United States District Court, D. Maryland
CATHERINE C. BLAKE, UNITED STATES DISTRICT JUDGE
Anthony Devonte Barbour filed the above-captioned civil
rights action alleging that he was assaulted by Lt. Howell
while a pretrial detainee. ECF No. 1. Defendant filed a
Motion to Dismiss or, in the Alternative, for Summary
Judgment. ECF No. 14. Despite being notified of his right to
file an opposition (ECF No. 15), plaintiff has not responded
to the dispositive motion. The matter is now ripe for review.
The court finds a hearing in these matters unnecessary.
See Local Rule 105.6 (D. Md. 2018). For the reasons
that follow, defendant's dispositive Motion, construed as
a Motion for Summary Judgment, will be GRANTED. Plaintiffs
Motions for Jury Trial (ECF No. 9), to Make the Video
Evidence Available (ECF No. 10), and to Appoint
Counsel(ECF No. 12) will be denied.
alleges that on February 22, 2019; while housed as a pretrial
detainee at the Harford County Detention Center, he was being
escorted to his cell when he was advised that his cell had
been searched and his lunch taken. ECF No. 1, p. 2; ECF No.
1-2, p. 1 (incident report). Plaintiff became upset because
his housing assignment prohibited him from purchasing food
through the commissary and he advised his escort that he
would not lock into his cell until he was provided another
lunch. ECF No. 1, pp. 2-3. Officers directed plaintiff to
lock into his cell, but plaintiff attempted to walk to the
middle of the dayroom "when [he] was grabbed and
forcefully pushed by Lt. Howell. . . ." Id.
Plaintiff was picked up and flipped resulting in his breaking
one rib and fracturing another. Id. Subsequently,
plaintiff was placed in isolation and on lock-up and denied
medical attention. Id.
Complaint, plaintiff indicates that he filed a prison
grievance regarding the events complained of and, at the time
he filed this Complaint, that grievance remained under
investigation. ECF No. 1, p. 2.
filed its Motion as a Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment. Typically, when
deciding a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court considers only the complaint
and any attached documents "integral to the
complaint." Sec'y of State for Defence v.
Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.
2007). To the extent that grounds for dismissal are based
solely on the contents of the complaint, the court may
dismiss under Rule 12(b)(6) if the complaint does not allege
enough facts to state a plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim
is plausible when the facts pleaded allow "the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. Although
courts should construe pleadings of self-represented
litigants liberally, Erickson v. Pardus, 551 U.S.
89, 94 (2007), legal conclusions or conclusory statements do
not suffice, Iqbal, 556 U.S. at 678. The court must
examine the complaint as a whole, consider the factual
allegations in the complaint as true, and construe the
factual allegations in the light most favorable to the
plaintiff. Albright v. Oliver, 510 U.S. 266, 268
(1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
12(d) requires courts to treat a Rule 12(b)(6) motion as a
motion for summary judgment when matters outside the
pleadings are considered and not excluded. Fed.R.Civ.P.
12(d). Before converting a motion to dismiss to one for
summary judgment, courts must give the nonmoving party
"a reasonable opportunity to present all the material
that is pertinent to the motion." Id.
"Reasonable opportunity" has two requirements: (1)
the nonmoving party must have some indication that the court
is treating the Rule 12(b)(6) motion as a motion for summary
judgment, and (2) the nonmoving party "must be afforded
a reasonable opportunity for discovery" to obtain
information essential to oppose the motion. Gay v.
Wall, 761 F.2d 175, 177 (4th Cir. 1985) (citation
omitted). Here, the notice requirement has been satisfied by
the title of the motion. To show that a reasonable
opportunity for discovery has not been afforded, the
nonmoving party must file an affidavit or declaration under
Rule 56(d) explaining why, "for specified reasons, it
cannot present facts essential to justify its
opposition," Fed.R.Civ.P. 56(d), or otherwise put the
district court on notice of the reasons why summary judgment
is premature, see Harrods Ltd. v. Sixty Internet Domain
Names; 302 F.3d 214, 244-45 (4th Cir. 2002). Here,
plaintiff has not filed a Rule 56(d) affidavit. Under these
circumstances, the court will construe defendant's motion
as a motion for summary judgment.
Federal Rule of Civil Procedure 56, the court grants summary
judgment if the moving party demonstrates that there is no
genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In assessing the Motion, the court
views the facts in the light most favorable to the nonmoving
party, with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The court may rely only on facts supported in the
record, not simply assertions in the pleadings. Bouchat
v. Bait. Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003). The nonmoving party has the burden to show a
genuine dispute on a material fact. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986). A fact is "material" if it "might
affect the outcome of the suit under the governing law."
Anderson, 477 US. at 248. A dispute of material fact
is only "genuine" if sufficient evidence favoring
the nonmoving party exists for the trier of fact to return a
verdict for that party. Id. at 248-49.
raises the affirmative defense that plaintiff has failed to
exhaust his administrative remedies. Under the Prison
Litigation Reform Act of 1995 ("PLRA"), Pub. L. No.
104-134 § 803, 110 Stat. 1321 (1996) (codified as
amended at 42 U.S.C. § 1997e(a)):
No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.
42 U.S.C. § 1997e(a) (2012). For purposes of the PLRA,
"the term 'prisoner' means any person
incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of
parole, probation, pretrial release, or diversionary
program." 42 U.S.C. § 1997e(h). Inmates must
exhaust administrative remedies before they bring any
"suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong." Porter v.
Nussle, 534 U.S. 516, 532 (2002).
is mandatory and generally may not be excused unless the
administrative procedure is not available. See Ross v.
Blake,136 S.Ct. 1850, 1858 (2016) (holding that an
inmate "must exhaust available remedies, but need not
exhaust unavailable ones"). "[A]n administrative
remedy is not considered to have been available if a
prisoner, through no fault of his own, was prevented from
availing himself of it." Moore v. Bennette, 517
F.3d 717, 725 (4th Cir. 2008). In Ross, the United
States Supreme Court identified three circumstances when an
administrative remedy is unavailable. An administrative
procedure is not available when officers are consistently
unwilling or unable to provide relief to aggrieved ...