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Brisbane v. Hogan

United States District Court, D. Maryland

March 19, 2018

LEO E. BRISBANE, Plaintiff
v.
LARRY HOGAN, et al., Defendants

          MEMORANDUM OPINION

          James K. Bredar Chief Judge.

         Plaintiff Leo Brisbane filed this 42 U.S.C. § 1983 action, alleging that the water at Brockbridge Correctional Facility is contaminated. ECF Nos. 1, 4, 6, 10. He was granted leave to proceed in forma pauperis. ECF No. 11. The Defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 28, and a Motion to reconsider the grant of leave to proceed in forma pauperis, ECF No. 29. Plaintiff has filed a Response in Opposition to the dispositive motion. ECF No. 31. The matter is now ripe for review. For the reasons that follow, Defendant's Motion to reconsider Plaintiff's in forma pauperis status is DENIED, and Defendant's dispositive Motion, construed as a Motion for Summary Judgment, is GRANTED.

         I. BACKGROUND

         Plaintiff, an inmate at Brockbridge Correctional Facility (“Brockbridge”), claims that the water supply at Brockbridge contains lead and sand. ECF No. 4 at 3; ECF No. 6; ECF No. 10 at 2. Plaintiff alleges that his consumption of the contaminated water has caused him to suffer memory loss, brain damage, headaches, and dizziness. ECF No. 4; ECF No. 6; ECF No. 10 at 3. He states that he “is in danger of losing liver damage [sic] from drinking, lead tained [sic] water.” ECF No. 1 at 1 (capitalization altered). As evidence of the contamination, Plaintiff states that the corrections officers do not drink the water available at Brockbridge, ECF No. 10 at 2, and that “the inter net shows that [Brockbridge] is condimed [sic].” ECF Nos. 6, 9.

         Defendants have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. ECF No. 28. Among other exhibits, Defendants have attached communications regarding tests that were conducted on the water at Brockbridge, finding no lead in the water. ECF No. 28-3 at 5-6. Defendants have also moved this Court to reconsider its earlier decision to grant Plaintiff's request to proceed in forma pauperis. ECF No. 29.

         II. DISCUSSION

         A. In Forma Pauperis Status

         On October 13, 2017, this Court granted Plaintiff's Motion for Leave to Proceed in Forma Pauperis. ECF No. 11. On the day that they filed their dispositive motion, Defendants filed a Motion for Reconsideration to Deny Plaintiff from Proceeding In Forma Pauperis. ECF No. 29. Defendants argue that Plaintiff has three “strikes” under the Prison Litigation Reform Act (“PLRA”) and therefore is barred from proceeding without full pre-payment of fees. ECF No. 29 at 3-4.

         The PLRA states, in relevant part, that:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

         Defendants are correct that Plaintiff has previously filed three such actions (often referred to as “strikes”), and thus may not proceed in forma pauperis unless he alleges imminent danger of serious harm. See ECF No. 29 at 3-4 (citing Brisbane v. States Attorney Office, JFM-09-783 (D. Md.), Brisbane v. State of Maryland, JFM-12-3495 (D. Md.), and Brisbane v. Food Lion, LLC, JFM-17-989 (D. Md.)). Without looking beyond the Complaint, Plaintiff's assertion that drinking water contains lead and that he is suffering adverse health effects amounts to a prima facie allegation that he is in imminent danger of serious harm. Although the Defendants assert that the Court should not credit Plaintiff's claim of imminent danger because his allegation “is directly contradicted by actual laboratory test results of water sample which were negative for lead” and Plaintiff's medical records, ECF No. 29 at 4-5, such an argument requires the Court to look beyond the Complaint, which is inappropriate for purposes of determining whether a Plaintiff has made a prima facie claim of imminent danger under § 1915(g). Accordingly, the Defendant's motion to revoke Plaintiff's in forma pauperis status is denied.

         B. Motion for Summary Judgment

         Defendants' dispositive Motion is styled as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. 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 Dep't, Inc. v. Montgomery Cty., 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, ” and “[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). 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 ...


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