United States District Court, D. Maryland
TRACY SAMUEL LEE, MERVYN BIVENS, BRUCE ANTONIO RICKS, Plaintiffs,
RICKY FOXWELL, Warden of ECI, ROBERT TROXELL, CDM, and DEPARTMENT OF PUBLIC SAFETY, AND CORRECTIONAL SERVICES, Defendants.
L. Hollander United States District Judge
case arises from an isolated error on October 25, 2017, at
Eastern Correctional Institution (“ECI”), a State
prison in Westover, Maryland. The error resulted in the
provision of sausages to inmates at breakfast that contained
2% or less of pork stock.
time of the incident, plaintiffs Tracy Samuel Lee, Mervyn
Bivens, and Bruce Antonio Ricks were inmates housed at ECI.
See ELH-18-3882 (Lee Compl.), ECF 1; Case ELH-19-18
(Bivens Compl.), ECF 1; Case ELH-19-56 (Ricks Compl.), ECF 1.
They brought separate suits pursuant to 42 U.S.C. § 1983
against ECI Warden Ricky Foxwell, Dietary Manager Robert
Troxell, Sr., and the Department of Public Safety and
Correctional Services (“DPSCS”).Claiming that
consumption of pork is against their religion as Sunni
Muslims, each plaintiff seeks compensatory and punitive
damages for defendants' alleged violation of their First
Amendment rights. Additionally, Lee seeks injunctive relief
in the form of transfer to another institution. Case
ELH-18-3882, ECF 1.
Order of January 29, 2019, I consolidated plaintiffs'
cases. Case ELH-18-3882, ECF 6. And, because Mr. Lee's
case was the first of the three to be filed, I designated it
as the lead one for filing purposes. Id.; see
also ELH-19-18, ECF 6; ELH-19-56, ECF 8. Hereafter, all
citations reflect their electronic pagination in case
have moved to dismiss or, in the alternative, for summary
judgment. ELH-18-3882, ECF 20. The motion is supported by a
memorandum of law (ECF 20-1) (collectively, the
“Motion”) and several exhibits. Pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the court informed plaintiffs that the failure to file an
opposition to the defendants' Motion could result in
dismissal of their suit or judgment against them. ECF 21
(Lee); ECF 22 (Bivens); ECF 23 (Ricks). Bivens and Lee filed
responses in opposition to defendants' Motion. ECF 24
(Bivens); ECF 26 (Lee); ECF 27 (Lee). Ricks filed motions for
summary judgment. ECF 25; ECF 28. Defendants did not reply.
review of the record, exhibits, and applicable law, the court
deems a hearing unnecessary. See Local Rule 105.6
(D. Md. 2018). Defendant DPSCS shall be dismissed from suit.
Ricks's motions for summary judgment shall be denied.
Defendants' Motion shall be construed as a motion for
summary judgment as to the remaining defendants and shall be
state that on October 25, 2017, while incarcerated at ECI,
they were served sausages that contained pork. See
ECF 1 (Lee Complaint); ECF 7 (Bivens Complaint); ECF 12
(Ricks Complaint). Plaintiffs allege that defendants knew the
sausages contained pork but decided to serve them
nonetheless. See ECF 1 at 5; ECF 7 at 2; see
also ECF 25 at 2. Plaintiffs claim that they are all
practicing Sunni Muslims and that consuming pork is against
their religion. ECF 1 at 2; ECF 7 at 3; ECF 12 at 2.
result of eating the sausages, Bivens claims that he became
ill and suffered vomiting, nausea, and diarrhea. ECF 7 at 3.
Ricks claims that he began to have stomach pains and
vomiting, prompting him to fill out a sick call slip. ECF 12
was the Correctional Dietary Manager at ECI during the
relevant time. ECF 20-3 (Troxell Declaration), &1. In his
Declaration, Troxell states that, in accordance with 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[.]” Id. ¶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. ¶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. Troxell avers that none of the
plaintiffs ever submitted a written request for a Halal
special diet on the basis of his Muslim faith. Id.
clear that, at the relevant time, the DPSCS did not order
sausages with 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 20-2
(DPSCS Records) at 3. 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
4) indicates an “Item Description” of
“Turkey Sausage Links.” Further, the
“Receiving Report” describes the
“articles” as “Turkey Sausage links.”
Id. at 5.
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 20-3,
¶6. Troxell avers that ECI relies on the commercial food
vendors to comply with this policy. Id. Defendants
also expect ECI staff to comply with Division of Correction
Directives and ECI policies regarding inmate meals.
Id. at ¶7; ECF 20-5 (Foxwell Declaration),
do not dispute, however, that 12 of the 192 cases of
“sausage that contained 2% or less dehydrated pork
stock” were served to ECI inmates on October 25, 2017.
See ECF 20-1 at 6. Troxell states that once the
sausage links were discovered to contain pork stock, they
were not served again and the remaining 180 cases of the
turkey sausage links were returned to the commercial vendor
for credit. ECF 20-3, ¶9. The Bill of Lading business
record reflecting the original order of 192 cases of turkey
sausage includes a handwritten notation that 180 cases were
returned. See ECF 20-2 at 6.
their responses to defendants' Motion, plaintiffs assert
that ECI correctional dietary officers had been aware that
the sausages contained pork prior to serving them.
See ECF 24 at 3-6; ECF 25 at 2; ECF 26. To support
their assertion, all three plaintiffs attached as an exhibit
a Notice of Incident/Matter of Record (“MOR”)
dated October 25, 2017, and completed by ECI correctional
officer Sgt. T. Twilley. It states, ECF 24-1; ECF 26-1; ECF
On 10/25/17 I Sgt. T. Twilley CDO II reported for duty as
East Dietary First Officer at 0750. At approximately 0825
Sgt. Farina CDO II reported for duty and I called for the AM
dietary workers. As a couple of the workers arrived to work
they asked if the sausage for breakfast was pork; I told them
no it should not be, the warehouse/dietary does not get pork
to serve to population, they said they were told by some of
the PM workers it had pork in it, I again told them it could
not be we don't get pork products of any sort to serve.
The sausage for the seg line and part of the food line to
start was cook [sic] that night. I went into the walk in to
check the labels there were no labels on any of the boxes, so
I held firm they were turkey sausage. After the seg line had
been completed I went to the back flipped over the back,
there was a MOR with a sausage label on it. I took a fast
look at the label and it said Turkey Sausage. I did not read
the MOR or the label any more, the sausage were [sic] turkey.
I was still asked by some of the kitchen workers if it was
pork sausage I told them no it was turkey. After the second
line went through, I was asked again. I was in the back with
food service work getting product out. The 3rd line started
and was about ½ or more through when I came out of the
back. I at this time went into the office, to read Sgt.
Riddick CDO's MOR. At this time of reading it I found
that the item in the Turkey Sausage there was pork stock, I
didn't read any more to see if it was natural . . . . I
went to the front line only to find there were only approx
6-10 people left in the line. I spoke to some of the PM shift
later and was told they had pointed it out to Sgt. Morris CDO
II when the sausage came in and he acted as if he did not
care, and stated they will eat it anyway. I don't know if
he said this I was not there. On Friday 10/27/17 when Sgt.
Riddick came back to work I asked her about it. She stated
she wrote a MOR about it, and that she kept getting told
because Sgt. Morris was told when the food service truck came
in and did not care and would do nothing about it, and still
had them pan the sausage up. She said when she asked him
about it, he acted as they [sic] it did not matter and he did
not care. This product should have never been sent into the
compounds from the warehouse. The warehouse foods officer
whom [sic] received the products from vendors should have
caught this and never received this product.
November 10, 2017, Ricks filed Administrative Remedy
Procedure (“ARP”) complaint ECI-2908-17, and on
November 12, 2017, Bivens filed ARP complaint ECI-2927-17.
ECF 20-2 at 7-8, 24-26. Both plaintiffs asserted that by
serving pork at breakfast on the date in question, ECI staff
violated their First Amendment right to practice their
religion. Id. Both plaintiffs also stated that they
became ill after consuming pork. Id. They sought,
inter alia, monetary compensation. Id.
responding to an ECI inmate's ARP complaint, Foxwell
relies on the review and investigation by the staff. ECF
20-5, ¶4. During the investigation of plaintiffs'
ARP complaints by ECI staff, 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
Division of Correction, that the food item in question was
turkey sausage, and that eggs were available if any inmate
wanted a substitute. ECF 20-2 at 35.
November 28, 2017, Foxwell provided the following response to
Bivens's ARP complaint, id. at 7:
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. Per the Chaplains [sic]
office; not to eat pork is a religious preference. Eating of
pork products does not cause health issues. Staff has been
advised to check labels prior to serving.
provided a similar response with regard to Ricks's ARP
complaint on November 30, 2017. Id. at 24.
Bivens and Ricks appealed their respective ARP complaints,
asserting that, pursuant to prison procedures, “no pork
or pork products shall be purchased or served for inmate food
services.” See Id. at 13-18; 29-30. The
Commissioner of Correction dismissed both appeals, stating:
“You were advised in the warden's response that
staff has been advised to check labels prior to
serving.” Id. at 12, 28. The Commissioner also
advised Bivens and Ricks that the relief or remedy they
sought would not be provided. Id.
Bivens filed a grievance with the Inmate Grievance Office
(“IGO”), No. 20180163, which was reviewed and
dismissed on March 12, 2018. ECF 20-4 (Hassan Declaration),
¶3. Ricks also filed a grievance with the IGO, No.
20180162, which was reviewed and dismissed on July 18, 2018.
Id. at ¶3. There is no record that Lee filed
any ARP appeal regarding this incident with the IGO. See
Id. at ¶5.
Standard of Review
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.
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 App'x 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).
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.
judgment is generally 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. App'x 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