United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendant Jenifer Harding's
Motion to Dismiss or, in the Alternative, for Summary
Judgment (ECF No. 20). 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
is an inmate who is currently incarcerated at North Branch
Correctional Institution (“NBCI”) in Cumberland,
Maryland. (Compl. at 1). 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.).
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. (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.).
12, 2018, Shiheed sued Harding. (ECF No. 1). 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).
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. (Id.).
November 27, 2018, Harding filed her Motion to Dismiss or, in
the Alternative, for Summary Judgment. (ECF No. 20).
Shiheed filed an Opposition on December 10,
2018. (ECF No. 24). To date, the Court has no
record that Harding filed a Reply.
Conversion of Harding's Motion
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.)).
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).
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)).
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)).
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.
Standard of Review
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).
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)).
“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