United States District Court, D. Maryland
ANTHONY Q. KELLY, Plaintiff
STATE OF MARYLAND STATE HOUSE, Defendants
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
a Maryland inmate housed at North Branch Correctional
Institution, filed this civil rights action alleging that
prison officials have violated his First and Eighth Amendment
rights. ECF No. 1. Defendants filed a Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment. ECF No. 21.
Although notified of his right to do so, ECF No. 22,
Plaintiff has not responded to Defendants' dispositive
Motion, and his time for doing so has expired.The matter is now
ripe for review. The Court finds a hearing in these matters
unnecessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons that follow. Defendants' dispositive Motion,
construed as a Motion for Summary Judgment, is GRANTED.
Complaint, Plaintiff states that, despite submitting a
request slip, he was not given his monthly -welfare
commissary bag" on February 27, 2018. ECF No. 1 at 3.
Welfare commissary bags contain paper, writing utensils, and
basic hygiene items like soap and toothpaste, and are
provided to indigent inmates who request them. Id.
Plaintiff alleges that Defendants intentionally denied
Plaintiff his welfare commissary bag as retaliation for
Plaintiff filing lawsuits against correctional staff.
Id. at 5. Further, Plaintiff asserts that the denial
of the welfare commissary bag effectively prevents him from
being able to access the courts because he is deprived of
paper, pens, and related items. Id. at 3. Aside from
the various claims arising out of Plaintiff not receiving a
welfare commissary bag, Plaintiff also asserts that he has
not showered or shaved in the month preceding his filing of
the instant Complaint. Id. Plaintiffs claims of
retaliation and lack of access to the court appear to arise
under the First Amendment, while his claims of not showering
and being denied a welfare commissary bag are Eighth
acknowledges in his Complaint that he did not exhaust his
administrative remedies prior to filing this action.
Id. at 4. Indeed, Plaintiff mailed the Complaint on
March 5, 2018, or one week after he did not receive the
expected commissary bag. However, he asserts that exhaustion
is not jurisdictional and "[t]hat means if you
didn't exhaust and you think you have a good enough
reason, the court at least has the power to consider your
filed a Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment. ECF No. 21. They assert, among other
arguments, that this action must be dismissed due to
Plaintiffs failure to exhaust administrative remedies. ECF
No. 21-1 at 5-7.
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, and
Defendants submitted exhibits in support of their position.
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," 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 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).
Because Defendants have filed and relied on exhibits and an
affidavit attached to their dispositive Motion, the Motion
shall be treated as one for summary judgment.
judgment is proper when the moving party demonstrates,
through "particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers, or other materials,"
that "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a), (c)(1)(A); see Baldwin v.
City of Greensboro. 714 F.3d 828, 833 (4th Cir. 2013).
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 witnesses'
credibility." Dennis v. Columbia Colleton Med Ctr.,
Inc., 290 F.3d 639, 644-45 (4th Cir. 2002).
party seeking summary judgment demonstrates that there is no
evidence to support the nonmoving party's case, the
burden shifts to the nonmoving party to identify evidence
that shows that a genuine dispute exists as to material
facts. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 US. 574, 585-87 & n.10 (1986).
The existence of only a "scintilla of evidence-is not
enough to defeat a motion for summary judgment. Anderson
v. Liberty Lobby. Inc., 477 U.S. 242, 251-52 (1986).
Instead, the evidentiary materials submitted must show facts
from which the finder of fact reasonably could find for the
party opposing summary judgment. Id.
while this Court is required to liberally construe pro se
documents and hold them to a less stringent standard than
those drafted by attorneys, see Erickson v. Pardus,
551 U.S. 89.94 (2007); Estelle v. Gamble, 429 US.
97, 106 (1976), the requirement of liberal construction does
not mean that the Court can ignore a clear failure in the
pleading to allege facts that set cognizable claim, see
Weller v. Dep't of Soc. Servs., 901 F.2d 387. 391
(4th Cir. 1990). Rather, 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 v. Baltimore Ravens Football Club.
Inc., 346 F.3d 514. 526 (4th Cir. 2003) (internal
quotation marks omitted).
raise the affirmative defense that Plaintiff has failed to
exhaust his administrative remedies. If Plaintiffs claim has
not been properly presented through the administrative remedy
procedure it must be dismissed pursuant to the Prisoner
Litigation Reform Act ("PLRA"), 42 U.S.C.
§1997e. The PLRA provides in pertinent part that:
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such ...