United States District Court, D. Maryland
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
13, 2017, the Court received for filing inmate Anthony
Kelly's verified self-represented 42 U.S.C. § 1983
civil rights action, which also invokes the Americans With
Disabilities Act ("ADA"), of 1990, as amended, 42
U.S.C. §§ 12101, et seq. The Complaint
seeks damages, as well as declaratory and injunctive relief,
from Maryland Department of Public Safety and Correctional
Services ("DPSCS") personnel. Defendants have filed
a Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment (ECF No. 10), as well as a legal memorandum
(ECF No. 10-1),  and verified exhibits. ECF No. 16-3 to ECF
No. 16-15. Kelly has filed Oppositions and a Motion to
Appoint Counsel. ECF Nos. 12, 13, & 15.
matter is ready for disposition. No. hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). Defendants'
Motion, construed as a motion for summary judgment, IS
GRANTED and Judgment is entered in favor of Defendants for
reasons to follow.
who is currently confined at the North Branch Correctional
Institution ("NBCI"), alleges that on May 13, 2017,
he asked Defendant Correctional Officer Baker to place him on
the haircut list when Baker came to Kelly's cell. Kelly
claims that he was told by Baker that Sergeant Thomas and
Warden Bishop had indicated that if "Kelly refuse[d] to
go back into general population do not let him get a haircut
today let him wait another 30 days for a haircut." Kelly
alleges that Baker walked away from his cell, came back, and
twice tried to "bribe" him by saying that he
(Baker) would let Kelly have a haircut if Kelly went back
into general population. Kelly states that Baker then
indicated that Kelly did not have to go back into population,
but that Thomas and Bishop had indicated that Kelly would
only get a haircut if he dropped his law suits. Kelly asserts
that it is "cruel and unusual punishment" for him
to wait another 30 days for a haircut and that Defendants
acted with an "evil motive." ECE, .No. 1, p. 3. He
claims that another inmate on segregation refused to go back
to general population, but was not harassed. Kelly asserts
that he asked Baker for Administrative Remedy Procedure (ARP)
grievance forms and was informed there were no ARP forms
available. Kelly seeks declaratory and injunctive
relief, asking that Defendants Baker and Thomas be removed
from his housing unit (HU) #1 B-Tier and be ordered to cease
their "threats." He additionally requests
compensatory, nominal, and punitive damages. Id.,
pp. 4-6 & 9.
document received for filing on March -12, 2018, construed as
a Supplemental Complaint, Kelly complains that he has only
had one haircut in the past six months. ECF No. 16. An
Affidavit filed by Kelly on April 3, 2018, claims that he had
not received a haircut in four months. ECF No. 17.
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. 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, " and "[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion."
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
Autk, 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. Given
the exhibits presented here (which were also presented to
Kelly), the Court has ample information with which to address
the pleading as filed for summary judgment.
judgment is governed by Fed.R.Civ.P. 56(a), which provides in
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Supreme Court has clarified that this does not mean that any
factual dispute will defeat the motion: By its very terms,
this standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original). In analyzing a summary
judgment motion, the court should "view the evidence in
the light most favorable to...the nonmovant, and draw all
inferences in her favor without weighing the evidence or
assessing the witness credibility." Dennis v.
Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45
(4th Cir. 2002); see Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); FDIC
v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
party opposing a properly supported motion for summary
judgment 'may not rest upon the mere allegations or
denials of [his] pleadings, ' but rather must 'set
forth specific facts showing that there is a genuine issue
for trial.'" Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 525 (4th
Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P.
56(e)). However, the district court's
"function" is not "to weigh the evidence and
determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson,
477 U.S. at 249. Moreover, the trial court may not make
credibility determinations on summary judgment. Jacobs v.
N.C. Administrative Office of the Courts, 780 F.3d 562,
569 (4th Cir. 2015); Mercantile Peninsula Bank v.
French, 499 F.3d 345, 352 (4th Cir. 2007); Black
&. Decker Corp. v. United States, 436 F.3d 431, 442
(4th Cir. 2006); Dennis, 290 F.3d at 644-45.
Kelly is self-represented, his submissions are liberally
construed. See Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, the Court must also abide by the
"'affirmative obligation of the trial judge to
prevent factually unsupported claims and defenses from
proceeding to trial.'" Bouchat, 346 F.3d at
526 (internal quotation marks omitted) (quoting Drewitt
v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and
citing Celotex Corporation v. Catrett, 477 U.S. 317,