United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
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.
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
No. reply was filed.
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.
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
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.
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).
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).
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, ¶
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
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.
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.
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.
Standard of Review
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.
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).
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.
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)).
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).
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).
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.
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.
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).
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).
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).
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
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 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. ...