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Moore v. Eastern Correctional Institute

United States District Court, D. Maryland

January 17, 2018

KEVIN STUART MOORE, JR., Plaintiff
v.
EASTERN CORRECTIONAL INSTITUTION, et al., Defendants

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         Plaintiff Kevin Stuart Moore, Jr., a self-represented State inmate confined to the Eastern Correctional Institution in Westover, Maryland (“ECI”), filed suit against defendants Sergeant William D. Jones; Correctional Officer II Ivan Tilghman; Warden John Wolfe; and ECI. ECF 1. Moore subsequently filed an Amended Complaint. ECF 4. He alleges a failure to protect claim based on the events of December 1, 2016, when he was attacked by another inmate while housed at the Poplar Hill Pre-Release Unit (“PHPRU”), which is a part of ECI. ECF 4 at 3. He seeks $200, 000 in damages. Id. at 4.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 17. It is supported by a Memorandum (ECF 17-1) (collectively, the “Motion”) and numerous exhibits. Plaintiff opposes the Motion. ECF 19. Defendants did not file a reply.

         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. Factual Background

         On December 1, 2016, Moore was attacked by another inmate, Timothy Covington. ECF 4 at 3. Plaintiff states that at that time, he was “under the watch” of Sgt. Jones and Ofc. Tilghman. Id. Plaintiff received a black eye and a possible fracture to his left eye. Id. According to plaintiff, the assault “could have been avoided if proper security was in place under Warden Wolfe.” Id.

         Defendants indicate that on December 1, 2016, plaintiff reported to the medical office with a visible injury to his left eye. ECF 17-5 (Declaration of Jones), ¶ 4; ECF 17-6 (Memorandum of 12/1/16 from Sgt. Jones to Capt. K. King); ECF 17-7 (Declaration of Tilghman), ¶ 4; ECF 17-8 at 2 (Tilghman Notice of Incident). Investigation revealed that plaintiff and inmate Covington, who was assigned as a food service worker in the officer's dining room, had been involved in a physical altercation regarding missing utensils. Covington, who was responsible for the utensils, believed that plaintiff had stolen them. ECF 17-5, ¶ 5; ECF 17-8 at 2; ECF 17-7, ¶ 5; ECF 17-3 (Declaration of Dietary Officer Twilley), ¶¶ 7-9; ECF 17-4 at 2-3 (Twilley Notice of Incident); ECF 17-6 at 2 (Jones Memorandum).

         Both inmates were seen by medical staff for injuries consistent with a physical altercation. ECF 17-5 (Jones Declaration), ¶ 8. Both inmates were also charged with rule violations. Plaintiff was charged with assault or battery on an inmate and stealing State property or possessing State property identified as stolen. ECF 17-17 at 1 (Moore's Inmate Hearing Record). Plaintiff accepted a plea agreement for 30 days of segregation and the revocation of 30 days of good conduct credit. Id. at 4.

         Plaintiff filed a request for administrative remedy (ARP”) on December 12, 2016. ECF 17-19 at 2. He claimed he sustained injuries during the incident on December 1, 2016, as a result of poor security measures. Id. The ARP was dismissed on December 15, 2016. Id. Thereafter, on December 29, 2016, plaintiff filed an appeal to the Commissioner of Corrections, claiming that the warden had not responded to his ARP. Id. at 3. The appeal was dismissed on December 29, 2016. Id. Plaintiff did not pursue his grievance with the Inmate Grievance Office (“IGO”). ECF 17-20) (Declaration of Russell Neverdon, Sr., Executive Director of the IGO), ¶ 3.

         Additional facts are included in the Discussion.

         II. Standard of Review

         A. Motion to Dismiss

         The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the complaint. In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom. McBurney v. Young, __ U.S. __, 133 S.Ct. 1709 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to ensure that defendants are provided with “fair notice” of the claim(s) made against them and the “grounds” for entitlement to relief. Bell Atl., Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .” (citation omitted)); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, __ U.S.__, 135 S.Ct. 346, 346 (2014) (per curiam).

         “When determining whether a complaint fails to comply with Rule 8(a), ‘courts have looked to various factors, including the length and complexity of the complaint, whether the complaint was clear enough to enable the defendant to know how to defend himself, and whether the plaintiff was represented by counsel.'” Rush v. Am. Home Mortg., Inc., WMN-07-854, 2009 WL 4728971, at *4 (D. Md. Dec. 3, 2009) (emphasis added) (quoting North Carolina v. McGuirt, 114 Fed.App'x. 555, 558 (4th Cir. 2004) (per curiam)) (internal citations omitted). A court may properly dismiss a complaint under Rule 12(b)(6) for failure to comport with Rule 8(a) if the complaint “does not permit the defendants to figure out what legally sufficient claim the plaintiffs are making and against whom they are making it.” McGuirt, 114 Fed.App'x at 559.

         Thus, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotations omitted).

         In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual allegations contained in the complaint'” and must “‘draw all reasonable inferences [from those facts] in favor of the plaintiff.'” E.I. du Pont de Nemours & Co., supra, 637 F.3d at 440 (citations omitted); see Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. Denied, __ U.S. __, 132 S.Ct. 1960 (2012).

         B. Summary Judgment

         The 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 29. 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, 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 Fed.Appx. 220, 222 (4th Cir. 2016) (per curiam). But, 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.

         No Scheduling Order has been issued in this case setting forth deadlines for discovery. See Local Rule 803.1 (D. Md. 2016). Absent a Scheduling Order, the parties generally are not entitled to engage in discovery. And, summary judgment ordinarily 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 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 who fails to file a Rule 56(d) affidavit does so 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 does not 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). 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.'” Harrods, 302 F.3d 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). “This 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 in compliance with Rule 56(d). Nor is there any indication that any additional materials would create a genuine issue of material fact. As such, with respect to the two correctional officers, I am satisfied that it is appropriate to address the Motion as one for summary judgment, because it will facilitate ...


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