United States District Court, D. Maryland
ELLIOT M. KNOX, #2926104, Plaintiff
THE STATE OF MARYLAND and OFFICERS AT THE NORTH BRANCH CORRECTIONAL INSTITUTION, NANCY K. KOPP, Treasurer, LT. THOMAS SAWYERS, SGT. GREGORY FORNEY, CO II RONALD SAVILLE, CO II MICHAEL WALTERS, CO II JASON FRANTZ, CO II DAVID REED,  Defendants
L. Hollander, United States District Judge.
Knox, a Maryland prisoner incarcerated at North Branch
Correctional Institution (“NBCI”), has filed a
verified Complaint alleging he was subjected to unnecessary
use of excessive force by NBCI officers on May 11, 2017, and
thereafter he was falsely charged with an infraction to cover
up the officers' misconduct. Knox, who is
self-represented, seeks compensatory and punitive damages of
$1, 000, 000 from each correctional officer involved, $200,
000 from the State of Maryland under the Maryland Tort Claims
Act,  and injunctive relief mandating his
transfer from NBCI. ECF 1. Knox filed a supplement to the
Complaint on May 24, 2018. ECF 30.
State of Maryland, Sawyers, Forney, Saville, Walters, Frantz,
and Reed filed a Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment. ECF 22. It is supported by a
memorandum (ECF 22-1) (collectively, the
“Motion”) and numerous exhibits. Defendants also
filed a supplement to the motion. See ECF 25. Knox
opposes the Motion (ECF 26; ECF 26-1) and also moves for
emergency injunctive relief. ECF 27; ECF 29.
hearing is necessary to resolve the Motion. See
Local Rule 105.6 (D. Md. 2016). For the reasons noted herein,
defendants' dispositive motion shall be GRANTED in part
and DENIED in part; Knox's Motion for a Temporary
Restraining Order and Preliminary Injunction shall be DENIED;
and Knox's previous request for appointment of counsel,
denied without prejudice (ECF 10; ECF 24) shall be
reconsidered and GRANTED.
Statement of Facts
verified Complaint, Knox states that on the morning of May
11, 2017, he was called into a poorly lighted holding cell in
NBCI's Housing Unit #2 (“HU-2”) and
questioned by Forney and Saville about a violation of shower
rules. ECF 1 at 5. Part way through the conversation, Sawyers
entered the cell, aggressively ordered Knox to “get
over here, ” and grabbed Knox's wrist. Id.
at 5-6. When Knox pulled back, Sawyers ordered Saville to
call for assistance. Id. at 6. Walters, Frantz,
Reed, and other unidentified officers responded, kicking and
punching Knox, who had been restrained by Sawyers in a
front-facing headlock. Id. at 6. Knox, who claims
injury to his neck, hands and body, was then charged with a
disciplinary infraction. Id. at 7.
version of events is presented by way of declarations and
verified prison records. They contend that Knox became
agitated during the discussion about shower policies, stating
“what you all need is a good beat down.” ECF 22-3
(NBCI Use of Force (“UOF”) Report #17-038) at 3.
Saville, Forney, and Sawyers viewed this statement as a
threat. Id. When ordered by Sawyers to turn around
for handcuffing, Knox stood up, walked towards Lt. Sawyers in
a threatening manner, then stopped and turned around with his
back to Sawyers, who took control of Knox's right wrist.
Id. Despite orders to turn around for cuffing, Knox
passively resisted by refusing to place his hands behind his
back. Id. Forney and Saville turned Knox while
trying to control his arms, to no avail. Id. Sawyers
pushed Knox down and a struggle ensued, with Sawyers
controlling Knox's head and upper body while Forney
cuffed Knox's right wrist. Id. Walters responded
to control Knox's right arm, while Saville and Frantz
attempted to control Knox's left arm. Id. Frantz
struck Knox in the back of the leg with Frantz's right
knee while Saville cuffed Knox's left wrist. Id.
was escorted to HU-1's strip cage by Forney, Saville,
Frantz, Walters, and Reed to await the arrival of medical
staff. However, Knox refused medical evaluation. Id.
at 3, 6 and 18; ECF 22-4 at 4. Knox, who was placed in Cell
#1-C-22, was photographed, as were Sawyers, Forney, Saville,
and Frantz. ECF 22-3 at 20-23.
Intelligence and Investigative Division (“IID”)
was notified via an Officer's Use of Force Incident
Report. ECF 22-3 at 3, 14-15. Knox, who refused to write a
statement (ECF 22-3 at 17), received a notice of infraction
charging him with violating inmate rules #104 (use of
threatening language), #312 (interfering with/resisting the
duties of staff/refusing to permit a search of a person,
item, area or location), and #400 (disobeying a direct lawful
order). Id. at 16- 17; ECF 22-5 (May 11, 2017,
Notice of Infraction and related forms). IID investigator Lt.
Patrick Speir avers that, based on his review, the amount of
force used by staff during the incident was appropriate, and
consistent with all applicable policies as well as the
Maryland Department of Public Safety and Correctional
Services (“DPSCS”) Use of Force Manual. ECF
22-12, ¶15; see also ECF 22-3 at 1. Further,
defendants declare under oath that their versions of the
event and its aftermath are true and accurate. ECF 22-6
through ECF 22-12.
recording, referenced in defendants' use of force
incident reports, captured the incident. ECF 22-12, ¶ 5;
ECF 22-14. On April 10, 2018, this Court directed defendants
to provide any video evidence to the Court within 21 days.
ECF 24 at 2. In response, defendants stated that the video of
the incident no longer exists. ECF 25. Defendants reference
their Memorandum in Support of Summary Judgment (ECF 22-1 at
7, 8, 10, and 11-12) and the Declarations of Patrick Speir,
Jason Harbaugh, and Christopher Wedlock (ECF 22-14,
¶¶ 7, 11, 14; ECF 22-15, ¶¶ 5-8; ECF
22-16, ¶¶ 6, 14-15, 20-21), asserting the video of
the incident was taped over. According to defendants, the
loss of the video was inadvertent, due to an error in
cataloguing the time of the incident, which allowed the
destruction of the necessary video while a video unrelated to
the incident was archived and preserved. Id.
defendants contend that Speir was able to view video coverage
immediately after the incident (prior to its destruction),
and that Hearing Officer Brent also was able to view it at
Knox's first scheduled adjustment hearing, set for June
15, 2017. This hearing, however, was postponed because
Frantz, a witness, was unavailable. Because the hearing did
not occur, the video was not presented as
evidence. ECF 22-14, ¶ 10; ECF 22-12, ¶
12; ECF 22-15, ¶ 6. The adjustment hearing, rescheduled
for August 15, 2017, was again postponed so that Sawyers,
Forney, and Saville could appear as witnesses. ECF 22-14,
¶ 11; ECF 22-12, ¶ 13; ECF 22-15, ¶ 7.
January 9, 2018, Hearing Officer Brent requested the video
and, when he was advised that the video was unavailable, he
dismissed the adjustment charges. ECF 22-14 at ¶17; ECF
22-17. After Brent dismissed the charges, Wedlock submitted a
request to Warden Bishop to remand the adjustment proceedings
for rehearing. ECF 22-14 at ¶ 9. The request for remand
remains pending. ECF 22-14, ¶ 22
Standard of Review
Motion is styled as a motion to dismiss under Fed.R.Civ.P.
12(b)(6) or, in the alternative, for summary judgment under
Fed.R.Civ.P. 56. ECF 22. A motion styled in this manner
implicates 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); see Adams Hous., LLC
v. The City of Salisbury, Maryland, 672 Fed.Appx. 220,
222 (4th Cir. 2016) (per curiam). 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). But, 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).
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.
general, 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. 2011); see Putney v. Likin, 656 Fed.Appx.
632, 638 (4th Cir. 2016); McCray v. Maryland Dep't of
Transp., 741 F.3d 480, 483 (4th Cir. 2015). 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)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLLP, 616
Fed.Appx. 552, 561 (4th Cir. 2015).
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)) “[T]o 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. 2008),
cert. denied, 555 U.S. 885 (2008).
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). But,
the nonmoving party's failure to file a Rule 56(d)
affidavit does not obligate a court to issue a summary
judgment ruling that is obviously premature. And, a court
“should hesitate before ...