United States District Court, D. Maryland
DONALD R. PEVIA, Plaintiff
COMMISSIONER OF CORR., et al., Defendants
L. Hollander United States District Judge
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.
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. 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.
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
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.
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.
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
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.
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.
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. 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).
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 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)), ...