United States District Court, D. Maryland
J. HAZEL, UNITED STATES DISTRICT JUDGE
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. 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.
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.
amended the Complaint at the direction of the Court on April
19, 2019. 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. 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.
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
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). Declaration of
Chaplain Kevin Lamp, ECF No. 14-3 ¶¶3, 8, 9, 10,
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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 ...