United States District Court, D. Maryland
L. Hollander United States District Judge
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.
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.
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.
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
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).
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.
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.
facts are included in the Discussion.
Standard of Review
Motion to Dismiss
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.”
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
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)
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.
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
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).
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).
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.
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)).
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 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.
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.
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 ...