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Harvey v. Maryland Parole & Probation

United States District Court, D. Maryland

December 11, 2019

KEVIN RENARD HARVEY, II, Plaintiff,
v.
MARYLAND PAROLE & PROBATION, LAURA Y. ARMSTEAD, Acting Warden of Patuxent Institution, STATE ATTORNEY GENERAL, Defendants.

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge

         The 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.

         Defendants 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.[1] 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 18.

         The 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.

         I. Factual Background

         On 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 9.[2]

         Harvey 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.[3] 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. Id.

         Defendants 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.

         According 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.

         Defendants 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.

         While 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. Id.

         As 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.

         On May 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.

         On June 27, 2019, Harvey was released from Patuxent to his Calvert County detainer by Continuation of Mandatory Supervision. ECF 16-2, ¶ 3.

         Records 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.[4] 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.

         II. Standard of Review

         Defendants' 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. Md. 2011).

         Ordinarily, 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).

         A 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.

         Summary 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).

         To 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).

         If a 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).

         Although 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.

         Harvey 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).

         A 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, 555-56 (2007).

         To 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).

         Summary 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 ...


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