United States District Court, D. Maryland
LEO E. BRISBANE, Plaintiff
LARRY HOGAN, et al., Defendants
K. Bredar Chief Judge.
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.
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.
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.
In Forma Pauperis Status
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.
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).
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.
Motion for Summary Judgment
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 ...