without explanation.
Id. ¶ 116. See Id. ¶ 117. In
contrast, between 1969 and 1994, “181 lifers were
paroled” by Governors Mandel, Hughes, and Schaefer. ECF
1, ¶ 118.
Maryland's System for Prisoner Release
Maryland Parole Commission
general, parole is a discretionary system of conditional
release administered by the MPC. See C.S. §
7-101(i). Many inmates are eligible for parole after serving
one-quarter of their sentences. C.S. § 7-301(a).
However, inmates serving sentences for violent crimes, as
defined in C.S. § 7-101(m), must serve half of their
sentences before they are eligible for parole. C.S. §
to the State, “[t]he law governing parole eligibility
for inmates serving parolable life sentences typically
entitles them to earlier parole consideration than
that available to inmates serving a term of years for a
violent crime.” ECF 23-1 at 15 (emphasis in original).
Defendants explain that an inmate serving a life sentence
ordinarily is eligible for parole after serving fifteen years
of the sentence, less diminution credits. C.S. §
7-301(d)(1). However, if the case is one in which the
prosecutor sought a sentence of death or life without the
possibility of parole, under former C.L. § 2-303 or C.L.
§ 2-304, the inmate is not eligible for parole until
after he or she serves twenty-five years, less diminution
credits. C.S. § 7-301(d)(2).
cases, the applicable statute and regulations require the MPC
to consider several factors in determining whether to grant
parole, including, for example, the circumstances of the
crime and the inmate's progress during confinement. C.S.
§ 7-305; see also Maryland Code of
Administrative Regulations (“COMAR”) §
12.08.01.18 (1995) (listing criteria to be considered).
after this suit was filed, the MPC enacted new regulations
requiring it to consider certain factors in determining
whether a prisoner who committed a crime as a juvenile is
suitable for release on parole. See COMAR
12.08.01.18.A(3) (amended October 24, 2016).
factors are as follows, id.:
(a) Age at the time the crime was committed;
(b) The individual's level of maturity and sense of
responsibility at the time of the crime was [sic] committed;
(c) Whether influence or pressure from other individuals
contributed to the commission of the crime;
(d) Whether the prisoner's character developed since the
time of the crime in a manner that indicates the prisoner
will comply with the conditions of release;
(e) The home environment and family relationships at the time
the crime was committed;
(f) The individual's educational background and
achievement at the time the crime was committed; and
(g) Other factors or circumstances unique to prisoners who
committed crimes at the time the individual was a juvenile
that the Commissioner determines to be relevant.
also recently revised its policies regarding prisoners
serving life sentences for crimes committed as juveniles. The
Division's Case Management Manual now allows such an
inmate to be classified to minimum or pre-release security if
the MPC recommends that the inmate participate in
“outside testing and/or work release.” ECF 23-4
(Executive Directive OPS.100.0004.5.D.).
Role of the Governor
Governor has a significant role in regard to parole for
anyone serving a life sentence. Under C.S. §
7-301(d)(4), the Governor must approve a decision of the MPC
to grant parole to an inmate who has served fewer than
twenty-five years of a life sentence, without application of
diminution credits. C.S. § 7-301(d)(4) states:
“Subject to paragraph (5) of this subsection, if
eligible for parole under this subsection, an inmate serving
a term of life imprisonment may only be paroled with the
approval of the Governor.” Pursuant to C.S. §
7-301(d)(5), such approval is not required if the Parole
Commission elects to parole an inmate who has served
twenty-five years or more of a life sentence. However, even
in that circumstance, the Governor “may disapprove the
decision” of the MPC with regard to such an inmate.
C.S. § 7-301(d)(5)(ii). Since 2011, if the MPC elects
to parole an inmate who has served at least twenty-five
years, and the Governor does not disapprove the MPC's
decision within 180 days of receiving notice of it, the
parole decision “becomes effective.” C.S. §
there are currently no statutory or regulatory provisions
that govern the Governor's exercise of his discretion.
on February 2, 2017, Delegate Pamela Queen and eleven
co-sponsors introduced in the Maryland House of Delegates
House Bill 723, “Inmates - Life Imprisonment - Parole
Reform.” The bill proposes to amend C.S. § 7-301
by repealing subsections d(4) and d(5) in their entirety.
Under the terms of the proposed bill, the Governor would no
longer have a role in approving or disapproving decisions of
the MPC as to parole for individuals serving life sentences.
See H.B. 723 at 3 (2017 Regular
proposed bill sets forth its purposes. It states, in relevant
part, id. at 1:
FOR the purpose of repealing certain provisions that provide
that inmates serving a term
of life imprisonment may be paroled only with the
Governor's approval, subject to certain provisions;
repealing certain provisions that require certain parole
decisions to be transmitted to the Governor under certain
circumstances; repealing certain provisions that authorize
the Governor to disapprove certain parole decisions in a
certain manner; repealing certain provisions that provide
that if the Governor does not disapprove a certain parole
decision in a certain manner within a certain time period,
the decision becomes effective; making stylistic changes;
making a technical correction; and generally relating to
sentences of life imprisonment.
February 3, 2017, Senator Nathaniel McFadden and six
co-sponsors introduced in the Senate of Maryland Senate Bill
694, “Inmates - Life Imprisonment - Parole
Reform.” As of this writing, I am unable to obtain the
contents of this proposed bill. But, it was cross-filed with
House Bill 723.
cannot predict whether these Bills will pass. But, two prior
attempts, in 2015 and in 2016, were unsuccessful.
See SB 531 (2016 Regular Session); SB 111 (2015
Regular Session); HB 882 (2016 Regular Session); HB 303 (2015
Regular Session). In any event, I must analyze the issues
raised by plaintiffs' Complaint under the existing
Maryland statutory and regulatory framework.
Supreme Court explained the difference between parole and
clemency in Solem v. Helm, 463 U.S. 277 (1983).
There, it said, id. at 300-01:
As a matter of law, parole and commutation are different
concepts, despite some surface similarities. Parole is a
regular part of the rehabilitative process. Assuming good
behavior, it is the normal expectation in the vast majority
of cases. The law generally specifies when a prisoner will be
eligible to be considered for parole, and details the
standards and procedures applicable at that time….Thus
it is possible to predict, at least to some extent, when
parole might be granted. Commutation, on the other hand, is
an ad hoc exercise of executive clemency. A Governor
may commute a sentence at any time for any reason without
reference to any standards.
Maryland, “‘Commutation of sentence' means an
act of clemency in which the Governor, by order, substitutes
a lesser penalty for the grantee's offense for the
penalty imposed by the court in which the grantee was
convicted.” C.S. § 7-101(d). Maryland's
Governor has the power to grant commutations and pardons,
which is derived from Article II, § 20 of the Maryland
Constitution. The Governor's authority is codified at
C.S. § 7-601, which permits the Governor, as relevant
here, to “pardon an individual convicted of a crime
subject to any conditions the Governor requires, ” or
to “remit any part of a sentence of imprisonment
subject to any conditions the Governor requires, without the
remission operating as a full pardon.”
has a role in the commutation of life sentences. See
COMAR § 12.08.01.15 (1995). “The [Parole]
Commission will recommend to the Governor a commutation of a
life sentence where the case warrants special consideration
or where the facts and circumstances of the crime justify
special consideration, or both.” Id. §
Motion to Strike
noted, amici submitted a memorandum in support of the Motion
to Dismiss (ECF 34), along with three documents. ECF 34-1 to
ECF 34-3. In their Motion to Strike, plaintiffs
argue, inter alia, that the filings of amici
improperly assert defenses not raised by the defendants
themselves, including “res judicata,
collateral estoppel, sovereign immunity and broad
PLRA exhaustion requirements.” ECF 36-1 at 6; see
also Id. at 2 n. 1.
about whether and how to allow amicus participation in
federal district court are left to the discretion of the
trial judge. See Finkle v. Howard County, Md., 12
F.Supp.3d 780 (D. Md. 2014). However, the Fourth Circuit has
signaled that amici are typically not permitted to raise
issues beyond those raised by the parties. Snyder v.
Phelps, 580 F.3d 206, 216 (4th Cir. 2009),
aff'd, 562 U.S. 443 (2011). The Fourth Circuit
explained, 580 F.3d at 216: “Put simply, our Court and
our sister circuits have consistently been wary, even
prohibitive, of addressing an issue raised solely by an
exercise of my discretion, I will deny the Motion to Strike.
However, I will not consider any arguments advanced by amici
that were not raised by the parties themselves.
Standard of Review and Conversion to Summary
federal claims are predicated on 42 U.S.C. § 1983, which
provides that a plaintiff may file suit against any person
who, acting under color of state law, “subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws” of the United States. 42
U.S.C. § 1983; see also, e.g., Filarsky v.
Delia, ___U.S.___, 132 S.Ct. 1657, 1660 (2012). To state
a claim under § 1983, “a plaintiff must aver that
a person acting under color of state law deprived him of a
constitutional right or a right conferred by a law of the
United States.” Wahi v. Charleston Area Medical
Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009); see
Filarsky, 132 S.Ct. at 1661; Jenkins v.
Medford, 119 F.3d 1156, 1159-60 (4th Cir. 1997).
However, § 1983 “‘is not itself a source of
substantive rights, ' but merely provides ‘a method
for vindicating federal rights elsewhere
conferred.'” Albright v. Oliver, 510 U.S.
266, 271 (1994) (quoting Baker v. McCollan, 443 U.S.
137, 144 n.3 (1979)).
state law claims are predicated on Article 25 of the Maryland
Declaration of Rights. The Court of Appeals of Maryland has
“consistently construed [Articles 16, 24, and 25 of the
Maryland Declaration of Rights] as being in pari
materia with their Federal counterparts.”
Evans v. State, 396 Md. 256, 327, 914 A.2d 25, 67
(2006) (alteration added).
Motion is styled as a motion to dismiss under Fed.R.Civ.P.
12(b)(6) or, in the alternative, for summary judgment
pursuant to Fed.R.Civ.P. 56. Defendants submitted several
exhibits, totaling over 80 pages in length, with their
Motion. These include declarations, evidence regarding
recently promulgated regulations, and information regarding
the early release of five persons who received life sentences
for offenses committed as juveniles.
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 Dep't, Inc. v.
Montgomery Cty, 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, Md., ___ Fed. Appx.___, 2016 WL 6958439, at
*2-3 (4th Cir. Nov. 29, 2016) (per curiam). 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).
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.
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, 656 Fed.Appx. 632, 638-640 (4th Cir.
2016) (per curiam); McCray v. Maryland Dep't of
Transp., 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, ...