United States District Court, D. Maryland
L. Hollander United States District Judge.
Michael McFadden, the self-represented plaintiff, is a
Maryland Division of Correction (“DOC”) prisoner.
Pursuant to 42 U.S.C. § 1983, he initially filed a civil
rights action against Officer S. Lowicki, a DOC employee at
Eastern Correctional Institution (“ECI”), seeking
$100, 000 in damages. In his unverified complaint, McFadden
claimed that Lowicki took his mattress on the evening of
August 16, 2017, and did not return it for five days. As a
result, McFadden slept “on the cold, steel bunk.”
ECF 1 at 2.
April 30, 2018, prior to Lowicki's response, McFadden
amended his complaint to include additional claims and
defendants. ECF 10 (“Amended Complaint”).
Specifically, McFadden claimed that on August 18, 2017,
Registered Nurse Nicole Frey ignored McFadden's statement
that he was suicidal, instead stating she “don't
give a fuck.” Id. at 1. He named “Sgt.
J.B., ” an officer on the 8 a.m. to 4 p.m. shift,
for failing to feed him lunch on August 18, 2017, and Officer
Parker and Lt. Elliott for failing to feed him, respectively, on
one occasion following his transfer to the suicide unit and
on one occasion on November 17, 2017, due to a belief that
McFadden had assaulted a fellow officer. Id. at 2.
McFadden states in his Amended Complaint that these
additional allegations are “true and correct”
under “penalty of perjury.” Id. at 3.
the sole Medical Defendant, has moved to dismiss the suit or,
alternatively, for summary judgment. ECF 21. The motion is
supported by a memorandum of law (ECF 21-3) (collectively,
“Frey Motion”) and exhibits. Frey argues that she
did was not deliberately indifferent to McFadden's
medical needs, did not commit malpractice, never knew
McFadden had threatened suicide, and did not curse at him.
ECF 21-3 at 4-10. McFadden filed an opposition to the Frey
Motion (ECF 23), and Frey replied. ECF 24.
Defendants Lowicki, Elliott, and Parker also seek dismissal
or summary judgment. ECF 25. Their motion is supported by a
memorandum (ECF 25-1) (collectively, Correctional
Defendants' Motion) and exhibits. They contend that the
missing mattress initially was not returned because its
absence was not reported; that McFadden's threats of
suicide resulted in his prompt placement in the
Administrative Segregation Observation Area
(“ASOA”), where mattresses were not permitted;
and that neither Parker nor Elliott was assigned to deliver
meals to prisoners during the times alleged in the Amended
Complaint. ECF 25-1 at 2-6. The Correctional Defendants also
argue that McFadden failed to exhaust administrative remedies
concerning these allegations prior to initiating his lawsuit.
Id. at 6. McFadden has filed an
opposition. ECF 27.
review of the papers filed, the Court finds a hearing on the
pending matters is unnecessary. See Local Rule 105.6
(D. Md. 2016). As set forth herein, defendants'
dispositive motions, construed as motions for summary
judgment, shall be GRANTED.
is 27 years old with a medical history of dental problems and
depression. ECF 21-5, Frey Affidavit, ¶ 2. McFadden
claims that on August 18, 2017, he threatened suicide. Frey
came to his cell and allegedly stated “‘why are
you telling me I don't give a fuck.'” ECF 10 at
presents a vastly different version of events. She claims that
on August 18, 2017, she was summoned to McFadden's cell
for a medical clearance assessment to determine whether he
should be transferred to the Administrative Segregation
Observation Area (“ASOA”), a special suicide
watch area, after he threatened self-harm during a
conversation with a psychiatric nurse. ECF 21-5 (Frey
Affidavit), ¶ 4. When Frey asked plaintiff if he was
injured, McFadden refused to answer and did not express an
intent to injure himself. Id., ¶ 6. Frey found
no physical injury upon visual examination and cleared
McFadden for transfer to the ASOA. Id., ¶ 8.
The parties do not indicate whether they had further contact
following this incident.
Conditions of Confinement Claim
complains that his Eighth Amendment right to proper
conditions of confinement was violated when he was denied a
mattress in his cell for five days, commencing on August 16,
2017, and was denied a meal on several occasions. The
Correctional Defendants provide declarations and record
evidence explaining the denial of the mattress and, while
denying involvement with regard to meal service, provide
information that may explain why McFadden occasionally missed
Standard of Review
motions are styled as motions to dismiss under Fed.R.Civ.P.
12(b)(6) or, in the alternative, for summary judgment under
Fed.R.Civ.P. 56. ECF 12. Motions styled in this manner
implicate 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).
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); see
Adams Housing, LLC v. The City of Salisbury, Maryland,
672 Fed. App'x 220 (4th Cir. 2016) (per curiam). However,
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). McFadden has
received such notice here (ECF 22; ECF 26) and has responded.
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.” 5C
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 165-67.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see
Putney v. Likin, 656 Fed. App'x 632, 638 (4th Cir.
2016); McCray v. Maryland Dep't of
Transportation, 741 F.3d 480, 483 (4th Cir. 2015). A
party “needs an ‘adequate opportunity' to
present its case and ‘demonstrate a genuine issue of
material fact.'” Adams Housing, LLC, 672
Fed. App'x at 222 (citation omitted). However, “the
party opposing summary judgment ‘cannot complain that
summary judgment was granted without discovery unless that
party has made an attempt to oppose the motion on the grounds
that more time was needed for discovery.'”
Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
raise adequately the issue that discovery is needed, the
non-movant typically must file an affidavit or declaration
pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, it cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing affidavit requirement of former Rule
“to justify a denial of summary judgment on the grounds
that additional discovery is necessary, the facts identified
in a Rule 56 affidavit must be ‘essential to [the]
opposition.'” Scott v. Nuvell Fin. Servs.,
LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011) (alteration in
original) (citation omitted). A nonmoving party's Rule
56(d) request for additional discovery is properly denied
“where the additional evidence sought for discovery
would not have by itself created a genuine issue of material
fact sufficient to defeat summary judgment.” Strag
v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954
(4th Cir. 1995); see Amirmokri v. Abraham, 437
F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266
Fed.Appx. 274 (4th Cir.), cert. denied, 555 U.S. 885
nonmoving party believes that further discovery is necessary
before consideration of summary judgment, the party fails to
file a Rule 56(d) affidavit at his peril, because
“‘the failure to file an affidavit . . . is
itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.'”
Harrods, 302 F.3d at 244 (citations omitted);
see Dave & Buster's, Inc. v. White Flint Mall,
LLLP, 616 F. App'x, 552, 561 (4th Cir. 2015). But,
the nonmoving party's failure to file a Rule 56(d)
affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth
Circuit has placed “‘great weight'” on
the Rule 56(d) affidavit, and has said that a mere
“‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in
opposition to a motion for summary judgment is not an
adequate substitute for [an] affidavit, '” the
appellate court has “not always insisted” on a
Rule 56(d) affidavit. Id. (internal citations
to the Fourth Circuit, failure to file an affidavit may be
excused “if the nonmoving party has adequately informed
the district court that the motion is premature and that more
discovery is necessary” and the “nonmoving
party's objections before the district court
‘served as the functional equivalent of an
affidavit.'” Harrods, 302 F.3d at 244-45
(internal citations omitted); see also Putney, 656
Fed. App'x at 638; Nader v. Blair, 549 F.3d 953,
961 (4th Cir. 2008). “This is especially true where, as
here, the non-moving party is proceeding pro se.”
Putney, 656 Fed. App'x at 638.
has not requested discovery. Nor is it apparent that
additional discovery is needed. In light of the foregoing, I
am satisfied that it is appropriate to address the motions,
which rely on ...