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Moore v. Bishop

United States District Court, D. Maryland

March 25, 2019

ROBERT GARY MOORE, Plaintiff,
v.
BISHOP, Warden of N.B.C.I. COMMISSIONER of N.B.C.I., (DOC) CHAPLAIN LAMP, JOHN DOE, [1]SERGEANT THOMAS, [2] Defendants.

          MEMORANDUM OPINION

          GEORGE J. HAZEL, UNITED STATES DISTRICT JUDGE

         Plaintiff Robert Gary Moore is a self-represented litigant incarcerated at North Branch Correctional Institution (NBCI) in Cumberland, Maryland. In this civil rights action filed pursuant to 42 U.S.C. §1983, he alleges that Defendants violated his rights under the First and Fourteenth Amendments. ECF No. 3. Pending before the Court is a Motion to Dismiss or, Alternatively, for Summary Judgment filed by the Commissioner of Corrections, Chaplain Lamp, and Sgt. Thomas. ECF No. 14.[3] Despite being notified of his right to file an Opposition with exhibits and/or a declaration in support of his Complaint, Moore did not do so. ECF Nos. 15 & 16. No. hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the following reasons, Defendants' Motion, ECF No. 16, treated as a Motion for Summary Judgment, will be granted.

         I. BACKGROUND

         In his initial Complaint, Moore alleges that he is Jewish, that he asked to be placed on a kosher diet, and that “the jail” destroyed his Administrative Remedy Procedure (ARP) requests. ECF No. 1 at 4. Along with the Complaint, Moore filed a copy of an ARP “appeal” he sent to the Commissioner of Correction, dated March 4, 2018, and stamped by the Inmate Grievance Office (“IGO”) as received on March 8, 2018. In the appeal he complained that he had not received a response to his ARP of November 17, 2017, which complained he was denied kosher food. ECF No. 1 at 7. He also wrote “the pastor for NBCI” more than eight times between October 18, 2017 and February 20, 2018. ECF No. 1 at 8.

         Moore amended the Complaint at the direction of the Court on April 19, 2019.[4] ECF Nos. 2 & 3. He alleged that between November 9, 2017 and February 9, 2018, he sent eight letters to the Chaplain asking for a kosher diet, and as of April 14, 2018, when he filed his Amended Complaint, he had not received a kosher diet. ECF No. 3 at 2. Moore also alleged that he submitted an ARP on November 9, 2017, and Sgt. Thomas destroyed it.[5] ECF No. 3 at 3. Moore did not identify the subject of the allegedly destroyed ARP. ECF No. 3 at 3. Moore alleges the “IGO denied my appeal. This Court already have [sic] the IGO decision.” ECF No. 3 at 2; see also ECF 1-1 (March 8, 2018 letter from ARP coordinator returning March 8, 2018 ARP or letter because intent of filing could not be discerned). As relief, Moore asked to be placed on a kosher diet, awarded $20, 000 from all four Defendants, and “to correct ARP procedures.” ECF No. 1 at 3; ECF No. 3 at 2.

         Sgt Thomas denies destroying ARP requests and declares that when an inmate gives him an ARP request, he signs it, places the yellow copy in the mailbox for return to the inmate, and delivers the original white copy to the ARP Office. Thomas denies interfering with Moore's efforts to access the ARP process. Declaration of Sgt. William Thomas, ECF No. 14-7 ¶ 3.

         Defendants explain that to participate in the Religious Program Diet, including the kosher diet, an inmate must complete a form approved by the Director of Programs and Services and submit it to the facility chaplain. An inmate is eligible to participate in religious diet program based on the inmate's recognized participation in a religious faith group listed under OPS.140.0002 D (5).[6] Declaration of Chaplain Kevin Lamp, ECF No. 14-3 ¶¶3, 8, 9, 10, 11.

         Inmates designate and register their religious preference on a Religious Preference Registration form. Inmates may change their affiliation by submitting a new form with a new election. After registration, an inmate may receive passes to participate in religious activities. The applicant's designation of religious faith on the Religious Preference Registration form is considered when evaluating the Religious Diet Program application. Lamp Declaration ECF No. 14-3.

         Moore registered as a Protestant in 2012. Declaration of John White, Correctional Case Manager Specialist II. ECF No. 14-4 at 2. On July 19, 2013, Moore submitted a Religious Preference Registration form to change his religion to “none” and selected the Master Cycle Menu for his meals. ECF No. 14-4 at 3-4. In November of 2017, Moore was placed on a 2400 calorie diet, which is a medical, not religious diet. Declaration of Parrish Kammauf, NBCI Dietary Manager, Decl. ECF No. 14-5 ¶4.

         Defendants assert that when Moore initiated this lawsuit, he had not submitted the form necessary to apply to participate in the religious diet program and there was no record of a Religious Preference Registration form to change his 2013 designation. Lamp Decl. ECF No. 14-3 ¶¶ 6, 12-13; Kammauf Decl. ECF No. 14-5 ¶ 4. Since then, Moore has been provided the requisite forms to change his religious preference and apply to the Religious Diet Program. In August of 2018, Moore filed to designate Judaism as his religious preference. Lamp Decl. ECF No. 14-3 ¶ 14. If Moore is approved for a kosher diet, he will need to provide the Medical Department with a Release of Responsibility to remove him from the medical diet and place him on the kosher diet. Kammauf Decl. ECF No. 14-5 ¶ 5.

         Defendants maintain that Moore has submitted numerous ARP requests, some of which concern his diet, but none alleged he was denied kosher meals. Declaration of John White, Correctional Case Management Specialist, II, ECF No. 14-4 at 1, 5-9; Declaration of Samiyah Hassan, Inmate Grievance Office (IGO), ECF No. 14-6 at 1 ¶2.

         II. STANDARD OF REVIEW

         Defendants style their motion as a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment. When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court considers only the facts in the complaint or “integral to the complaint.” Sec'y of State for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). However, Rule 12(d) requires courts to treat a motion to dismiss as a motion for summary judgment when the court considers matter outside the pleadings. Fed.R.Civ.P. 12(d). Before converting a motion to dismiss to one for summary judgment, courts must give the nonmoving party “a reasonable opportunity to present all the material that is pertinent to the motion.” Id. Consistent with this rule, the nonmoving party must have some indication that the court will treat the motion to dismiss as a motion for summary judgment and “must be afforded a reasonable opportunity for discovery” if it is essential to the nonmoving party's ability to oppose the motion. Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (citation omitted).

         It is obvious when the moving party styles its motion as a “Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ” as is the case here, that the Court may treat the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.2d 253, 260-61 (4th Cir.1998). To show that a reasonable opportunity for discovery has not been afforded, the nonmoving party must file an affidavit or declaration under Rule 56(d) explaining why “for specified reasons, it cannot present facts essential to justify its opposition, ” Fed.R.Civ.P. 56(d), or otherwise put the district court on notice of the reasons why summary judgment is premature, see Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244-45 (4th Cir. 2002). Here, Plaintiff has not filed a Rule 56(d) affidavit or otherwise requested discovery in this matter. Under these circumstances, the Court will construe Defendant's motion as a Motion for Summary Judgment.

         Pursuant to Federal Rule of Civil Procedure 56, the Court grants summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in the record, not simply assertions in the pleadings. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). The nonmoving party has the burden to show a genuine dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A fact is “material” if it “might affect the outcome of the suit ...


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