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Montgomery v. Warden

United States District Court, D. Maryland

December 12, 2017

DAVID MICHAEL MONTGOMERY, ID #412797, SID #2405284 Plaintiff,
v.
WARDEN Defendant.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Plaintiff David Montgomery, who is self-represented, is an inmate in the Maryland correctional system.[1] 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.[2]

         Montgomery 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. ECF 2.

         In 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.

         The 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.

         I. Preliminary Matter Regarding Competency

         Montgomery 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.).[3] 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.

         Fed. R. 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.

         With 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 disorders.” Id.

         Although 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 litem.

         II. Standard of Review

         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. 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)).

         “[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, 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).

         If a 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.

         Plaintiff 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.

         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.” 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 ...


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