United States District Court, D. Maryland
L. Russell, III, United States District Judge
MATTER is before the Court on Defendant Department of Public
Safety and Correctional Services' (“DPSCS”)
Motion to Dismiss (ECF No. 17) and Defendants Erwin Aldana,
M.D. and Jonathan Thompson, M.D.'s, (collectively,
“the Medical Defendants”) Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment (ECF No. 19).
Also pending before the Court is the Medical Defendants'
Motion to Strike Surreply (ECF No. 23) and Plaintiff Kent
Bell's “Motion for Court to [Accept]
Surreply” (ECF No. 24). The Motions are ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will grant DPSCS's and the Medical Defendants'
Motions to Dismiss. The Court will deny as moot the Medical
Defendants' Motion to Strike and Bell's Motion.
incarcerated at the Maryland Correctional Training Center
(“MCTC”) in Hagerstown, Maryland. (Am. Compl. at
1, ECF No. 5). Bell alleges that he was denied his
diabetes medication, metformin (Glucophage), for sixty-two
days from February 2, 2017 to April 1, 2017. (Id. at
2). This, he pleads, had a “direct effect” on his
eyes, kidneys and nerves.” (Compl. at 2, ECF No. 1).
Bell states that he filed eleven or twelve sick call slips
“to no avail.” (Am. Compl. at 2). Bell also
alleges that he wrote a letter on an unspecified date to Dr.
Thompson and to RN Pitsnagel at MCTC, but he does not specify
what he said in the letter. (Id.). Bell pleads that
he filed Administrative Remedy Procedure (“ARP”)
requests to Warden Dovey on March 2, 2017 and March 9, 2017.
September 11, 2017, Bell filed this action against the DPSCS
and MCTC Medical Staff. (ECF No. 1). On September 22, 2017,
the Court directed Bell to supplement the Complaint to
include the names of the individuals whom he claims are
responsible for the alleged wrongdoing, the dates of the
alleged incidents, and the facts supporting his claim. (Sept.
22, 2017 Order at 1, ECF No. 4). Bell filed an Amended
Complaint on October 6, 2017, which added Dr. Aldana, Dr.
Thompson, and “RN Pitsnagel.” (Am. Compl. at
1-2). The Court construes Bell's Amended Complaint as
bringing two counts: (1) violations of the Eighth Amendment
of the United States Constitution for deliberate indifference
to serious medical needs; and (2) medical malpractice.
(See Am. Compl.). Bell seeks compensatory damages
“for pain and suffering as relief for
malpractice.” (Id. at 3).
January 12, 2018, DPSCS filed a Motion to Dismiss. (ECF No.
17). Bell filed an Opposition to DPSCS's Motion on
January 24, 2018. (ECF No. 21). To date, the Court has no
record that DPSCS filed a Reply.
January 18, 2018, the Medical Defendants filed a Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment.
(ECF No. 19). Bell filed an Opposition to the Medical
Defendants' Motion on January 31, 2018. (ECF No. 22). To
date, the Court has no record that the Medical Defendants
filed a Reply.
February 2, 2018, the Medical Defendants filed a Motion to
Strike Bell's Opposition. (ECF No. 23). Bell has filed a
Motion styled as a “Motion for Court to [Accept]
Surreply” on February 14, 2018. (ECF No.
Neither Motion is opposed.
The Medical Defendants' Motion to Strike and
Bell's “Motion to [Accept]
Medical Defendants assert that Bell filed an opposition to
their dispositive motion on January 24, 2018, and then filed
a surreply on January 31, 2018. (Mot. Strike Surreply at 1-2,
ECF No. 23). Under Local Rule 105.2 (D.Md. 2016), surreply
memoranda are not permitted unless ordered by the Court. A
surreply may be permitted “when the moving party would
be unable to contest the matters presented to the court for
the first time in the opposing party's reply.”
Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md.
2003) (citing Lewis v. Rumsfeld, 154 F.Supp.2d 56,
61 (D.D.C. 2001)). The Medical Defendants assert they did not
file a reply and raise new arguments. (Mot. Strike at 2). A
careful reading of Bell's filings, however, shows that
his first Opposition, (ECF No. 21), was filed in response to
DPSCS's Motion. The second Opposition, (ECF No. 22),
listed on the docket as a “Reply” is an
Opposition to the Medical Defendants' Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment.
Bell's “Motion to [Accept] Surreply” also
suggests that Bell intended that the filings to respond to
DPSCS's and the Medical Defendants' Motions
separately. (Mot. Leave File Surreply at 1, ECF No. 24). The
Court will, therefore, direct the Clerk to correct the docket
to reflect that ECF No. 21 is a Response in Opposition to
DPSCS's Motion to Dismiss, (ECF No. 17), and that
Bell's Reply, docketed at ECF No. 22, is a Response in
Opposition to the Medical Defendants' Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment, (ECF No.
19). Accordingly, having determined that Bell did not file a
surreply, the Court will deny as moot the Motion to Strike
and the “Motion to [Accept] Surreply.”
Conversion of the Medical Defendants' Motion
Medical Defendants style their Motion as a motion to dismiss
under Rule 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).
See KensingtonVolunteer Fire Dep't., Inc.
v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md.
2011), aff'd, 684 F.3d 462 (4th Cir. 2012). This
Rule provides that when “matters outside the pleadings
are presented to and not excluded by the court, the [Rule
12(b)(6)] motion must be treated as one for summary judgment
under Rule 56.” Fed.R.Civ.P. 12(d). The Court
“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 ...