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Maryland Restorative Justice Initiative v. Hogan

United States District Court, D. Maryland

February 3, 2017

MARYLAND RESTORATIVE JUSTICE INITIATIVE et al., Plaintiffs,
v.
GOVERNOR LARRY HOGAN et al., Defendants.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.

         Plaintiffs 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.[1]

         The 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”)[2] (collectively, the “State”).

         The 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.[3]

         Plaintiffs 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).

         Further, 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. ¶ 73.

         In 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.

         Pursuant 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).

         In an 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.[4] 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.

         By 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.[5] 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).

         On January 4, 2017, the Court held a motions hearing at which oral argument was presented. See ECF 47; ECF 61.

         For the reasons that follow, I shall deny the Motion to Strike. And, I shall grant in part and deny in part the Motion to Dismiss.

         I. Factual Background[6]

         The Named Plaintiffs are adult inmates in Maryland correctional institutions. They are all serving sentences of life imprisonment, with parole, [7] for homicides that they committed when they were juveniles, i.e., under the age of eighteen. ECF 1, ¶¶ 1, 13, 122, 136, 147.[8]

         Calvin 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.

         In 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.

         Tucker 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.

         According 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.

         In 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.

         While 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.

         According 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.

         Plaintiffs 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.

         II. Maryland's System for Prisoner Release

         A. Maryland Parole Commission

         In 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. § 7-301(c).

         According 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).[9]

         In all 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).

         Notably, 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).[10]

         These 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.

         The DOC 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.).

         B. Role of the Governor

         Maryland's 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).[11] 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. § 7-301(d)(5)(iii).[12]

         Notably, there are currently no statutory or regulatory provisions that govern the Governor's exercise of his discretion.

         However, 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 Session).[13]

         The 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.

         And, on 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.

         I 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.

         C. Executive Clemency

         The 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.

         In 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.”

         The MPC 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. § 12.08.01.15.B.

         III. Motion to Strike

         As 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.[14] 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.

         Decisions 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 amicus.”

         In the 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.

         IV. Standard of Review and Conversion to Summary Judgment

         Plaintiffs' 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)).

         Plaintiffs' 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).

         Defendants' 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.[15] 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.

         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 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).

         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.” 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 165-67.

         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. 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)).

         “[T]o 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, ...


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