United States District Court, D. Maryland
L. Russell, III United States District Judge
MATTER is before the Court on Defendants North Branch
Correctional Institution (“NBCI”), Warden Frank
B. Bishop, Jr., Assistant Warden Jeff Nines, Chief of
Security William Bohrer, Chaplain Kevin Lamp, Captain Ronald
Ketterman, Lieutenant Thomas Sawyers, Sergeant Robert Werner,
Lieutenant Gregory Forney, Officer Larry Gilpin, Lieutenant
Patrick Speir, Lieutenant Charles Bielanski, Lieutenant
Jeffrey Haggard, Lieutenant Patricia Wiley, Officer Joshua
Tart, and Correctional Dietary Manager Parrish
Kammauf’s (collectively, “NBCI Defendants”)
Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment (ECF No. 36) and Plaintiff Eric Von Poole’s
Motion for Temporary Restraining Order, Reconsideration for
Appointment of Counsel and Order Granting the
Plaintiff’s Request and Additional Exhibit(s) (ECF No.
38). This 42 U.S.C. § 1983 (2018)
action arises from the disciplinary action taken against
Poole at NBCI in 2016 and 2017. The Motions are ripe, and no
hearing is necessary. See Local Rule 105.6 (D.Md.
2018). For the reasons stated herein, the Court will grant
Defendants’ Motion in part and deny it in part and
grant Poole’s Motion in part and deny in part.
is an inmate at North Branch Correctional Institution
(“NBCI”) in Cumberland, Maryland who has filed
several Administrative Remedy Procedure [“ARP”]
complaints and helped at least one other inmate pursue legal
redress during his term of confinement. (Compl. at 1,
4–7, ECF No. 1; Am. & Suppl. Compl.
[“Suppl.”] at 9, ECF No. 4). On September 1,
2016, Poole sent a letter to an attorney on behalf of inmate
Andrew Dicks, a plaintiff in a case that “was about to
go to settlement” in this Court. (Compl. at
5). The letter, dated August 29, 2016,
includes ARPs Poole and four other inmates filed against the
NBCI dietary department regarding violations of requirements
for meals during Ramadan in 2013, notes the same violations
persisted during Ramadan in 2016, and states that the same
policies at issue in Dicks’ case were still being
enforced. (Suppl. Exs. 1–25 (“Exhibit A”)
at 2–3, 16–40, ECF No. 4-1). On July 27, 2016,
Poole had filed ARP NBCI 1682-16, alleging that the NCBI
Dietary Manager, Kammauf (“Manager Kammauf”), and
the shift Dietary Supervisor failed to provide him with the
proper diet during the Islamic month of fasting and prayer,
Ramadan, which ended July 5, 2016 and did not tell him to
pick a meal for the Eid-ul-Fitr feast on July 6, 2016.
(Defs.’ Mot. to Dismiss Altern. Mot. Summ. J.
[“Defs.’ Mot.”] Ex. 26 [“ARP 1682-16
Documents”] at 32, ECF No. 36-30).
response to Poole’s September 6, 2016 appeal of NBCI
1682-16, which complained about the food provided to the 2016
Ramadan adherents, the investigation summary written by Scott
Steininger for the Commissioner’s review
indicates that: “Inmate Poole voluntarily elected to
participate in the Ramadan observance. Inmate Poole’s
weight on 5/24/16 was 240 lb. and his weight on 8/31/16 was
251 lb. The meal selected for the inmate religious group was
moved to the night of the Eid-ul-Fitr as stipulated in the
policy.” (ARP 1682-16 Documents at 15). Based on his
investigation, Steininger recommended dismissal of the ARP
appeal, reasoning that the regular diet meal and the Ramadan
enhanced dinner meal standards were being met. (Id.
at 16). Further, Steininger noted that Poole had gained
weight during Ramadan and his complaint that he was not
permitted to individually select a meal from the menu for the
Eid-ul-Fitr feast was meritless as that meal was selected for
the entire group. (Id.). On October 18, 2016, the
Commissioner adopted the suggested rationale for dismissal of
the ARP appeal. (Id. at 1). No. appeal of the
Commissioner’s dismissal was received by the Inmate
Grievance Office (“IGO”). (Hassan Decl. ¶ 3,
ECF No. 36-33).
October 17, 2016, Lt. Speir removed Poole from his single
cell. (Compl. at 5). Defendants aver that they transferred
Poole from Housing Unit (“HU”) 3 to HU
2 because of a heightened concern
regarding inmate-on-inmate assaults, tensions among rival
prison gangs or Security Threat Groups (“STGs”),
and a shortage of bed space. (Sawyers Decl. ¶ 5, ECF No.
36-5; Forney Decl. ¶ 6, ECF No. 36-9). Poole is not a
validated member of an STG, but at the time he was moved,
“it was believed that he may have been involved in . .
. inciting other inmates to act out inappropriately.”
(Sawyers Decl. ¶ 5; Forney Decl. ¶ 6; see
also Defs.’ Mot. Ex. 27 [“ARP NBCI 2453-16
Documents”] at 4, ECF No. 36-31).
HU 2 is
a special management unit that provides “a closer level
of inmate monitoring for security.” (Sawyers Decl.
¶ 6). When Poole arrived at ¶ 2, he refused to
accept the top bunk he was assigned because of his medical
issues, which included a hip replacement. (Id.
¶ 8; Compl. at 5). Poole received a Notice of Infraction
for refusing to obey an order and refusing a housing
assignment. (Sawyers Decl. ¶ 8). Poole was then assigned
to Administrative Segregation Pending Adjustment
(“ASPA”) in HU 1. (Id.).
to Lt. Patrick Speir, the unit manager of HU 3 when he
assigned Poole to a single cell, Poole’s personal
property was inventoried shortly after he arrived at ¶ 1
and he was permitted authorized items of property for
segregation inmates. (Speir Decl. ¶ 6, ECF No. 36-10;
Suppl. at 4). Poole’s adjustment hearing for
the October 17, 2016 infraction was scheduled to take place
on November 1, 2016, but the hearing officer postponed it
because of witness availability issues and rescheduled it for
December 1, 2016. (Speir Decl. ¶ 10).
November 1, 2016, Poole filed ARP NBCI 2453-16, claiming NBCI
staff retaliated against him for being a “jailhouse
lawyer, ” (ARP NBCI-2453-16 Response at 4, ECF No.
36-31), by moving him to a “MAX II/STG” building
with modified movement, assigning him to a top bunk despite
his medical issues, and denying him regular use of the law
library, access to the “Big Library, ” and the
daily inside recreation general population inmates receive.
(Compl. at 5). Poole alleges Officer Tart, who worked on HU 1
B-tier, destroyed certain of Poole’s ARPs and, on
November 15, 2016, attempted to pry open institutional
request slips Poole submitted and which were later processed
in December 2016 by Sgt. Forney. (Suppl. at 6, ECF No. 4).
Ofc. Tart denies that. (Tart Decl. ¶ 4, ECF No. 36-28).
December 1, 2016 hearing regarding Poole’s refusal to
accept a cell assignment, the charges were dismissed, and
Poole was transferred from HU 1 to HU 2. (Speir Decl.
¶¶ 10–11; Sawyers Decl. ¶ 9; Compl. at
5). On December, 8, 2016, Poole
“was seen by chronic care” and assigned to a
medical cell. (Compl. at 5). The December 8, 2016 medical
order indicates that Poole should be assigned to a
“medical cell” but does not specify “single
cell” although there is a space for doing so on the
form. (Defs.’ Mot. Ex. 20 [“Medical Order”]
at 3, ECF No. 36-24). On December 20, 2016, Poole was moved
to a Medical Cell in HU 2 per the earlier medical order.
(Sawyers Decl. ¶ 10). On January 12, 2017, a cellmate
joined Poole in his medical cell. (Compl. at 6).
January 16, 2017, Nurse Krista Bilak saw Poole and told him
that a recent orthopedic consult indicated a problem with
Poole’s hip replacement that required follow-up.
(Id.). Sgt. Forney was called into the
medical room where Bilak was examining Poole, and Bilak
explained that Poole’s hip replacement and his ongoing
rehabilitative therapy required the medical cell’s full
space and features. (Id.). Sgt. Forney became
“visibly angry” and, alluding to Poole’s
litigiousness, told him that he would have a roommate in his
medical cell no matter how much he complained.
(Id.). While the medical cell is equipped with
handrails and other accessibility features, according to Lt.
Sawyers, the cell is still designated as a double-occupancy
cell. (Id.). Segregation cells are designated as
double occupancy cells unless there is a specific reason
requiring an inmate to be housed in a single cell. (DOC
Manual 100.0002, Special Confinement Housing § F(2), ECF
the move to the medical cell, Sgt. Forney told Poole he would
not be allowed to attend religious services by order of the
NBCI Administration, which had created a schedule permitting
Sunni Muslims housed in HU 2 to attend services on specified
dates in order to ensure there were no issues with rival
gangs. (Compl. at 6, 8). On December 20, 2016, Poole was not
allowed to attend Sunni Worship services. (Id. at
5). According to Chaplain Lamp, when an inmate misses three
consecutive religious services, his name is removed from the
pass list. (Lamp. Decl. ¶ 8, ECF No. 36-15). The inmate
must put in a request to be put back on the list.
(Id.). According to Lamp, inmates in HU 2 who are
not assigned to segregation status are “only permitted
to attend in-house congregative Friday [Jumu’ah]
Services with the Sunni Worship Group.” (Id.
at ¶ 9). Without explaining why Poole was unable to
attend Jumu’ah, Lamp concludes that he has “never
interfered . . . with . . . Poole’s ability to attend
[HU 2] Friday [Jumu’ah] Services with the Sunni Worship
Group.” (Id. at ¶ 10). Poole attempted to
submit an ARP regarding the alleged denial of attendance at
the religious services despite submitting request slips in
advance, but he alleges it was pushed back under his door
without being processed. (Compl. at 5). Sgt. Forney warned
Poole “to stop filing remedies.” (Id.).
Forney generally denies refusing to properly process ARPs
submitted by Poole but does not address the allegation that
he told Poole to stop filing remedies. (Forney Decl. ¶
January 19, 2017, Poole mailed an “Emergency
Remedy” to the Commissioner’s Office because Lt.
Sawyers and Sgt. Forney refused to remove his cellmate from
the medical cell, to allow him to attend religious services,
or to process Poole’s ARPs. (Compl. at 6). On January
25, 2017, Poole received notification from the
Commissioner’s office that his Emergency Remedy had
been referred to the Warden for a response. While waiting for
a formal response, Poole spoke directly with Warden Bishop,
detailing his concerns about his housing assignments and his
exclusion from religious services and recreation, and
reminding the Warden that he is not a member of a gang.
(Compl. at 7).
March 30, 2017, Lt. Sawyers told Poole that he would
“remain in HU 2 for the foreseeable future due to Intel
reasons.” (Compl. at 7). Lt. Sawyers explained on a
routing slip for Warden Bishop that Poole had been moved to
HU 2 for “possibly inciting other inmates last October
in HU 3, during a very tense time with gangs.”
(Id.). Lt. Sawyers recommended that Poole remain in
HU 2 due to ongoing gang issues. (Id.). Also on
March 30, 2017, Poole filed an ARP (NBCI-0778-17), in which
he complained that employees of the prison medical
contractor, Wexford Health Sources, Inc., had neither
followed the orthopedist’s recommendations nor conveyed
those recommendations to the Warden so that Poole could live
in a suitable cell. (Defs.’ Mot. Ex. 28 [“ARP
NBCI-0778-17”], ECF No. 36-32). That ARP was dismissed
on May 15, 2017. (Id. at 1, 4–17).
9, 2017, Poole learned from his mother that his father was
gravely ill. (Id.). She told him that she had called
the Warden’s office the day before, but Poole did not
learn of his father’s condition until he spoke with his
mother. (Id.). Two days later, an NBCI social worker
informed Poole that his father had passed away on May 10,
2017. (Compl. at 8). Poole “was told” that he
would be called to the Chaplain’s office on May 12,
2017 in order to use the phone in private, but that did not
happen. (Id.). On May 12, 2017, Poole told Sgt.
Forney that his father passed away and that he wanted to see
Chaplain Lamp so he could call his family outside the
presence of other inmates. (Compl. at 8). A correctional
officer later informed Poole that Sgt. Forney had denied his
request to speak with Chaplain Lamp because Poole had been on
the phone four times since he learned his father was ill.
(Id.). Lamp states that he has no recollection of
Poole asking to be allowed to use the phone privately
following the news of his father’s death. (Lamp Decl.
27, 2017, Ramadan began, and NBCI staff marked Poole’s
cell door to signify he was participating. (Compl. at 8).
Poole alleges that Lt. Haggard and Lt. Patricia Wiley, food
service supervisors at NBCI, failed to include with his
dinner meal the attached bag meal to make up for the calories
he missed earlier in the day, violating NBCI guidelines and
the Court’s decision in Dicks.
(Id.). According to the Dietary Manager for NBCI,
Ramadan participants receive “a breakfast meal before
sunrise and an Enhanced Dinner Meal after sunset which
provides various larger portion sizes to ensure adequate
caloric intake in accordance with the established
requirements.” (Kammauf Decl. ¶ 5, ECF No. 36-18).
Kammauf states that during the 2016 and 2017 Ramadan
observances, the dinner meals provided to participants met
the standards established in the “Observances With Food
Requirements/Meal Adjustments” for those years.
(Id. ¶¶ 6–7). Poole also
alleges that Steininger, the Correctional Dietary Manager for
the Western Region of DPSCS, is responsible for ensuring NBCI
is complying with requirements for meals during Ramadan.
(Suppl. at 6). Poole alleges NBCI did not comply with those
directives for Ramadan 2017. (Id.; see also
Defs.’ Mot. Ex. 26 [“Headquarters Investigative
Summary”] at 14–16, ECF No. 36-30).
9, 2017, Poole sued NBCI and several associated officials and
employees. (ECF No. 1). On June 15, 2017, Poole filed an
Amended and Supplemental Complaint (the
“Supplement”), naming several more NBCI employees
as Defendants and clarifing his claims against them, alleging
under 42 U.S.C. § 1983: cruel and unusual punishment in
violation of the Eighth Amendment (Count I); denial of due
process in violation of the Fourteenth Amendment (Count II);
and denial of his right to practice his religion and to
petition the courts in violation of the First Amendment to
the U.S. Constitution, as well as retaliation for exercising
his First Amendment rights (Count III). (Suppl. at
1–8). Poole also makes claims under the Religious Land
Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.
§ 2000cc-1(a) (2018). (Id. at 3, 5). He seeks
money damages, his attorney’s fees and costs, and
declaratory relief. (Id. at 8).
February 5, 2019, NBCI Defendants filed their Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment.
(ECF No. 36). On June 24, 2019, Poole filed an Opposition.
(ECF No. 49). To date, the Court has no record NBCI
Defendants filed a Reply.
February 11, 2019, Poole filed a Motion for Temporary
Restraining Order, Reconsideration for Appoint of Counsel and
Order Granting the Plaintiff’s Request and Additional
Exhibit(s). (ECF No. 38). On February 21, 2019, Wexford
Health Sources, Inc., Mahboob Ashraf, M.D., and William
Beeman, R.N.’s (collectively, with Ryan Browning,
L.P.N., “Medical Defendants”) filed an Opposition
and Motion to Strike. (ECF No. 39). To date, the Court has no
record NBCI Defendants filed an Opposition.
Poole’s Motion  and
Medical Defendants’ Motion to Strike
Supplement, Poole brought claims against Medical Defendants,
alleging they violated Poole’s Eighth Amendment rights
by failing to follow “orthopedic consult
recommendations so they could pass on the recommendations so
DPSCS could find a[n] accommodating facility” where Mr.
Poole could properly exercise. (Suppl. at 8). On March 26,
2019, the Court granted summary judgment in favor of Medical
Defendants and denied Poole’s Motion for Injunctive
Relief. (Mar. 26, 2019 Mem. Op. & Order, ECF Nos. 43,
Motion for Order Granting the Plaintiff’s Request and
Additional Exhibit(s) and Medical Defendants’ Motion to
Motion, Poole seeks to add exhibits to his pleadings,
including a Consent Order of Reprimand issued by the Maryland
Board of Nursing against Nurse Beeman. In their Motion,
Medical Defendants move to strike the portion of
Poole’s exhibits regarding Nurse Beeman’s
reprimand as irrelevant to the issues raised in Poole’s
Complaint and prejudicial to Nurse Beeman. Upon
consideration, the Court agrees that Poole’s inclusion
of the Consent Order of Reprimand is not relevant to
Poole’s pleaded claims, appears to be offered for an
improper purpose, and concerns a matter which is moot in
light of the Court’s March 26, 2019 Order granting
summary judgment in favor of Medical Defendants. As a result,
the Court will deny this part of Poole’s Motion and
grant Medical Defendants’ Motion to Strike that portion
of the Exhibits (Pl.’s Mot. Ex. C [“Medical
Exhibits”] at 25– 31, ECF No. 38-3).
Poole’s Motion for TRO
also seeks an Order requiring his transfer from NBCI to
facilitate his participation in rehabilitative therapy. He
maintains that a temporary assignment to one of the Jessup
prisons would permit him to perform the exercises required to
rehabilitate his leg and claims that the retaliatory actions
of denying him a medical cell, which he equates to a single
cell, could be addressed through his transfer. On March 26,
2019, the Court denied Poole’s request for injunctive
relief for purposes of the asserted need for rehabilitative
therapy. (Mar. 26, 2019 Mem. Op. at 19–20). For the
same reasons the Court denied Poole’s request for
injunctive relief in its March 26, 2019 Memorandum Opinion,
the Court will deny Poole’s pending TRO request.
Conversion of Defendants’ Motion
Defendants style their Motion as a motion to dismiss under
Rule 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) (citation omitted). 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)).
Poole was on notice that the Court might resolve
Defendants’ Motion under Rule 56 because Defendants
styled their Motion in the alternative for summary judgment
and presented extensive extra-pleading material for the
Court’s consideration. See Moret, 381
F.Supp.2d at 464. Poole cites Rule 56(d) in his Opposition,
(see Pl.’s Mem. L. Supp. Pl.’s
Opp’n Defs.’ Mot. Dismiss Summ J.
[“Pl.’s Opp’n”] at 6), but does not
include a Rule 56(d) affidavit. The only discovery he
specifically requests is a letter he wrote to the U.S.
Department of Justice about his treatment at NBCI, which will
“show the trier of fact that this is a gross pattern of
rogue behavior by public officials.” (Pl.’s
Opp’n at 21). But Poole does not explain why that
letter would “by itself create a genuine issue of
material fact sufficient to defeat summary judgment”
regarding his, and the Court does not see how it would, given
the voluminous documentation the parties have submitted as
exhibits. See Ingle, 439 F.3d at 195 (4th Cir. 2006)
(quoting Strag, 55 F.3d at 953). Both requirements
for conversion have therefore been satisfied. See Greater
Balt. Ctr., 721 F.3d at 281. Accordingly, the Court will
treat 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.” 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
Exhaustion of ...