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Gilbert v. Stott

United States District Court, D. Maryland

May 17, 2019

STEVEN GILBERT, Plaintiff,
v.
R. STOTT, CO II, WARDEN RICHARD J. GRAHAM, Defendants.

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         This civil rights action concerns self-represented plaintiff Steven Gilbert's claim that he was subjected to an excessive use of force when pepper spray was deployed by Correctional Officer R. Stott on July 24, 2017, during an incident at Western Correctional Institution (“WCI”), where Gilbert is incarcerated. ECF 1; ECF 8. He has sued CO II R. Stott and Warden Richard Graham.

         Defendants have moved to dismiss or, in the alternative, for summary judgment. ECF 14. The motion is supported by a memorandum (ECF 14-1) (collectively, the “Motion”) and numerous exhibits. Defendants assert, inter alia, that Gilbert failed to exhaust administrative remedies and that the force used during the incident was not unconstitutional. ECF 14. Defendants filed a supplement to the Motion (ECF 16, ECF 16-1), verifying that video evidence was shown to plaintiff. Gilbert opposes the motion. ECF 17.[1] No. reply was filed.

         A hearing is unnecessary for determination of the matters now pending. See Local Rule 105.6 (D. Md. 2018). For the reasons to follow, defendants' Motion shall be construed as one for summary judgment and shall be granted.

         I. Background

         Gilbert suffers from chronic bronchitis and claims that his medical condition exempts him from being subjected to pepper spray. ECF 1 at 1. Nevertheless, he states that Officer Stott sprayed him with pepper spray on July 24, 2017, and left him in a holding cell for four hours before allowing him to shower. Id. According to Gilbert, when he was provided with a “hot shower, ” it “intensified the affects [sic] of the spray” and “almost killed” him. Id. As relief, he seeks 500 million dollars in damages “for neglect.” Id.

         In his supplemental complaint (ECF 8), Gilbert reiterates that Officer Stott pepper sprayed him in the face. But, he claims he was left in a holding cell for three hours. Id. at 1. According to plaintiff, during the three-hour wait he “actually . . . stopped breathing for 3 minutes and almost died.” Id. In this pleading Gilbert makes no mention of the hot shower exacerbating the effects of the pepper spray, but he increases his demand for damages to 750 million dollars. Id.

         Defendants do not deny that Gilbert was sprayed with pepper spray on July 24, 2017. But, they explain that the pepper spray was deployed by Officer Larry Teets when Gilbert failed to drop a pool cue he had picked up to use as a weapon during a fight with a fellow inmate. ECF 14-3 (Declaration of Larry Teets).

         Officer Teets recounts that he was assigned to housing unit 2, B-tier on the date in question and, as he walked through the lobby area, he looked into rec hall on A-tier and observed Gilbert engaged in a physical fight with inmate Alfred Holloway. Id. at 1, ¶ 3. After radioing for help, Officer Teets entered the area where Gilbert and Holloway were fighting and issued direct orders for them to stop fighting. Id. Holloway complied with the directive and started walking away from Gilbert. Id. But, Gilbert did not comply with the order and, instead, used a broken pool cue to strike Holloway in the back of his head as he walked away. Id., see also ECF 14 at Ex. 3 (filed separately) (video surveillance).

         Several additional direct orders for Gilbert to drop the pool cue and place his hands on the wall were to no avail. Id. Officer Teets then resorted to use of a short burst of pepper spray to Gilbert's face to gain his compliance. Gilbert then dropped the pool cue, turned around, and was placed in restraints by Officer C. Shockey. Id. at 1-2, ¶ 4.

         The Declaration provided by Teets varies slightly from the statements provided following the incident for purposes of the Use of Force report. In that report there is no indication that Gilbert struck Holloway in the back of his head after a direct order was issued for Gilbert to drop the pool cue. Rather, the report simply indicates that Gilbert verbally refused to submit to handcuffing, and Teets then sprayed Gilbert in the face with pepper spray. See ECF 14-4 at 2 (details of use of and effect of use of force by Teets); id. at 5 (description of incident); id. at 13 (notice of inmate rule violation written by Teets); id. at 17 (Memo from Lt. B. Brinegar indicating in part that Holloway suffered an injury to his upper thigh).

         However, the video surveillance recording supports Teets' Declaration, as it depicts Gilbert striking Holloway with the pool cue as Teets entered the recreation room. ECF 14 at Ex. 3 (filed separately). Further, it shows Teets with his arm extended, as if ordering Gilbert. Then, the video reflects a quick, single burst of spray deployed by Teets. See ECF 14, Ex. 3.

         The reports indicate that Gilbert was provided a shower, but do not indicate when the shower was provided. ECF 14 at 6 (Report of Lt. Brinegar indicating “[b]oth inmates were offered and accepted a shower”). Gilbert was also evaluated by medical staff and was described as “agitated” and “uncooperative.” ECF 14-4 at 12. Otherwise, Gilbert was assessed with stable vital signs, and the only injury noted was a small scratch to the right side of his neck, which was “barely visible.” Id. He was released back to his housing unit as “medically stable.” Id.

         Officer Russell Stott submitted a Declaration. ECF 14-10. He avers that he was not involved in the incident with Gilbert on July 24, 2017. Id.

         II. Standard of Review

         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 County, 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, 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, ” but “[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). However, 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).[2]

         A 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.” 5 C 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, 167.

         Summary judgment is generally 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. 2012); see Putney v. Likin, 656 Fed.Appx. 632, 638-39 (4th Cir. 2016) (per curiam); 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 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)).

         To raise adequately the issue that discovery is needed, the nonmovant 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 non-moving 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 McClure v. Ports, 914 F.3d 866, 874-75 (4th Cir. 2019); Gordon v. CIGNA Corp., 890 F.3d 463, 479 (4th Cir. 2018); Amirmokri v. Abraham, 437 F.Supp.2d 414, 420 (D. Md. 2006), aff'd, 266 Fed.Appx. 274 (4th Cir.), cert. denied, 555 U.S. 885 (2008).

         If a 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 cannot obligate a court to issue a summary judgment ruling that is obviously premature. And, a court “should hesitate before denying a Rule 56(d) motion when the nonmovant seeks necessary information possessed only by the movant.” Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014).

         Although the Fourth Circuit has placed “‘great weight'” on the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional discovery in a memorandum of law in opposition to a motion for summary judgment is not an adequate substitute for [an] affidavit, '” the appellate court has “not always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an affidavit may be excused “if the nonmoving party has adequately informed the district court that the motion is premature and that more discovery is necessary” and the “nonmoving party's objections before the district court ‘served as the functional equivalent of an affidavit.'” Harrods, 302 F.3d at 244-45 (internal citations omitted); see also Putney, 656 Fed.Appx. at 638; Nader v. Blair, 549 F.3d 953, 961 (4th Cir. 2008). Moreover, “[t]his is especially true where, as here, the non-moving party is proceeding pro se.” Putney, 656 Fed.Appx. at 638.

         Gilbert has not filed an affidavit under Rule 56(d). Moreover, I am satisfied that it is appropriate to address the defendants' Motion as one for summary judgment, because it will facilitate resolution of this case.

         Summary judgment is governed by Fed.R.Civ.P. 56(a), which provides, in part: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

         A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013).

         “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [his] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004). The court should “view the evidence in the light most favorable to . . . the nonmovant, and draw all inferences in her favor without weighing the evidence or assessing the witnesses' credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002); see Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court's “function” is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Moreover, the trial court may not make credibility determinations on summary judgment. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in the face of conflicting evidence, such as competing affidavits, summary judgment is generally not appropriate, because it is the function of the fact-finder to resolve factual disputes, including matters of witness credibility.

         Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then a dispute of material fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Id. at 252. And, “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         Because plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial.'” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. ...


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