United States District Court, D. Maryland
Catherine C. Blake United States District Judge
Correctional Institution (“JCI”) inmate John Lee
(“Lee”) filed a self-represented 42 U.S.C. §
1983 complaint for injunctive relief relating to Lee's
claim that JCI staff failed to follow the ruling of an
Administrative Law Judge (“ALJ”) allowing for the
receipt of incoming personal mail (greeting cards). ECF No.
1. Lee subsequently was permitted to amend his complaint to
seek damages. ECF Nos. 14 & 16.
by their counsel, have filed a motion to dismiss or, in the
alternative, a motion for summary judgment, accompanied by a
declaration. ECF No. 20. Lee has filed an opposition response
and a motion for discovery. ECF Nos. 22 & 23. Oral
hearing is not needed to resolve the issues. See
Local Rule 106.5 (D. Md. 2016). For the reasons to follow,
defendants' motion, construed as a motion for summary
judgment, will be granted and judgment will be entered in
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. ECF No. 20. 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 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, ” 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).
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 165-67.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2011). However,
“the party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery
unless that party had 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)); see Putney v. Likin,
656 Fed. App'x 632, 638-39 (4th Cir. 2016). 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 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. 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
(internal quotations 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 quotations omitted); see also Putney, 656
Fed. App'x at 638-40; Nader v. Blair, 549 F.3d
953, 961 (4th Cir. 2008). 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.” Harrods, 302 F.3d
244-45 (internal quotations omitted). Moreover, “[t]his
is especially true where . . . the non-moving party is
proceeding pro se.” Putney, 656 Fed. App'x
filed a motion for discovery seeking information bulletins
and inmate administrative remedy procedure grievances that
were issued and filed between January 2011 and August 2016
and which concern inmate mail and property. ECF No. 23. He
has not filed an affidavit under Rule 56(d) nor has he
indicated that such discovery is needed to properly respond
to defendants' motion and declaration, which does include
relevant information bulletins related to inmate mail.
Further, Lee's motion for discovery calls into question
Local Rule 104.4 (D. Md. 2016) and Fed.R.Civ.P.
26(a)(1)(B)(iv), which provide that discovery shall not
commence until a scheduling order is entered and that
self-represented actions filed by prisoners are exempt from
initial discovery disclosures. A scheduling order was not
entered in this case. In light of the foregoing, I am
satisfied that it is appropriate to address the
defendants' opposed motion as one for summary judgment,
both because it will facilitate resolution of the case and
because the discovery sought by Lee is not needed for his
response. Lee's motion for discovery will be denied.
judgment is governed by Fed.R.Civ.P. 56(a), which provides in
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). “A 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. Balt. Ravens Football Club,
Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in
original) (quoting 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 witnesses'
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 ...