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Pevia v. Commissioner of Corr.

United States District Court, D. Maryland

January 5, 2018

DONALD R. PEVIA, Plaintiff
v.
COMMISSIONER OF CORR., et al., Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         Donald R. Pevia, the self-represented plaintiff, is a State inmate currently confined at the Western Correctional Institution. At all relevant times, he was confined at the North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. Pevia filed suit on January 3, 2017, naming as defendants the Commissioner of Correction; Warden Frank Bishop; and Assistant Warden Jeffrey Nines. ECF 1. The suit is supported by an exhibit. ECF 1-1.

         Pevia complains that for inmates housed at NBCI there is no access to toilets while inmates are using the outside yard or inside dayroom. ECF 1 at 3.[1] He claims that if an inmate needs to use the bathroom during his recreation period, he has to lock into his cell and lose the remainder of his recreation period. Id. According to Pevia, the denial of access to a toilet facility violates his rights under the Eighth Amendment to the Constitution. ECF 1 at 5. He seeks injunctive relief as well as compensatory and punitive monetary damages. Id. at 5-6.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 14. The motion is supported by a Memorandum (ECF 14-1) (collectively, the “Motion”) and exhibits. Plaintiff opposes the Motion. ECF 18. No reply was filed.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons that follow, defendants' Motion, construed as a motion for summary judgment, shall be granted.

         I. Background

         Plaintiff states that on or about June 27, 2016, while he was in the outside yard, he had “the need to make a bowel movement.” ECF 1 at 3. He waited for an officer “to walk past the yard” so that he could report his need to use the bathroom, but no officer came over until his recreation time was over. Id. According to plaintiff, he has “severe medical conditions with [his] bowel movements, ” and the only way to relieve the pressure on his stomach was to release some of the stool. Id. Plaintiff explains that he suffers from “massive bleeding . . . when making bowel movements” due to his suffering from chronic Hepatitis C. ECF 18 at 2.

         On the date in question, when Pevia returned to his cell, he waited for Officer Reed to come around so that he could request “a red hazardous medical bag.” ECF 1 at 3. After 15 minutes of waiting, Pevia washed his underwear out in the toilet and washed himself in the sink. Id. Plaintiff complains about “the stench in the heat of the summer.” Id.

         Plaintiff timely filed a grievance by way of a Request for Administrative Remedy (“ARP”). ECF 1-1; ECF 1 at 4; ECF 14-2 at 7-22. His ARP was not successful. Id.

         Defendants indicate that plaintiff's recreation time lasted one hour and fifteen minutes. ECF 14-2 at 9, § II, ¶ 1 (administrative grievance investigation). Plaintiff's medical records (ECF 14-3) indicate that he does not suffer from irritable bowel syndrome or other gastrointestinal issues other than constipation, occasionally associated with blood in stool, for which medical providers prescribed a stool softener and fiber. ECF 14-3 at 2, 3, 5, 7, 8, 12, 13, 14, 18, 20, 22, 27. Moreover, NBCI was audited in August 2015 and found to be in compliance with correctional standards for housing and sanitation. ECF 14-2 at 25-27.

         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. ECF 14. 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, ” but “[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); see Adams Housing, LLC v. The City of Salisbury, Maryland, 672 F. App'x 220, 222 (4th Cir. 2016) (per curiam). However, 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.

         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. 2012); see Putney v. Likin, 656 F. 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)), ...


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