United States District Court, D. Maryland
L. Hollander United States District Judge
case arises from an isolated error that occurred on October
25, 2017, at Eastern Correctional Institution
(“ECI”), a prison in Westover, Maryland. The
error resulted in the provision of sausages to inmates at
breakfast that contained 2% or less of pork stock.
time of the incident, plaintiff Derrick Nutter was an inmate
housed at ECI. See ECF 1. He brings this civil
action pursuant to 42 U.S.C. § 1983 against Ricky
Foxwell, the Warden at ECI at that time, and Dietary Manager
Robert Troxell. Id. Claiming that consumption of
pork is against his religion, plaintiff seeks immediate
release, compensatory damages in the amount of $300, 000
against each defendant, and punitive damages of $300, 000
against each defendant, for their alleged violation of his
First Amendment rights. Id.
have moved to dismiss or, in the alternative, for summary
judgment. ECF 9. Their motion is supported by a memorandum of
law (ECF 9-1) (collectively, the “Motion”).
Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), the court informed plaintiff that the failure to
file a response in opposition to the defendants' Motion
could result in dismissal of his Complaint. ECF 10. Plaintiff
filed a response in opposition to the defendants' Motion
on February 7, 2019. ECF 11. Defendants did not reply.
review of the record, exhibits, and applicable law, the court
deems a hearing unnecessary. See Local Rule 105.6
(D. Md. 2018). Defendants' Motion shall be construed as a
motion for summary judgment and shall be granted.
October 25, 2017, while plaintiff was incarcerated at ECI, he
ate breakfast consisting of sausage links. ECF 1 at
Thereafter, plaintiff was informed by another inmate that the
sausages contained pork. Id. Plaintiff claims that
his religion imposes a belief that “pigs, swine and
therefore pork [is] unclean” and “shall not be
touched or consumed.” Id. at 5. He asserts
that, by serving pork, defendants violated his right to
practice his religion. Id.
was the Correctional Dietary Manager at ECI during the
relevant time. ECF 9-3 (Troxell Declaration), &1. In his
Declaration, Troxell avers that plaintiff never submitted any
written request for a non-pork diet on the basis of his
faith. Id. at &5. To Troxell's knowledge,
during the 28 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.
to ECI's case management system, plaintiff indicated on
May 10, 2016, that his religious affiliation was “Islam
Moorish, Temple of America.” ECF 9-2 at 8. During
plaintiff's incarceration at ECI, he signed and dated
Religious Preference Registration forms, each of which
included a staff witness signature, informing ECI staff of
the faith group that he intended to practice. Id. at
9-10. In a form dated October 2, 2016, plaintiff selected
“Other” and wrote in the letters,
“YGM.” Id. at 9. Therefore, on October
4, 2016, his religious affiliation was changed to
“Other” in the prison's case management
system. Id. at 8. In a form dated July 21, 2016,
plaintiff again wrote “YGM.” Id. at 10.
Most recently, the case management system reflects that
plaintiff selected Roman Catholicism on September 27, 2018.
Id. at 8.
maintains that, in accordance with Maryland Department of
Public Safety and Correctional Services (“DPSCS”)
policy, “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[.]” ECF 9-3 at ¶3. Moreover,
“[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 9-2 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 9-3 at
¶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. Defendants also
expect ECI staff to comply with the Directives and ECI
policies regarding inmate meals. Id. at ¶7; ECF
9-5 at ¶3. 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 9-1 at 3-4.
states that because he was “unaware of the sausages . .
. being pork on 10-25-17, ” he was “unable to
file a grievance within 30 days from the actual
incident.” ECF 1 at 3. Indeed, there is no record that
plaintiff filed any Administrative Remedy Procedure
(“ARP”) appeal with the Inmate Grievance Office
(“IGO”) regarding this incident. See ECF
9-4 at ¶ 3.
staff investigated the incident after a formal complaint was
lodged by another inmate. See ECF 9-2 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.
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 Cty., 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, 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)
(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 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
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed.
App'x 552, 561 (4th Cir. 2015).
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 nonmoving
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. 2008), 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.'” Id. at 244-45 (internal
citations omitted); see also Putney, 656 Fed.
App'x. at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). “This 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 ...