United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants Deputy Secretary
Joanne Throwe (“Deputy Secretary Throwe”),
Captain Edward Johnson (“Captain Johnson”),
Captain Charles Vernon (“Captain Vernon”), and
Superintendent Robert K. Ziegler's (“Superintendent
Ziegler”) Motion to Dismiss and/or for Summary Judgment
(ECF No. 25) and Captain Edward Johnson's Motion to
Dismiss Count III of the Complaint (ECF No.
This 42 U.S.C. § 1983 (2018) action arises from
Plaintiff Norris Paul Carey, Jr.'s termination from the
Maryland Department of Natural Resources (“DNR”)
and the revocation of his Law Enforcement Officer Safety Act
(“LEOSA”), 18 U.S.C. § 926C (2018),
certification card. The Motions are ripe for disposition, and
no hearing is necessary. See Local Rule 105.6 (D.Md.
2018). For the reasons outlined below, the Court will grant
December 31, 2013, Carey retired from the Maryland Natural
Resources Police (“MNRP”) after twenty-six years
of service. (Am. Compl. ¶ 8, ECF No. 21). Three months
prior to retiring from MNRP, Carey received a Notification of
Complaint stating that Carey improperly communicated with
another MNRP employee who was under investigation about the
content of the investigation. (Id. ¶¶
10-11). Captain Johnson, who was Captain of the Internal
Affairs Unit at that time, oversaw the investigation.
(Id. ¶ 13). Carey admitted to speaking with the
employee in question, but denied disclosing any information
about the investigation. (Id. ¶ 12). MNRP never
brought any charges against Carey related to the Notice of
Complaint, and Carey retired from MNRP in good standing.
(Id. ¶¶ 19, 22).
August 12, 2015, Carey began working for DNR. (Id.
¶ 23). On April 25, 2017, Carey received a LEOSA
certification, which allowed him to carry a semi-automatic
weapon. (Id. ¶ 69). On May 25, 2017, three
months before Carey's contract expired, Deputy Secretary
Throwe abruptly fired Carey. (Id. ¶¶
29-32). She did not give Carey a reason for his termination,
and prior to being terminated, Carey's supervisor had
assured him that his contract would be renewed. (Id.
alleges that he was fired from DNR in retaliation for two
blog posts he submitted anonymously to the Salisbury News
Blog (the “Blog”) about Captain Johnson in
December 2016 and January 2017. (Id. ¶¶
44-59). The first blog post (the “December Post”)
displayed MNRP's Code of Conduct and Agency Values
alongside photographs from Captain Johnson's personal
Facebook page of women in “sexually provocative poses
and the back of a man wearing a Pagan motorcycle
jacket.” (Id. ¶ 52). The second post (the
“January Post”) displayed photographs of Captain
Johnson's assault weapon and his corresponding comments
on Facebook, which made light of guns and gun violence.
(Id. ¶ 59). One particular comment stated,
“I don't think the game warden can catch us . . .
January 21, 2017, an anonymous commenter on Carey's
January Post stated: “Since you seem to be protected on
this site Paul Carey your deeds will be spread far and wide
elsewhere including disparaging the very Department
you're still employed by-for now . . . .”
(Id. ¶ 60). On April 28, 2017, Captain Vernon
called Carey and informed him that he had not retired from
the MNRP in good standing and therefore had to return his
LEOSA certification card. (Id. ¶ 70). Carey,
confused by this assertion, checked his retirement status
with an official of the Maryland Police and Correctional
Training Commission who confirmed that he retired in good
standing. (Id. ¶ 73). Carey therefore refused
to return his LEOSA card, but stopped carrying a concealed
firearm. (Id. ¶¶ 74, 81-82). Between May
9, 2017 and May 25, 2017-the date of Carey's termination
from DNR-several MNRP officials repeatedly contacted
Carey's supervisors at DNR to inform them that Carey had
not retired in good standing and that his LEOSA card was
invalid. (Id. ¶ 80).
this time, Carey was also participating as a polygraph expert
in an unrelated lawsuit regarding the winner of a fishing
competition, the White Marlin Open (the “White Marlin
Litigation”). (Id. ¶¶ 86-90). On May
8, 2017, Captain Johnson emailed Carey about the White Marlin
Litigation in what Carey perceived to be a threatening
manner. (Id. ¶ 92). Captain Johnson's email
stated: “What is the date and time for the White Marlin
Open trial in Baltimore Federal Court?” (Id.
¶ 91). An anonymous post also appeared on the Blog that
stated, “[c]onsider the drama in court when they learn
one of the polygraph examiners has a less than stellar
background and lacks integrity.” (Id. ¶
93). On June 15, 2017, Captain Johnson wrote on the Facebook
page for the White Marlin Open: “Too bad one of the
polygraphers-Paul Carey, has the integrity of a lifer on
death row.” (Id. ¶ 101).
January 18, 2018, Carey sued the MNRP, Deputy Secretary
Throwe, Captain Johnson, and Captain Vernon. (ECF No. 1). On
May 3, 2018, Carey filed an Amended Complaint that terminated
MNRP as a Defendant and added MNRP Superintendent Ziegler as
a Defendant. (ECF No. 21).
three-Count Amended Complaint, Carey alleges: First Amendment
free speech retaliation under 42 U.S.C. § 1983 against
Deputy Secretary Throwe, Captain Johnson, and Captain Vernon
(Count I); violation of Carey's right to a LEOSA
certification card under § 1983 against Superintendent
Ziegler and Captain Vernon (Count II); and defamation per se
against Captain Johnson (Count III). (Am. Compl. ¶¶
105-32). Carey seeks declaratory and injunctive relief as
well as monetary damages. (Id. at 17-20).
April 13, 2018, Captain Johnson filed a Motion to Dismiss
Count III of the Complaint. (ECF No. 13). Carey filed an
Opposition on April 25, 2018. (ECF No. 17). To date, the
Court has no record that Captain Johnson filed a Reply.
2, 2018, Defendants filed a Motion to Dismiss and/or for
Summary Judgment. (ECF No. 25). On August 7, 2018, Carey
filed an Opposition. (ECF No. 29). On September 24, 2018,
Defendants filed a Reply. (ECF No. 30).
Defendants' Motion to Dismiss and/or for Summary
Conversion of Defendants' Motion
style their Motion as a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6) or, in the alternative, for
summary judgment under Rule 56. A motion styled in this
manner implicates the Court's discretion under Rule
12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery
Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011),
aff'd, 684 F.3d 462 (4th Cir. 2012). Pursuant to
Rule 12(d), when “matters outside the pleadings are
presented to and not excluded by the court, the [Rule
12(b)(6)] motion must be treated as one for summary judgment
under Rule 56.” The United States Court of Appeals for
the Fourth Circuit has articulated two requirements for
proper conversion of a Rule 12(b)(6) motion to a Rule 56
motion. First, that the “parties be given some
indication by the court that it is treating the 12(b)(6)
motion as a motion for summary judgment” and second,
“that the parties first ‘be afforded a reasonable
opportunity for discovery.'” Greater Balt. Ctr.
for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d
264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761
F.2d 175, 177 (4th Cir. 1985)).
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. See Moret v.
Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).
“[T]he party opposing summary judgment ‘cannot
complain that summary judgment was granted without discovery
unless that party had 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)). Rule 56(d) provides that the
Court may deny or continue a motion for summary judgment
“[i]f a nonmovant shows by affidavit or declaration
that, for specified reasons, it cannot present facts
essential to justify its opposition.” “[T]he
failure to file an affidavit under Rule 56[(d)] is itself
sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.” Nguyen v. CNA
Corp., 44 F.3d 234, 242 (4th Cir. 1995) (quoting
Paddington Partners v. Bouchard, 34 F.3d 1132, 1137
(2d Cir. 1994)).
Defendants caption their Motion in the alternative for
summary judgment and attach supporting affidavits for the
Court's consideration. In response, Carey filed a Rule
56(d) affidavit, requesting discovery. (Carey Aff., ECF No.
29-1). In light of Carey's affidavit and because the
Court does not rely on the supporting affidavits ...