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McFadden v. Lowicki

United States District Court, D. Maryland

October 22, 2018

ALLEN MICHAEL McFADDEN, #562-393, Plaintiff
v.
OFFICER SHAWN LOWICKI, SGT. J.B., LT. STEPHEN ELLIOTT, OFFICER MELISSA PARKER, NICOLE FREY, R.N., Defendants[1]

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge.

         Allen 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.[2] 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.

         On 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., ”[3] 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[4] 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.

         Frey, 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.

         Correctional 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.[5] ECF 27.

         After 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.

         I. Background

         A. Medical Claim

         McFadden 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 1.

         Frey presents a vastly different version of events.[6] 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.

         B. Conditions of Confinement Claim

         McFadden 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 a meal.

         II. Standard of Review

         Defendants' 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).

         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.” 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).[7] McFadden has received such notice here (ECF 22; ECF 26) and has responded.

         A 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.

         Generally, 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. 1996)).

         To 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 56(f))

         Notably, “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 (2008).

         If a 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 omitted).

         According 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.

         McFadden 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 ...


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