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Kelly v. Zies

United States District Court, D. Maryland

April 28, 2017

ANTHONY QUENTIN KELLY, #352736 Plaintiff,



         On July 15, 2016, the Court received for filing inmate Anthony Kelly's self-represented 42 U.S.C. § 1983 civil rights action. The Complaint seeks damages from the Maryland Department of Public Safety and Correctional Services ("DPSCS") and its personnel. Defendants have filed an unopposed Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF No. 16), as well as a legal memorandum (ECF No. 16-1), [1] and exhibits.[2] ECF No. 16-2 through ECF No. 16-5. Also pending before the Court is Kelly's Emergency Motion for Leave tp File an Amended Complaint, which the Court shall deny. ECF No. 15.

         The matter is ready for disposition.. No hearing is necessary. See Local Rule 105.6 (D. Md. 2016). Defendants' Motion, construed as a motion for summary judgment, IS GRANTED for reasons to follow.

         I. Background

         Kelly, who is currently confined at the North Branch Correctional Institution ("NBCI"), alleges that on June 20, 2016, Case Management Specialist Zies retrieved his legal documents from her mailbox to make copies for him. He complains that since July 7, 2016, Zies has refused to return his legal documents unless Kelly dropped his lawsuit pending in the United States Court of Appeals for the Fourth Circuit against Leslie -Simpson, see Kelly v. Simpson, CA-16-6598 (4th Cir. 2016). He further claims that Zies is trying to stop him from challenging his conviction and sentences in the U.S. Supreme Court. ECF No. 1, p. 2. Kelly contends that he filed an administrative remedy procedure ("ARP") grievance regarding Zies' actions, but Officer Gilpin indicated he was "going to trash it." Kelly claims that he did not receive an acknowledgement receipt of the ARP from the ARP Coordinator. Id., p. 3. In his Motion to File an Amended Complaint, Kelly seeks to add the State of Maryland and Warden Frank Bishop as Defendants and to generally invoke the Americans With Disabilities Act ("ADA") as part of his Complaint. ECF No. 15.

         Leave to amend shall be denied. A § 1983 lawsuit may not be filed against the State of Maryland. The State is not a "person" within the meaning of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64-65 & 70-71 (1989). Moreover, the State of Maryland is immune from liability under the Eleventh Amendment from a § 1983 suit in federal court without regard to the nature of the relief sought. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-01 (1984); C.H. v. Oliva, 226 F.3d 198, 201 (3rd Cir. 2000).

         Further, although Kelly names Warden Bishop in the caption of his Amended Complaint, he makes no claims against Bishop in the body of the Amended Complaint. A claim of personal or supervisory culpability has not been made against Bishop.

         Finally, although Kelly cites to the ADA, he provides no claims under that statute. He has failed to show that he has a qualifying disability under the ADA. To state a claim for violation of the ADA, Kelly must show that he (1) has a disability, (2) is otherwise qualified to participate in a program, and (3) was denied the benefits of the program or discriminated against because of the disability. See Millington v. Temple Univ. Sch. Of Dentistry, 261 Fed. App. 363, 365 (3rd Cir. 2008). A physical condition may qualify as a "disability" within the meaning of the ADA because it "substantially limits one or more ... major life activities." 42 U.S.C. § 12102; 29 U.S.C. § 705(20)(B). Under the law in this circuit, to establish that he is disabled under the ADA, Kelly must prove that: he has a physical or mental impairment; that this impairment implicates at least one major life activity; and the substantial. See Heiko v. Columbo Savings Bank, F.S.B., 434 F.3d 249, 254 (4th Cir. 2006).

         II. Standard of Review

         Defendants' 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, " 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).

         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, 167. Given the exhibits presented here (which were also presented to Kelly), the Court has ample information with which to ...

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