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Nutter v. Foxwell

United States District Court, D. Maryland

May 31, 2019

DERRICK NUTTER, Plaintiff,
v.
RICKY FOXWELL, ROBERT TROXELL, Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander United States District Judge

         This 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.

         At the 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.

         Defendants 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.

         Upon 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.

         I. Factual Background

         On October 25, 2017, while plaintiff was incarcerated at ECI, he ate breakfast consisting of sausage links. ECF 1 at 3.[1] 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.

         Troxell 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.

         According 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.

         Troxell 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 meals.” Id.

         It is 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.

         Of 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.[2]

         Plaintiff 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.

         ECI 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.

         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 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).

         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.” 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.

         Ordinarily, 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).

         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 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).

         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.'” 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.

         Plaintiff 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 ...


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