United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants J. Michael Stouffer
and Dayena M. Corcoran's Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment (ECF No. 33). Also
pending before the Court is Plaintiff David Wayne Hall's
Motion for Leave to File Surreply in Opposition to
Defendants' Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (ECF No. 42). In this 42 U.S.C.
§ 1983 (2018) action, Hall, a Maryland inmate housed in
Virginia, alleges that he has been deprived of access to
Maryland courts because he cannot obtain Maryland legal
materials or legal assistance. The Motions are ripe for
disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2016). For the reasons that follow, the
Court will deny in part and deny without prejudice in part
Defendants' Motion and grant in part and deny in part
Hall's Motion for Leave to File Surreply.
Hall's Criminal Case
March 1992, the Circuit Court for Baltimore County, Maryland
sentenced Hall to a term of life imprisonment plus fifteen
years for committing several felonies. (1st Am. Compl. ¶
9, ECF No. 25). In August 1996, Hall agreed to be a
cooperating witness in two state-court first-degree murder
cases. (Id. ¶ 10). In exchange for his
testimony, the State agreed to several conditions, including
receiving a letter from an Anne Arundel County State's
Attorney regarding Hall's cooperation, which was to be
placed in his parole file. (Id.). The State's
Attorney wrote the letter. (Id. ¶ 11).
2006, Hall had his first parole hearing. (Id. ¶
15). The Parole Board did not consider that he was a
cooperating witness. (Id.). The Parole Board did not
recommend Hall for parole. (Id. ¶ 16). The
Parole Board again did not recommend Hall for parole in 2008,
2010, 2012, 2014, and 2016. (Id.).
Attempts to Obtain Maryland Legal Materials
October 22, 1999, pursuant to the Interstate Corrections
Compact (“ICC”), the State of Maryland
involuntarily transferred Hall to the Virginia state prison
system. (Id. ¶ 12). Hall is currently
incarcerated at Augusta Correctional Center in Craigsville,
Virginia. (Id. ¶ 6). The ICC requires the State
to ensure that inmates like Hall receive the same access to
legal materials that inmates housed in Maryland receive.
(Hall Decl. ¶ 12, ECF No. 36-1). The Maryland Division of
Correction (“DOC”) publishes a handbook for
inmates that contains information regarding requests for
legal materials: the “Handbook for Maryland Inmates
Housed Out of State Under Interstate Corrections Compact and
Intergovernmental Agreements” (the
“Handbook”). (Mem. Supp. Mot. Dismiss Summ. J.
[“Stouffer's Mot.”] Ex. 1 at 15-20
[“Handbook”], ECF No. 4-2). The Handbook also
contains a Library Assistance to State Institutions
(“LASI”) form, which inmates use to request legal
materials. (Id. at 20; May 18, 2015 Henson-Smith
Decl. ¶ 3, Stouffer's Mot. Ex. 1 at 5-8, ECF No.
4-2). Hall did not receive the Handbook or the LASI request
form. (Hall Decl. ¶ 2).
January 2008, Hall filed an Informal Complaint with the
Virginia Department of Corrections (“VDOC”),
requesting access to Maryland legal materials. (Hall Decl.
¶ 6; Pl.'s Resp. Defs.' Mot. Dismiss Summ. J.
[“Pl.'s Opp'n”] Ex. A1 [“Jan. 22,
2008 Inf. Compl.”], ECF No. 36-2). In response, VDOC
told Hall to contact the Maryland ICC Coordinator, Yuvonka
Jenkins. (Hall Decl. ¶ 7; Jan. 22, 2008 Inf. Compl.). On
February 8, 2008, Hall wrote to Jenkins and requested
Maryland legal materials, including the Maryland
Constitution, Maryland Code Annotated, and Maryland Rules, as
well as the ICC contract between Maryland and
Virginia. (Hall Decl. ¶¶ 7, 8; Pl.'s
Opp'n Ex. A2 at 2 [“Feb. 8, 2008 Hall Ltr.”],
ECF No. 36-3). Eight months later, on October 22, 2008,
Jenkins responded to Hall, stating that he needed to send a
check for $1.20 to obtain a copy of Maryland and
Virginia's ICC Contract; Jenkins did not address
Hall's other requests for Maryland legal materials. (Hall
Decl. ¶ 9; Pl.'s Opp'n Ex. A3, ECF No. 36-4).
September 5, 2008, before he received a response from
Jenkins, Hall wrote Sandy Cole at the Maryland Department of
Public Safety and Correctional Services
(“DPSCS”). (Hall Decl. ¶ 13; Pl.'s
Opp'n Ex. A7 [“Sept. 5, 2008 Hall Ltr.”], ECF
No. 36-8). Hall stated that he sent Jenkins a letter
requesting a copy of the ICC Contract and had not received a
response. (Sept. 5, 2008 Hall Ltr. at 1). Hall also informed
Cole that he sent the Maryland Attorney General a request for
a copy of the ICC Contract, and that an Assistant Attorney
General responded, letting him know that she had forwarded
his letter to Cole. (Id.). Hall indicated that he
had not yet received a response from Cole and requested a
copy of the ICC Contract. (Id. at 1-2).
February 11, 2009, Hall wrote Stouffer to inform him that he
did not have access to Maryland legal materials and to
request that Stouffer provide them for Hall. (Hall Decl.
¶ 14; Pl.'s Opp'n Ex. A8 [“Feb, 11, 2009
Hall Ltr.”] at 1-2, ECF No. 36-9; Miller Decl. ¶
2, ECF No. 41-8). Hall detailed his attempts to obtain
Maryland legal materials, including contacting LexisNexis and
Virginia's Institutional Attorney. (Feb. 11, 2009 Hall
Ltr. at 2). Hall complained that he had “no access to
the [f]ederal and [s]tate [c]ourts because I have NO Maryland
legal books, NO Maryland law on disk, NO Maryland
Institutional Attorney, or Maryland law library.”
(Id.). Hall further complained that he had “NO
Maryland law at all” and that he was “being
totally deprived” of his access to the courts.
March 17, 2009, Kendall Gifford, DOC Director of Case
Management, responded to Hall's letter on Stouffer's
behalf. (Hall Decl. ¶ 15; Pl.'s Opp'n Ex. A9
[“Mar. 17, 2009 Gifford Ltr.”], ECF No. 36-10;
Miller Decl. ¶ 2). Gifford instructed Hall to send his
requests for Maryland legal materials to LASI. (Mar. 17, 2009
Gifford Ltr.). She also told Hall to contact Becky Johnson at
DOC Headquarters, Case Management Unit, for further
unspecified date, Hall requested from LASI Maryland Rules
2-231 through 2-241, 2-501 through 2-551, 2-601 through
2-652, and 3-401 through 3-431. (See Hall Decl. ¶
17; Pl.'s Opp'n Ex. A11 [“Nov. 9, 2010 LASI
Ltr.”], ECF No. 36-12). On November 9, 2010, LASI
provided an unsigned, one-sentence reply to Hall's
request, stating “we cannot violate copyright laws by
photocopying the entire book for you.” (Nov. 9, 2010
LASI Ltr.). The November 9, 2010 letter is on Department of
Labor Licensing and Regulation (“DLLR”)
letterhead, but it indicates that it is “From:
LASI.”(Id.). In response, on December
24, 2010, Hall wrote the DLLR and reiterated his request for
the Maryland Rules listed above. (Hall Decl. ¶ 18;
Pl.'s Opp'n Ex. A12 [“Dec. 24, 2010 Hall
Ltr.”] at 1, ECF No. 36-13). He also suggested that
LASI send books or computer disks containing the requested
legal materials to avoid violating copyright laws. (Decl. 24,
2010 Hall Ltr. at 1). Hall copied Stouffer, among others, on
this letter. (Id. at 2). Hall never received a
response. (Hall Decl. ¶ 18).
April 4, 2011, Hall wrote the Maryland Attorney General,
informing him that LASI would not provide him with copies of
Maryland legal materials because his requests would violate
copyright laws. (Hall Decl. ¶ 19; Pl.'s Opp'n
Ex. A13 [“Apr. 4, 2011 Hall Ltr.”], ECF No.
36-14). Hall also requested certain Maryland Rules. (Apr. 4,
2011 Hall Ltr.). On April 15, 2011, the Office of the
Attorney General responded, stating that although it could
not provide copies of the Maryland Rules Hall requested, Hall
could access them on the internet. (Hall Decl. ¶ 20;
Pl.'s Opp'n Ex. A14, ECF No. 36-15). Hall does not,
however, have access to the internet. (Hall Decl. ¶ 20).
March 28, 2013, Hall sent Stouffer a Maryland Public
Information Act (“MPIA”) request. (Hall Decl.
¶ 22; Pl.'s Opp'n Ex. A16 [“MPIA
Req.”], ECF No. 36-17). Hall requested, among other
things, “the law, manuals, policies or procedures
governing the difference between a ‘Life' Sentence
and ‘The Balance of Natural Life'
Sentence.” (MPIA Req. at 11). On November 15, 2013,
Hall filed a lawsuit in the Circuit Court for Baltimore
County, Maryland because Stouffer and others had failed to
respond to his MPIA request. (Defs.' Mot. Dismiss Summ.
J. [“Defs.' Mot.”] Ex. 7, ECF No. 33-11).
Nearly a year and a half after filing his MPIA request, on
August 8, 2014, Renata Seergae of DPSCS responded. (Hall
Decl. ¶ 23; Pl.'s Opp'n Ex. A17 [“Aug. 8,
2014 Seergae Ltr.”], ECF No. 36-18). She indicated that
DOC did not have a record of receiving Hall's March 28,
2013 MPIA request until July 17, 2014. (Aug. 8, 2014 Seergae
Ltr. at 1). DOC documentation reflects, however, that
Stouffer's administrative staff processed Hall's MPIA
request on November 15, 2013. (Mekiliesky Decl. ¶¶
2-3, ECF No. 45-1). Seergae informed Hall that his request
“calls for the production of hundreds of documents,
” and that it would cost $655.92 to collect and copy
the documents. (Aug. 8, 2014 Seergae Ltr. at 1-2). Seergae
further informed Hall that if he paid that amount, she would
continue to work on fulfilling his MPIA request.
(Id. at 2).
5, 2014, Hall wrote the Institutional Attorney for Augusta
Correctional Center, William Little, Esq. (Hall Decl. ¶
30; Pl.'s Opp'n Ex. A20, [“June 5, 2014 Hall
Ltr.”], ECF No. 36-21). In his letter, Hall states that
he is “trying to challenge my Maryland criminal
convictions and fight the Maryland Parole Board. But every
time I write to Maryland officials, they either give me the
runaround or tell me to get the legal material from you, the
Institutional Attorney.” (June 5, 2014 Hall Ltr.). Hall
indicates that this is his “third request for legal
material, ” but Little has not responded.
(Id.). Hall also proposes that instead of meeting
with him, Little could send him the Maryland Rules for filing
state petitions for habeas corpus and “Maryland parole
procedures and laws to challenge the procedures.”
(Id.). Little never met with Hall or responded to
his letter. (Hall Decl. ¶ 30).
Correspondence with the Maryland Office of the Public
Hall was attempting to obtain access to Maryland legal
materials as described above, he was also corresponding with
the Maryland Office of the Public Defender
(“OPD”). Hall first wrote Scott Whitney,
then-Chief Attorney of OPD's Collateral Review Division.
(Hall Decl. ¶ 31; Pl.'s Opp'n Ex. A21
[“Mar. 18, 2008 Hall Ltr.”], ECF No. 36-22). He
told Whitney that “[i]t has been some time since I have
heard anything from you, or your office.” (Mar. 18,
2008 Hall Ltr. at 1). Hall also detailed his issues with the
Parole Board and his attempts to obtain Maryland legal
materials. (Id. at 1-2). Whitney responded to Hall
on June 6, 2008. (Hall Decl. ¶ 32; Pl.'s Opp'n
Ex. A22 [“June 6, 2008 Whitney Ltr.”], ECF No.
36-23). Whitney acknowledged that it had been “quite
some time” since he had contact with Hall. (June 6,
2008 Whitney Ltr. at 1). Whitney told Hall that due to his
caseload, he would be “transferring [Hall's] case
to another attorney who would be in a better position to
review the transcript that has been provided to [him] by
[Hall's] parents” and that the new attorney
“will contact [Hall] once he or she takes physical
possession of [Hall's] file.” (Id.).
June 6, 2008, Norman Handwerger, Deputy Chief of OPD's
Collateral Review Division, sent Hall a letter advising him
that Handwerger or another attorney from the Collateral
Review Division would visit him “as soon as [they]
can” but “it could be awhile before [they] can
actually see” Hall. (Hall Decl. ¶ 33; Pl.'s
Opp'n Ex. A23 [“June 6, 2008 Handwerger
Ltr.”], ECF No. 36-24). Handwerger advised Hall of the
ten-year deadline for filing a petition for post-conviction
relief in state court and gave Hall instructions for filing
his own petition if he chose to do so. (June 6, 2008
Handwerger Ltr. at 1). Handwerger told Hall that he was
“enclosing a copy of Maryland Rule 4-402, which
outlines the specific information you must include in your
[p]etition.” (Id. at 2). Handwerger did not,
however, include a copy of Maryland Rule 4-402. (Hall Decl.
September 11, 2008, Handwerger responded to correspondence
from Hall, informing him that he could not give him an
estimate as to when he would visit Hall or file a petition
for post-conviction relief on Hall's behalf. (Hall Decl.
¶ 34; Pl.'s Opp'n Ex. A24 [“Sept. 11, 2008
Handwerger Ltr.”], ECF No. 36-25). Handwerger reassured
Hall, however, that his case “is very important”
to OPD and that OPD was “doing everything [they] can to
move it along as quickly as possible.” (Sept. 11, 2008
Handwerger Ltr.). Then, on March 5, 2009, Handwerger
responded to a letter Hall wrote to OPD's Administrative
Services Division regarding a $50.00 outstanding debt. (Hall
Decl. ¶ 36; Pl.'s Opp'n Ex. A26, [“Mar. 5,
2009 Handwerger Ltr.”], ECF No. 36-27). Handwerger told
Hall that “Administrative Fee Agreement money should
not come to [his] office directly, ” and that OPD was
“still in the process of trying to obtain transcripts
of your trial.” (Mar. 5, 2009 Handwerger Ltr.).
November 2, 2010, Hall wrote OPD. (Hall Decl. ¶ 37;
Pl.'s Opp'n Ex. A27 [“Nov. 2, 2010 Hall
Ltr.”], ECF No. 36-28). This time, he requested
Maryland legal materials, including copies of the Maryland
Petition for Writ of Habeas Corpus, the affidavit for seeking
in forma pauperis status, and Maryland laws governing state
petitions for writ of habeas corpus. (Nov. 2, 2010 Hall
Ltr.). In response, Brian Saccenti, Deputy Chief Attorney of
OPD's Appellate Division, informed Hall that OPD
“does not provide legal advice to inmates unless we are
currently representing them, and we do not provide forms for
inmates to use in representing themselves.” (Hall Decl.
¶ 38; Pl.'s Opp'n Ex. A28 [“Nov. 6, 2010
Saccenti Ltr.”], ECF No. 36-29). Saccenti told Hall to
write Whitney and request representation if he believed that
he may “have an issue that could be raised in a
post-conviction proceeding.” (Nov. 6, 2010 Saccenti
Ltr.). Hall then wrote Whitney requesting the same Maryland
legal materials he requested in his November 2, 2010 letter
to OPD. (Hall Decl. ¶ 39; Compare Pl.'s
Opp'n Ex. A29, ECF No. 36-30, with Nov. 2, 2010
Hall Ltr.). On December 14, 2010, Handwerger, the OPD
attorney assigned to Hall's post-conviction case,
responded, stating that OPD “is not equipped to provide
the services” Hall requested. (Hall Decl. ¶ 40;
Pl.'s Opp'n Ex. A30 [“Dec. 14, 2010 Handwerger
Ltr.”], ECF No. 36-31). Handwerger then listed the
Maryland Code provisions and Maryland Rules that govern
habeas corpus petitions and explained the difference between
habeas proceedings and post-conviction proceedings, which are
governed by the Post Conviction Procedure Act
(“PPA”). (Dec. 14, 2010 Handwerger Ltr. at 1).
Handwerger stated that he had “enclosed a copy of the
current parole eligibility statute.” (Id. at
2). Handwerger did not, however, enclose a copy of that
statute or any of the other Maryland laws he cited. (Hall
Decl. ¶ 40).
again wrote Whitney on December 30, 2010. (Hall Decl. ¶
41; Pl.'s Opp'n Ex. A31, [“Dec. 30, 2010 Hall
Ltr.”], ECF No. 36-32). Hall explained that Handwerger
told him that OPD's Collateral Review Division was
“not equipped to provide” Hall with copies of
Maryland legal materials. (Dec. 30, 2010 Hall Ltr.). Hall
also informed Whitney that although OPD had assigned
attorneys to work on his case in 2007-2008, he had “not
received any communications” from them. (Id.).
Hall requested, among other things, copies of the Maryland
Rules and statutes governing habeas corpus petitions and the
PPA. (Id.). Hall did not receive a response or any
other correspondence from OPD until 2017. (Hall Decl. ¶
seven years later, on September 17, 2017, Handwerger wrote
Hall informing him that he had “completed his
review” of Hall's trial court
transcripts. (Hall Decl. ¶ 42; Pl.'s
Opp'n Ex. A32 [“Sept. 13, 2017 Handwerger
Ltr.”], ECF No. 36-33). Handwerger acknowledged that he
was aware Hall had “filed a law suit in federal court
claiming that Maryland is depriving [him] of access to the
courts, ” and that because Handwerger's name is
“mentioned in the pleadings, ” Hall may want to
consult with his attorney first to determine “if [Hall]
can or should talk to [Handwerger] about [his]
post-conviction case.” (Sept. 13, 2017 Handwerger
Ltr.). Handwerger emphasized that he did “not intend to
talk to [Hall] about any aspect of [Hall's] pending law
suit in federal court.” (Id.). Rather, he only
wanted “to talk about [Hall's] post conviction
April 9, 2015, Hall sued Stouffer, alleging that Stouffer had
violated Hall's right of access to Maryland courts by
failing to provide him with Maryland legal materials. (ECF
No. 1). On February 4, 2016, the Court entered an Order
denying without prejudice Defendant Stouffer's first
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment. (ECF No. 8). The Court requested that Stouffer
supplement his Motion with information regarding, in relevant
part: (1) whether Hall actually received the Handbook; (2)
any documentation indicating that Hall received the Handbook;
and (3) all records pertaining to Hall's LASI requests
and any responses.(Feb. 4, 2016 Order at 3, ECF No. 8).
February 16, 2017, the Court denied Stouffer's Motion to
Renew Motion for Summary Judgment and appointed counsel for
Hall. (ECF No. 17). The Court concluded that Stouffer's
supplemented Motion was “still insufficient” to
support the entry of summary judgment because there remained
significant disputes of material fact. (Feb. 16, 2017 Mem.
Op. at 3, ECF No. 17). The Court noted that Stouffer
“acknowledges that no documentation has been
located” to show that Hall received the Handbook, and
“[d]espite that acknowledgement, Defendant continues to
point to the [H]andbook to support the argument that [Hall]
was aware of and understood the process for obtaining access
to Maryland legal materials.” (Id.) (citation
omitted). In addition, Stouffer was “unable to locate
any LASI requests submitted by Hall or any response
thereto.” (Id.) (citation omitted). The Court
further noted that “[w]hile Hall contacted the Office
of the Public Defender and received assurances that it would
provide him assistance, the record does not demonstrate that
any actual assistance was given.” (Id. at 4).
The Court ultimately found that the “[r]esponses to
Hall's requests for legal materials that are in the
record demonstrate a lack of any real assistance.”
(Id.). Because Hall “is hampered in
articulating the underlying challenges he would mount because
of his lack of access to Maryland legal materials, ”
the Court appointed counsel for Hall. (Id. at 5).
August 14, 2017, Hall filed a First Amended Complaint and
Demand for Jury Trial (“First Amended
Complaint”). (ECF No. 25). In his First Amended
Complaint, Hall added Corcoran as a Defendant. (1st Am.
Compl. ¶ 8). Hall brings a single Count against Stouffer
and Corcoran under 42 U.S.C. § 1983 for violations of
his First and Fourteenth Amendment Right of Access to the
Courts. (Id. ¶¶ 78-85). Hall sues Stouffer
in his individual capacity and Corcoran in her official
capacity. (Id. ¶¶ 79-80). He seeks
declaratory relief as to both Defendants, monetary damages
from Stouffer, and injunctive relief from Corcoran.
September 18, 2017, Defendants filed a Motion to Dismiss or,
in the Alternative, Motion for Summary Judgment. (ECF No.
33). Hall filed an Opposition on October 12, 2017. (ECF No.
36). On November 9, 2017, Defendants filed a Reply. (ECF No.
41). Hall filed a Motion for Leave to File Surreply in
Opposition to Defendants' Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment on November 29,
2017. (ECF No. 42). On December 13, 2017, Defendants filed an
Opposition. (ECF No. 44). To date, the Court has no record
that Hall filed a Reply.
Motion for Leave to File Surreply
seeks leave of the Court to file a Surreply that addresses
the facts presented in the Stouffer Declaration, which is
attached to Defendants' Reply. Hall also moves to strike
the Declaration because it is procedurally improper.
Defendants do not oppose Hall filing a surreply. They do,
however, oppose Hall's request to strike the Stouffer
Declaration. The Court, therefore, only addresses the request
asserts that Federal Rule of Civil Procedure 6(c)(2) requires
that “[a]ny affidavit supporting a motion must be
served with the motion.” As a result, the Court should
disregard the Stouffer Declaration. The Court disagrees.
the plain language of Rule 6(c)(2) appears to support
Hall's argument, courts applying this Rule have adopted a
more lenient interpretation. As this Court has noted, nothing
in the Federal Rules of Civil Procedure precludes a movant
from submitting affidavits and other evidence that support a
reply brief in response to arguments raised in an opposition.
See, e.g., Allen v. Enabling Techs. Corp.,
No. WMN-14-4033, 2016 WL 4240074, at *4 (D.Md. Aug. 11,
2016); Robinson v. Empire Equity Grp., Inc., No.
WDQ-09-1603, 2009 WL 4018560, at *2 (D.Md. Nov. 18, 2009).
Here, the Stouffer Declaration details the procedures
Stouffer's administrative staff followed for processing
his mail. The information in the Stouffer Declaration
responds to at least two of Hall's Opposition arguments:
that there are disputes of material fact regarding whether
Stouffer's conduct violated Hall's First and
Fourteenth Amendment rights; and whether Stouffer's
deliberate indifference allowed Hall's constitutional
rights to be violated. Admittedly, however, the Stouffer
Declaration provides new evidence to which Hall should be
permitted to respond-and he does so in his proposed Surreply.
Court will, therefore, deny Hall's request to strike the
Stouffer Declaration and grant his Motion for Leave to File
Motion to Dismiss or, in the Alternative for
Conversion of ...