Shiheed v. Harding

          MEMORANDUM OPINION

          GEORGE L. RUSSELL, III UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Defendant Jenifer Harding's Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 20).^[2] The Motion is ripe for disposition, and no hearing is necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will grant the Motion.

         I. BACKGROUND^[3]

         Shiheed is an inmate who is currently incarcerated at North Branch Correctional Institution (“NBCI”) in Cumberland, Maryland. (Compl. at 1).^[4] He alleges that on April 22, 2018, after he asked the nurse who was passing out medication a medical question, Harding, a correctional officer, maced and assaulted him for no reason. (Id. at 3). Shiheed states that Harding's use of pepper spray was in violation of Division of Correction Directives regarding the use of force. (Id.). Shiheed further alleges that Harding gave other inmates his mail and instructed them to “F*** [him] up.” (Id.). He pleads that Harding allowed inmates to do sexual favors for her in exchange for beating Shiheed up. (Id.). Shiheed also alleges that Harding filed a false ticket against him and that she is a constant threat to his health and safety. (Id.). Shiheed states that he filed a grievance regarding the facts alleged but that “[the Internal Investigation Division (“IID”)] took [the] grievance case over and it was dismissed for procedural reasons.” (Id. at 2). He further states that he filed an appeal. (Id.).

         On May 8, 2018, Shiheed filed ARP NBCI-0704-18 alleging that Harding used excessive force against him on April 22, 2018. (Def.'s Mot. Dismiss Summ. J. [“Def.'s Mot.”] Ex. 1 at 1, ECF No. 20-2). This ARP was dismissed on May 8, 2018 because it was referred to the IID for investigation.^[5] (Id. at 60). On September 6, 2018, Shiheed filed ARP NBCI-1442-18 complaining that his family advised him that two pieces of mail they sent to him were returned to them. (Id.). Shiheed was directed to resubmit the ARP with additional information. (Id.). There is no indication in the record that he did so. (See id.).

         On June 12, 2018, Shiheed sued Harding. (ECF No. 1).^[6] Shiheed alleges a violation of the Eighth Amendment to the U.S. Constitution against Harding for the use of excessive force. (Compl. at 3). He seeks money damages and injunctive relief. (Id. at 3-4).

         On July 16, 2018, Shiheed filed a Supplemental Complaint (the “First Supplement”). (ECF No. 4). In the Supplement, Shiheed alleges that Harding continued to make threats against him. (1st Suppl. at 1, ECF No. 4). On September 17, 2018, Shiheed filed another Supplemental Complaint (the “Second Supplement”). (ECF No. 13). In the Second Supplement, Shiheed alleges that unspecified mail was tampered with. (2d Suppl. at 1, ECF No. 13). He further alleges that Harding threatened to interfere with his mail and he opines that she is responsible for mail not being delivered to him.^[7] (Id.).

         On November 27, 2018, Harding filed her Motion to Dismiss or, in the Alternative, for Summary Judgment.^[8] (ECF No. 20). Shiheed filed an Opposition on December 10, 2018.^[9] (ECF No. 24). To date, the Court has no record that Harding filed a Reply.

         II. DISCUSSION

         A. Conversion of Harding's Motion

         Harding styles her Motion as a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled in this manner implicates the Court's discretion under Rule 12(d). See Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011), aff'd, 684 F.3d 462 (4th Cir. 2012). This Rule provides that when “matters outside the pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). The Court “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.'” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure § 1366, at 159 (3d ed. 2004, 2012 Supp.)).

         The United States Court of Appeals for the Fourth Circuit has articulated two requirements for proper conversion of a Rule 12(b)(6) motion to a Rule 56 motion: notice and a reasonable opportunity for discovery. See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264, 281 (4th Cir. 2013). 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. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005). 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).

         Ordinarily, summary judgment is inappropriate when “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 (4th Cir. 2011). Yet, “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)). To raise sufficiently the issue that more discovery is needed, the non-movant must typically file an affidavit or declaration under Rule 56(d), explaining the “specified reasons” why “it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule 56(d) affidavit is inadequate if it simply demands “discovery for the sake of discovery.” Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342 (D.Md. 2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20 (D.Md. Feb. 14, 2011)). A Rule 56(d) request for discovery is properly denied when “the additional evidence sought for discovery would not have by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 953 (4th Cir. 1995)).

         The Fourth Circuit has warned that it “‘place[s] great weight on the Rule 56[d] affidavit' and that ‘a reference to 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 a Rule 56[d] affidavit.'” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961). Failing to file a Rule 56(d) affidavit “is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate.” Id. (quoting Evans, 80 F.3d at 961). Nevertheless, the Fourth Circuit has indicated that there are some limited instances in which summary judgment may be premature notwithstanding the non-movants' failure to file a Rule 56(d) affidavit. See id. A court may excuse the failure to file a Rule 56(d) affidavit when “fact-intensive issues, such as intent, are involved” and the nonmovant's objections to deciding summary judgment without discovery “serve[] as the functional equivalent of an affidavit.” Id. at 245 (quoting First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380-81 (D.C.Cir. 1988)).

         Here, Shiheed was on notice that the Court might resolve Harding's Motion under Rule 56 because she styled her Motion in the alternative for summary judgment and presented extra-pleading material for the Court's consideration. See Moret, 381 F.Supp.2d at 464. Shiheed did not file a Rule 56(d) affidavit, nor does he otherwise assert that he needs discovery to properly address Harding's Motion. Accordingly, the Court will construe Harding's Motion as one for summary judgment.

         B. Standard of Review

         In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the nonmovant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Summary judgment is proper when the movant demonstrates, through “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials, ” that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a party must be able to present the materials it cites in “a form that would be admissible in evidence, ” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be made on personal knowledge” and “set out facts that would be admissible in evidence, ” Fed.R.Civ.P. 56(c)(4).

         Once a motion for summary judgment is properly made and supported, the burden shifts to the nonmovant to identify evidence showing there is genuine dispute of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The nonmovant cannot create a genuine dispute of material fact “through mere speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).

         A “material fact” is one that might affect the outcome of a party's case. Anderson, 477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)). Whether a fact is considered to be “material” is determined by the substantive law, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the nonmoving party's favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make a sufficient showing on an essential element of her case where she has the burden of proof, “there can be ‘no genuine [dispute] as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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