United States District Court, D. Maryland
L. Hollander United States District Judge
case arises from an isolated error at a Maryland prison on
October 25, 2017, which resulted in the provision of sausages
to inmates at breakfast that contained 2% or less of pork
self-represented plaintiff, Michael Cates, is a State inmate
currently housed at Eastern Correctional Institution
(“ECI”) in Westover, Maryland. He brings this
civil action pursuant to 42 U.S.C. §1983 against ECI
Warden Ricky Foxwell, Dietary Manager Robert Troxell,
Officer Dale Childers, and Captain Antoinette Perry
(collectively, “Correctional Defendants”), and
Wexford Health Sources, Inc.
(“Wexford”). ECF 1. Claiming that consumption of
pork is against his Christian religion, Cates seeks
compensatory and punitive damages of $3, 000, 000 for
defendants' alleged violation of his First Amendment
rights. Id. at 3.
Correctional Defendants have moved to dismiss or, in the
alternative, for summary judgment. ECF 12. Their motion is
supported by a memorandum of law (ECF 12-1) (collectively,
“Correctional Motion”) and exhibits. Wexford has
moved to dismiss for failure to state a claim (ECF 13),
supported by a memorandum. ECF 13-1 (collectively,
“Wexford Motion.”). Pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), the court
informed Cates that the failure to file a response in
opposition to the defendants' motions could result in
dismissal of the Complaint. ECF 14; ECF 15. Cates filed a
response in opposition to the Correctional Motion but did not
respond to the Wexford Motion. ECF 16. The Correctional
Defendants did not reply.
review of the record, the exhibits, and the applicable law,
the court deems a hearing unnecessary. See Local
Rule 105.6 (D. Md. 2018). The Correctional Motion shall be
construed as a motion for summary judgment and shall be
granted. I shall also grant Wexford's Motion.
states that on October 25, 2017, while he was incarcerated at
ECI, he ate breakfast, consisting of what he believed to be
maple sausage links. ECF 1 at 2. Later that day, Cates was
informed by an inmate who had prepared breakfast that the
sausages were “pork sausages.” Id. Cates
claims that he “has been a Christian his entire life,
” and consuming pork is against his religion.
Id. at 2-3. Plaintiff acknowledges that he did not
file an Administrative Remedy Procedure (“ARP”)
about the incident, explaining that he was trying to get a
job in the ECI kitchen and did not want to ruin his chances
by filing an ARP against the dietary officers. Id.
at 3. As a result of the occurrence, Cates claims that he has
suffered psychologically, mentally, and spiritually.
was the Correctional Dietary Manager at ECI during the
relevant time. ECF 12-3 (Troxell Declaration), ¶ 1. In
his Declaration (ECF 12-3), Troxell avers that Cates never
submitted any written request for a non-pork diet on the
basis of his Christian faith. Id. &5. To
Troxell's knowledge, during the 27 years of his tenure in
the “Correctional Dietary department, ” no inmate
has ever requested a non-pork diet on the basis of a
purported Christian faith. Id.
maintains that, in accordance with the policy of the Maryland
Department of Public Safety and Correctional Services
(“DPSCS”), “no prison inmate food items of
any kind may contain any pork or pork by-products out of
general consideration of established Muslim and Jewish
religious dietary restrictions, which forbid consumption of
any pork[.]” Id. at ¶3. Rather,
“[c]ertified Halal and Kosher diets are provided for
Muslim and Jewish inmates, respectively, on the basis of
widely recognized and established Muslim and Jewish religious
convictions.” Id. at ¶4. However, those
religious diets are “only provided to inmates who
submit a written dietary request and have been approved by
the prison chaplain once the chaplain has interviewed them
individually to ascertain the veracity and sincerity of their
respective religious faiths to warrant accommodation of a
religious diet rather than the general population
clear that, at the relevant time, the DPSCS did not order
sausages with any pork. An Invoice dated September 27, 2017,
reflects that ECI contracted to purchase 192 cases of turkey
maple sausage links from a commercial food vendor. ECF 12-2
at 2. Notably, the Invoice expressly states, in part:
“Sausage, Turkey Maple Link . . . .” Id.
Payment was due by October 27, 2017. Id. And, the
Purchase Requisition (id. at 3) indicates an
“Item Description” of “Turkey Sausage
Links.” Further, the “Receiving Report”
describes the “articles” as “Turkey Sausage
links.” Id. at 4.
relevance, all commercial vendors supplying inmate food items
to ECI are explicitly informed prior to sale that any food
items must not contain any pork or pork by-products, in
accordance with DPSCS policies. See ECF 12-3,
¶6. Troxell avers that ECI relies on the commercial food
vendors to comply with this policy with respect to the inmate
food items supplied to ECI. Id. The Correctional
Defendants also expect ECI staff to comply with the
Directives and ECI policies regarding inmate meals.
Id. ¶ 7; ECF 12-5, ¶ 3. Correctional
defendants do not dispute, however, that “sausage that
contained 2% or less dehydrated pork stock” was served
to ECI inmates on October 25, 2017. See ECF 12-1 at
staff investigated the incident after a formal complaint was
lodged by another inmate. See ECF 12-2 at 5-7.
During the investigation, a correctional officer assigned to
the “feed up” meal duty for October 25, 2017,
provided a statement indicating that, to the officer's
knowledge, no pork products were purchased or served in the
DOC [Division of Correction], that the food item in question
was turkey sausage, and that eggs were available if any
inmate wanted a substitute. Id. at 7. Thus, Foxwell
responded to the inmate's complaint as follows,
id. at 5:
Your request for Administrative Remedy has been investigated
and is Meritorious in Part; upon review of reports from staff
and supporting documentation, it has been determined that
sausage that contained 2% or less dehydrated pork stock on
10/25/17. This was served as an oversite [sic] by multiple
departments and the vendor. This product has been pulled and
will not be served in the future. Eating of pork products
does not cause health issues. Staff has been advised to check
labels prior to serving.
Standards of Review
Motion to Dismiss
has filed a motion to dismiss. ECF 13. A defendant may test
the legal sufficiency of a complaint by way of a motion to
dismiss under Rule 12(b)(6). In re Birmingham, 846
F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016);
McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir.
2010), aff'd sub nom., McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” See Migdal v.
Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26
(4th Cir. 2001); see also Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 513 (2002) (stating that a complaint
need only satisfy the “simplified pleading
standard” of Rule 8(a)). The purpose of the rule is to
provide the defendants with “fair notice” of the
claims and the “grounds” for “entitlement
to relief.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. __, 135 S.Ct. 346, 346
(2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), the
complaint must set forth “enough factual matter (taken
as true) to suggest” a cognizable cause of action,
“even if . . . [the] actual proof of those facts is
improbable and . . . recovery is very remote and
unlikely.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “draw all reasonable
inferences [from those facts] in favor of the
plaintiff.” E.I. du Pont de Nemours & Co. v.
Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
ordinarily do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in
Motion to Dismiss or for Summary Judgment
Correctional Defendants' 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. 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 Cty., 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, Inc., 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.Appx. 220, 222 (4th Cir. 2016) (per curiam). 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.
summary judgment is inappropriate “where the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
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 Transportation, 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 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 E ...