United States District Court, D. Maryland
L. Hollander United States District Judge.
David Montgomery, who is self-represented, is an inmate in
the Maryland correctional system. He has filed correspondence
(ECF 1), construed as a civil rights action under 42 U.S.C.
§ 1983, against the Warden of Patuxent Institution,
complaining that he is receiving inadequate medical and
mental health care, in violation of the Eighth Amendment to
the Constitution. ECF 1. Further, he complains about the
mental health evaluations he has received, changes in the
medication he is prescribed, and the incentive system used to
earn privileges, such as access to the phone or recreation.
He also expresses concern that he has not been released from
Patuxent to return to his prior place of confinement, Western
Correctional Institution, as promised prior to his transfer
to Patuxent. Id.
also alleges that he has been assaulted by a correctional
officer and asserts that his life is in danger. Id.;
see also ECF 2. According to Montgomery, he was
assaulted by Officer P. Jallan on October 5, 2015, and by a
psychiatrist, Holmes, and was “almost assaulted by a[n[
inmate” five days later, then was placed on protective
custody. ECF 5 at 1. He asks solely for injunctive relief
mandating his transfer from Patuxent to another institution.
light of the serious nature of Montgomery's allegations,
this Court promptly issued an Order directing the Maryland
Attorney General to respond. ECF 3. The State's response,
including exhibits, is docketed as ECF 10. Based on the
information provided in the response, Montgomery was notified
of the Court's intention to construe the response as a
summary judgment motion, and he was also informed of his
right to oppose the motion. See ECF 11; ECF 12.
Montgomery filed a reply in opposition (ECF 13), along with
additional correspondence. ECF 14; ECF 17-20.
State's response, construed as a motion for summary
judgment (“Motion”), is ripe for disposition, and
no hearing is necessary to resolve it. See Local
Rule 105.6 (D. Md. 2016). For the reasons outlined below, the
Court will grant the State's Motion.
Preliminary Matter Regarding Competency
is serving a 30 year sentence following a guilty plea on
December 30, 2013, to second-degree murder and armed robbery.
See State of Maryland v. Montgomery, Case No.
06K13043713 (Cir. Ct. Carroll Co.). Nothing in the electronic
docket suggests that Montgomery was examined with regard to
mental competency in connection with his criminal conviction.
His mental health condition appears to have worsened on
several occasions during his ensuing incarceration, raising
the question of whether he is competent to undertake
self-representation in this lawsuit.
Civ. P. 17(c)(2) states:
A minor or an incompetent person who does not have a duly
appointed representative may sue by a next friend or by a
guardian ad litem. The court must appoint a guardian ad
litem-or issue another appropriate order-to protect a minor
or incompetent person who is unrepresented in an action.
respect to Rule 17(c)(2), the Fourth Circuit has observed:
“The practical problem presented by a case in which a
presumably competent party might be thought to be acting
oddly, or foolishly, or self-destructively in prosecuting or
defending a civil lawsuit, with or without counsel, is a real
one.” Hudnall v. Sellner, 800 F.2d 377, 385
(4th Cir. 1986). It added that “[p]arties to litigation
behave in a great variety of ways that might be thought to
suggest some degree of mental instability.”
Id. Rule 17(c)(2) recognizes the existence of some
forms of mental deficiency which may affect a person's
practical ability to manage his or her own affairs that goes
beyond “something other than mere foolishness or
improvidence, garden-variety or even egregious mendacity, or
even various forms of the more common personality
Rule 17(c)(2) allows the court to appoint a guardian ad
litem, it does not compel it to do so. Rather, it grants the
court considerable discretion to issue an “appropriate
order” to protect the interests of an unrepresented,
incompetent litigant. See Seibels, Bruce & Co. v.
Nicke, 168 F.R.D. 542, 543 (M.D. N.C. 1996). Close
examination of the record in this case does not compel a
finding of incompetency, nor a need to appoint a guardian ad
Standard of Review
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. 2011); see
Putney v. Likin, 656 Fed. App'x 632, 638 (4th Cir.
2016); McCray v. Maryland Dep't of
Transportation, 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, 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.
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 (citations 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 citations
omitted). 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.'” Id. at 244-45 (internal
citations omitted); see also Putney, 656 Fed.
App'x at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). Moreover, “[t]his is especially true
where, as here, the non-moving party is proceeding pro
se.” Putney, 656 Fed. App'x at 638.
has not filed an affidavit under Rule 56(d). Instead, he has
filed a reply in opposition, specifically noting that the
submission is in response to the pending summary judgment
motion. In light of the foregoing, I am satisfied that it is
appropriate to address the State's submission (ECF 10) as
a motion for summary judgment, as this will facilitate
resolution of the case.
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.” The 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 ...