United States District Court, D. Maryland
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants Ronald Shoemaker,
James Flannery, Bryan Cromwell,  James Garofalo, and James
Fiorita's Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment (ECF No. 43). The Motion is
ripe for disposition, and no hearing is necessary.
See Local Rule 106.5 (D.Md. 2018). For the reasons
that follow, the Court will grant Defendants' Motion.
Yahyi Abdul Shiheed is a prisoner confined at the North
Branch Correctional Institution (“NBCI”), in
Cumberland, Maryland. (Compl. at 1, ECF No. 1).In his original
Complaint, Shiheed alleges that on August 18, 2016, while he
was housed as a pretrial detainee at Jessup Correctional
Institution (“JCI”) in Jessup, Maryland, unknown
correctional officers, members of the “SRT team,
” assaulted him. (Id.). Shiheed pleads that he
was in his cell when he observed Defendants assaulting two
other inmates while they were “shaking down” the
segregation tiers. (Id.). Shiheed told Defendants to
stop. (Id.). Defendants came to Shiheed's cell
and advised him that he was next. (Id.). Defendants
then tried to close the door slot on his arm. (Id.).
Defendants had Shiheed's cell door opened and they
“beat [him] up by hitting, kicking[, ] and
choking” him in his cell. (Id.). Defendants
handcuffed Shiheed, took him out of the cell and slammed him
onto the tier “bust[ing]” his head and eye.
September 26, 2016, Shiheed sued “the Warden and
Assistant Warden because they're in charge of this prison
and what happens here at JCI with inmates and they know who
entered the prison on 8/18/16 and they refuse to give me the
officers names in this brutal assault.” (Id.
at 5). Defendants Warden Wayne Webb and Assistant Warden
Rosette Swan filed a Motion to Dismiss or, in the Alterative,
for Summary Judgment, (ECF No. 21), which the Court granted.
(ECF Nos. 28, 29). Attached to their Motion were documents
which identified the correctional officers involved in the
August 8, 2016 incident. (Webb & Swan's Mot. Dismiss
Summ. J. [“Webb & Swan's Mot.”] Ex. 2 at
7, ECF No. 21-3).As a result, the Court granted
Shiheed's Motions to Amend the Complaint and Add
Defendants and granted Webb and Swan's Motion. (ECF Nos.
January 25, 2019, Defendants filed their Motion to Dismiss
or, in the Alternative, Motion for Summary Judgment. (ECF No.
43). Shiheed filed an Opposition on February 13, 2019. (ECF
No. 45). To date, the Court has no record that Defendants
filed a Reply.
Conversion of Defendants' Motion
style their 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
Defendants' Motion under Rule 56 because they styled
their 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
Defendants' Motion. Accordingly, the Court will construe
Defendants' 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.” Othent ...