United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
November 7, 2016, the Court received for filing inmate
Anthony Kelly's self-represented civil rights action
filed pursuant to 42 U.S.C. § 1983 and Title II of the
Americans With Disabilities Act
(“ADA”). The Complaint seeks damages, as well as
injunctive and declaratory relief, from Maryland Division of
Correction personnel. Defendants have filed a Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment
(ECF No. 14),  as well as legal memorandum (ECF No.
14-1),  and a number of exhibits. ECF No. 14-3
through ECF No. 14-8. Kelly has filed an
Opposition. ECF No. 16.
matter is ready for disposition. No hearing is necessary.
See Local Rule 105.6 (D. Md. 2014). Defendants'
Motion, construed as a motion for summary judgment, IS
GRANTED for reasons to follow.
who is currently confined at the North Branch Correctional
Institution (“NBCI”), alleges that on the morning
of October 27, 2016, the cold water in his cell was turned
off. He claims that the hot water in the cells of three other
inmates was also turned off, and that this was done so that
he would not think that the Warden was retaliating against
him. He claims that over a two-day period he informed a
number of officers either orally or by written note that he
had no cold water, but received no response. Kelly complains
that the lack of cold water in his cell caused his
“body to shut down” and forced him to drink
toilet and shower water. He claims that this action was in
retaliation for his lawsuits against Warden Bishop and his
staff. ECF No. 1, pp. 3-4; ECF No. 1-1. Kelly contends that
every time he has filed an administrative remedy procedure
(“ARP”) grievance, he was informed that it was
not received or had been misplaced. ECF No. 1, p. 7.
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
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, ” 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).
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 Fisher v. Md. Dept. of Pub. Safety & Corr.
Servs., Civ. No. JFM-10-0206, 2010 WL 2732334, at *3,
2010 U.S. Dist. LEXIS 68772, at *8-10 (D. Md. July 8, 2010).
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, supra, 637 F.3d at 448-49.
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)) Notably, “‘Rule
56(d) affidavits cannot simply demand discovery for the sake
of discovery.'” Hamilton v. Mayor & City
Council of Baltimore, 807 F.Supp.2d 331, 342 (D. Md.
2011) (quoting Young v. UPS, No. DKC-08-2586, 2011
WL 665321, at *20, 2011 U.S. Dist. LEXIS 14266, at *62 (D.
Md. Feb. 14, 2011)). “Rather, to 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. 885 (2008).
Summary 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.
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). In analyzing a summary
judgment motion, 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 Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); FDIC v. Cashion, 720 F.3d 169, 173 (4th
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
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