United States District Court, D. Maryland
L. Hollander, United States District Judge
self-represented plaintiff, Kevin Renard Harvey, II, an
inmate currently incarcerated at the Calvert County Detention
Center in Barstow, Maryland, filed suit on April 8, 2019,
against defendants Maryland Parole & Probation
(“MPP”), Laura Armstead, Acting Warden of the
Patuxent Institution in Jessup, Maryland
(“Patuxent”), and the “State Attorney
General.” ECF 1. Harvey claims that defendants have
held him against his will and without a final parole
revocation hearing, in violation of his due process rights
under the 14th Amendment to the Constitution. Id. at
4. Harvey also complains about his conditions of confinement
at Patuxent. Id. at 4-5. He seeks release from the
custody of the Division of Correction (“DOC”) and
monetary damages. Id. at 3, 5.
have moved to dismiss or, in the alternative, for summary
judgment. ECF 16. Their motion is supported by a memorandum
of law (ECF 16-1) (collectively, the “Motion”)
and several exhibits. Pursuant to Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975), the court informed Harvey that
the failure to file a response in opposition to the
defendants' Motion could result in dismissal of his
Complaint. ECF 17. Harvey responded on August 28, 2019. ECF
matter is now ripe for disposition. Upon review of the
record, exhibits, and applicable law, the court deems a
hearing unnecessary. See Local Rule 105.6 (D. Md.
2018). Defendant MPP shall be dismissed from suit. Defendant
Armstead's Motion shall be construed as a motion for
summary judgment and shall be granted.
September 13, 2018, Harvey was placed on “Hold Without
Bond” in case number D-041-CR-18-001442 (Dist. Ct. for
Calvert Cty.), charging him, inter alia, with
illegal possession of firearms and CDS offenses. ECF 16-5 at
3, 19. That case was forwarded to the Circuit Court for
Calvert County on October 18, 2018, C-04-CR-18-000262 (ECF
16-5 at 5, 21) because Harvey was indicted on October 15,
2018. See ECF 16-5 at 6; see also Harvey v.
Armstead, Civil Action No. ELH-19-1441 (D. Md.), ECF
entered DOC custody in October 2018, on a parole retake
warrant. He claims that he was held against his will,
“without a final revocation hearing in contravention of
COMAR [Code of Maryland Regulations] 12.08.01.22
F(2)(a).” ECF 1 at 4. According to Harvey, while he was
incarcerated at Patuxent, he was locked in a cell for
multiple weeks at a time based on no wrongdoing on his part,
deprived of a shower for at least five days, allowed only 15
minutes per day outside of his cell, and not fed enough food.
Id. at 4-5. Harvey also claims that he witnessed a
stabbing, which contributed to his emotional and mental
stress. Id. In addition, Harvey alleges that
Patuxent does not have a law library and has been on lock
down, denying visits to attorneys and inmates' families.
acknowledge that Harvey arrived at Patuxent on October 25,
2018, as a parole violator pending a revocation hearing. ECF
16-2, Decl. of April Coccagna-Graham, ¶2. According to
defendants, inmates at Patuxent have access to recreation and
showers unless there is a security issue that is occurring
within the institution. Id. ¶¶4, 5. During
security issues, recreation and showers are denied until the
tier is cleared for contraband, shanks, and other weapons.
Id. Once cleared, the staff allows two inmates at a
time to shower. Id. ¶5. Defendants note that
inmate cells are equipped with a sink and toilet, and inmates
are never without the ability to clean themselves if they
cannot get a shower. Id.
to defendants, inmates are fed three meals a day.
Id. ¶11. If there is a security issue occurring
within the institution, inmates are given brown bag meals at
their housing unit door. Id. Similarly, inmates have
access to the library. Id. ¶12. If an inmate
cannot go to the library, such as during an institutional
lock down, the inmate can submit a request for materials from
the library, and the materials are brought to the
inmate's location. Id.
state that inmates are allowed visits and phone calls unless
there is a security issue going on at the institution.
Id. ¶¶6, 10. They note that Harvey had a
legal visit on March 20, 2019. Id. ¶6. If an
inmate has an emergency, that inmate can request to speak to
a custody supervisor regarding a phone call. Id.
¶10. Defendants also state that even if the housing unit
tier is on lock down, inmates are allowed to send and receive
mail. Id. ¶8.
at Patuxent, Harvey was on tier E-3 for housing and on tier
L-3 for disciplinary segregation. Id. ¶13. On
November 13, 2018, tier E-3 was placed on lock down for
approximately 30 days while investigations were ongoing due
to several fights on the tier. Id. It was placed on
lock down again on April 10, 2019, for a period of almost two
weeks, due to multiple fights on the tier as well as shanks
and weapons being found on the tier and on inmates.
Id. Tier E-3 was again placed on lock down beginning
on May 6, 2019, for approximately 30 days, due to multiple
shanks and weapons found on the tier and on inmates.
noted, Harvey filed this suit on April 8, 2019. ECF 1. On
April 30, 2019, Harvey was placed on tier L-3 for
disciplinary segregation after being found to have a 6-inch
shank/weapon on his person. ECF 16-2, ¶13. Harvey
remained on tier L-3 for 30 days and returned to tier E-3 on
May 29, 2019. Id. Harvey returned to tier L-3 on
June 5, 2019, due to fighting on tier E-3, and remained on
tier L-3 until June 16, 2019. Id.
3, 2019, Harvey filed Administrative Remedy Procedure
(“ARP”), No. PATX 0321-19, complaining that he
had been held on a parole violation for over 6 months and had
not had a hearing. ECF 16-2 at 3. That same day, the ARP was
dismissed for procedural reasons, explaining that
“inmates may not seek relief through the ARP process
regarding Maryland Parole Commission procedures and
decisions.” Id. According to records of the
Maryland Department of Public Safety and Correctional
Services (“DPSCS”), Harvey did not file any other
ARPs while he was housed at Patuxent. ECF 16-2, ¶14. In
addition, the DOC states that it has no record of receiving
an ARP appeal from Harvey. ECF 16-3, Decl. of Ebone'
Janifer. Samiyah Hassan, the Administrative Officer at the
Inmate Grievance Office (“IGO”), states that
Harvey did not file a grievance with the IGO. ECF 16-4, Decl.
of Samiyah Hassan, ¶ 2.
27, 2019, Harvey was released from Patuxent to his Calvert
County detainer by Continuation of Mandatory Supervision. ECF
16-2, ¶ 3.
filed in the case of Harvey v. Warden, ELH-19-1441,
reflect that on June 25, 2019, Maryland Parole Commissioner
John Custer recalled the parole retake warrant issued by the
Commission. Id., ECF 9-1. He wrote on the
“Action Form” as follows: “Release to
Calvert Co * No. Bail Status.” Further, he directed the
“Agent to monitor Bail status and notify MPC if it
changes.” Id. Therefore, Harvey was released
from Patuxent on June 27, 2019. Id., ECF 9-2.
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
Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)); see also Dave &
Buster's, Inc. v. White Flint Mall, LLLP, 616 Fed.
App'x 552, 561 (4th Cir. 2015).
raise adequately the issue that discovery is needed, the
nonmovant typically must file an affidavit or declaration
pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why,
“for specified reasons, it cannot present facts
essential to justify its opposition, ” without needed
discovery. Fed.R.Civ.P. 56(d); see Harrods, 302 F.3d
at 244-45 (discussing affidavit requirement of former Rule
56(f)). “[T]o justify a denial of summary judgment on
the grounds that additional discovery is necessary, the facts
identified in a Rule 56 affidavit must be ‘essential to
[the] opposition.'” Scott v. Nuvell Fin.
Servs., LLC, 789 F.Supp.2d 637, 641 (D. Md. 2011)
(alteration in original) (citation omitted). A nonmoving
party's Rule 56(d) request for additional discovery is
properly denied “where the additional evidence sought
for discovery would not have by itself created a genuine
issue of material fact sufficient to defeat summary
judgment.” Strag v. Bd. of Trs., Craven Cmty.
Coll., 55 F.3d 943, 954 (4th Cir. 1995); see McClure
v. Ports, 914 F.3d 866, 874-75 (4th Cir. 2019);
Gordon v. CIGNA Corp., 890 F.3d 463, 479 (4th Cir.
2018); Amirmokri v. Abraham, 437 F.Supp.2d 414, 420
(D. Md. 2006), aff'd, 266 Fed.Appx. 274 (4th
Cir. 2008), cert. denied, 555 U.S. 885 (2008).
nonmoving party believes that further discovery is necessary
before consideration of summary judgment, the party fails to
file a Rule 56(d) affidavit at his peril, because
“‘the failure to file an affidavit . . . is
itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.'”
Harrods, 302 F.3d at 244 (citations omitted). But,
the nonmoving party's failure to file a Rule 56(d)
affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. And, a court
“should hesitate before denying a Rule 56(d) motion
when the nonmovant seeks necessary information possessed only
by the movant.” Pisano v. Strach, 743 F.3d
927, 931 (4th Cir. 2014).
the Fourth Circuit has placed “‘great
weight'” on the Rule 56(d) affidavit, and has said
that a mere “‘reference to Rule 56(f) [now 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 [an] affidavit, '” the
appellate court has “not always insisted” on a
Rule 56(d) affidavit. Id. (internal citations
omitted). According to the Fourth Circuit, failure to file an
affidavit may be excused “if the nonmoving party has
adequately informed the district court that the motion is
premature and that more discovery is necessary” and the
“nonmoving party's objections before the district
court ‘served as the functional equivalent of an
affidavit.'” Id. at 244-45 (internal
citations omitted); see also Putney, 656 Fed.
App'x at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). “This is especially true where, as
here, the non-moving party is proceeding pro se.”
Putney, 656 Fed. App'x at 638.
has not filed an affidavit under Rule 56(d). As to Armstead,
I am satisfied that it is appropriate to address the Motion
as one for summary judgment, as this will facilitate
resolution of the case. As to MPP and the “State
Attorney General, ” I shall construe the Motion as one
to dismiss under Rule 12(b)(6).
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom., McBurney v.
Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule
12(b)(6) motion constitutes an assertion by a defendant that,
even if the facts alleged by a plaintiff are true, the
complaint fails as a matter of law “to state a claim
upon which relief can be granted.” Whether a complaint
states a claim for relief is assessed by reference to the
pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule
provides that a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” The purpose of the rule is to
provide the defendants with “fair notice” of the
claims and the “grounds” for entitlement to
relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must contain facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft
v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Paradise Wire & Cable Defined
Benefit Pension Plan v. Weil, 2019 WL 1105179, at *3
(4th Cir. Mar. 11, 2019); Willner v. Dimon, 849 F.3d
93, 112 (4th Cir. 2017). To be sure, a plaintiff need not
include “detailed factual allegations” in order
to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per
curiam). But, mere “‘naked assertions'
of wrongdoing” are generally insufficient to state a
claim for relief. Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (citation omitted).
judgment is governed by Fed.R.Civ.P. 56(a), which provides in
part: “The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” The Supreme Court has clarified that
this does not mean that any factual dispute will defeat the
motion: “By its very terms, this standard provides that
the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the ...