Simmons v. Zies et al

Filing 16

MEMORANDUM. Signed by Judge James K. Bredar on 4/26/2016. (c/m 4/26/16)(krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY SIMMONS, #319-614

:

Plaintiff

:

v.

:

CHARLOTTE ZIES,1 Case Manager
LT. BRADLEY A. WILT

CIVIL ACTION NO. JKB-15-1447

:
:

Defendants
MEMORANDUM
Plaintiff Anthony Simmons (“Simmons”), a Maryland Division of Correction (“DOC”)
prisoner housed at North Branch Correctional Institution in Cumberland (“NBCI”), seeks
injunctive relief mandating his removal from segregation confinement and transfer to Patuxent
Institution (“Patuxent”).

The case is before the court on defendants’ unopposed2 Motion to

Dismiss or, in the Alternative, for Summary Judgment. ECF No. 14. No hearing is needed to
resolve the pending motion. See Local Rule 105.6 (D. Md. 2014). For the reasons stated below,
the dispositive motion, construed as a motion for summary judgment, will be GRANTED.
Plaintiff’s Allegations
Simmons alleges he has been housed at NBCI for more than four years, and that NBCI
personnel have refused to transfer him to Patuxent, where he has been accepted into a treatment

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2

The Clerk shall amend the docket to reflect the full and complete spelling of defendants’ names.

Pursuant to the dictates of Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), on November 18, 2015,
Simmons was notified that defendants Wilt and Zies had filed a dispositive motion, the granting of which could
result in the dismissal of his action. ECF 15. He was also informed that he was entitled to file materials in
opposition to that motion within seventeen (17) days from the date of that letter and that his failure to file a timely or
responsive pleading or to illustrate, by affidavit or the like, a genuine dispute of material fact, could result in the
dismissal of his case or in the entry of summary judgment without further notice of the court. Id. Simmons failed to
respond.

program.3 ECF No. 1 at p. 2. He further claims he was wrongfully placed on disciplinary
segregation for having a weapon, which he needed for protection from gangs, and states that he
never threatened injury to staff. Id. at pp. 2-3. He complains that after finishing his disciplinary
segregation sentence he has been housed on administrative segregation without cause, in
retaliation for a complaint he made against NBCI staff, and because Lt. Wilt believes he is
dangerous. Id. at p. 2.
Defendants’ Response
Wilt has submitted a declaration stating that he took no action to hold Simmons on
segregation beyond the expiration of his disciplinary segregation sentence. ECF 14-3, ¶ 5.
Similarly, Zies has submitted a declaration indicating she has not impeded Simmons’s progress
through segregation, and that according to correctional protocol, Simmons’s status is evaluated at
regular intervals by a team of correctional personnel. ECF No. 14-4, ¶ 5.
Defendants argue that the record provides no support regarding Simmons’s allegations of
threats from gang members, but does show that Simmons’s disciplinary history is poor and has
resulted in his placement on segregation for a substantial period of time. ECF 14-2 at pp. 49 -51.
He was convicted of rules violations in four incidents in 2012 (id. at p. 49), including an incident
involving the making of a homemade weapon.4 Id. at pp. 67-77. Relevant here, on October 10,
2013, he verbally threatened harm against a correctional officer. Id. at 52-66.
Defendants have provided monthly Case Management Assignment Sheets that reflect the
monthly reviews by a team of correctional officials. Id. at pp. 2-18. These reports, which

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Patuxent is a maximum security correctional facility within Maryland’s Department of Public Safety and
Correctional Services (“DPSCS”) that offers clinic programs for prisoners with severe character disorders who
typically have a history of substance dependency as well as those with other mental health issues. See
https://www.dpscs.state.md.us/agencies/patuxent.shtml.
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Simmons also was convicted of rules violations in two incidents in 2010. Id. at p. 49.

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commence May 27, 2014, include an investigative report stating that there is “reason to believe”
that Simmons would create a risk to the security and safety of the institution if returned to
general population. Id. at p. 18. Simmons was given a Notice of Assignment to Administrative
Segregation with a statement of reasons. Id. at p. 17. From May 2014 through February 3, 2015,
neither Wilt nor Zies participated in Case Management committee review of Simmons’s
administrative segregation status.5 Id. at pp. 5-16. Neither had individual responsibility for the
monthly determination of whether to retain Simmons on administrative segregation.
Simmons refused to participate in his monthly administrative segregation assignment
reviews in February, March, and April of 2015. Id. at pp. 25-26. On January 6, 2015, the
security review recommended that his security status be increased from Maximum I to
Maximum II. Id. at p. 26.
Defendants provide information showing that Simmons was referred for treatment at
Patuxent on July 29, 2015, nearly three months after he filed this lawsuit. ECF 14-2 at p. 21.
Examination of the DOC’s Inmate Locator service shows that as of within date, he remains at
NBCI.
Defendants argue that Simmons’s allegations are not cognizable and, thus, they are
entitled to summary judgment on the merits.6
Standard of Review
Defendants’ motion is styled as a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, for summary judgment under Rule 56. A motion styled

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Zies was involved with the Case Management committee for February 26, 2015. Id.

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Defendants also argue that Simmons did not complete administrative exhaustion of his allegations prior to bringing
suit in federal court. ECF 14-5 at ¶ 3. Although it appears that Simmons may not have filed administrative remedy
procedure (“ARP”) grievances, defendants have not shown that classification matters are subject to the ARP
process. Thus, the court will address the merits of Simmons’s claims.

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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 County, 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, 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). 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).
In contrast, a court may not convert a motion to dismiss to one for summary judgment
sua sponte, unless it gives notice to the parties that it will do so. See Laughlin, 149 F.3d at 261
(stating that a district court “clearly has an obligation to notify parties regarding any courtinstituted changes” in the posture of a motion, including conversion under Rule 12(d)); Finley
Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp., 109 F.3d 993, 997 (4th Cir. 1997) (“[A]
Rule 12(b)(6) motion to dismiss supported by extraneous materials cannot be regarded as one for
summary judgment until the district court acts to convert the motion by indicating that it will not
exclude from its consideration of the motion the supporting extraneous materials.”); see also
Fisher v. Md. Dept. of Pub. Safety & Corr. Servs., Civ. No. JFM-10-0206, 2010 WL 2732334, at
*3, 2010 U.S. Dist. LEXIS 68772, at *8-10 (D. Md. July 8, 2010).

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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.” 5 C 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, 167.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012). However, “the party opposing summary judgment
‘cannot complain that summary judgment was granted without discovery unless that party has
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
adequately the issue that discovery is needed, the non-movant 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)).

Notably, “‘Rule 56(d) affidavits cannot simply demand discovery for the sake of

discovery.’” Hamilton v. Mayor & City Council of Baltimore, 807 F. Supp. 2d 331, 342 (D. Md.
2011) (quoting Young v. UPS, No. DKC-08-2586, 2011 WL 665321, at *20, 2011 U.S. Dist.

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LEXIS 14266, at *62 (D. Md. Feb. 14, 2011)). “Rather, to 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 non-moving 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 Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x. 274
(4th Cir.), cert. denied, 555 U.S. 885 (2008).
If a non-moving 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 non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. 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).

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Plaintiff has not filed an affidavit under Rule 56(d). Indeed, he has not responded in any
way to the dispositive motion filed by Zies and Wilt. Thus, the Court is satisfied that it is
appropriate to address the defendants’ motion as one for summary judgment.
Summary judgment is governed by Rule 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 requirement is that there be no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). “The party
opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d
514, 525 (4th Cir. 2003) (alteration in original) (quoting former Fed. R. Civ. P. 56(e)). The court
should “view the evidence in the light most favorable to . . . the nonmovant, and draw all
inferences in her favor without weighing the evidence or assessing the witness’ credibility.”
Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). Because
plaintiff is self-represented, his submissions are liberally construed. See Erickson v. Pardus, 551
U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative obligation of the trial
judge to prevent factually unsupported claims and defenses from proceeding to trial.’” Bouchat,
346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778–
79 (4th Cir. 1993), and citing Celotex Corporation v. Catrett, 477 U.S. 317, 323–24 (1986)).

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Analysis
Simmons’s primary complaint centers on his claim that he should not be housed on
administrative segregation now that his term of disciplinary segregation has been completed, but
instead should be transferred to Patuxent. Defendants’ arguments to the contrary find support
both as to the law and the facts as applied to this case.
A classification decision or a transfer from one prison facility to another typically does
not implicate a protected liberty interest or state a claim under § 1983. See Meachum v. Fano,
427 U.S. 270 (1976); Paoli v. Lally, 812 F.2d 1489, 1492-93 (4th Cir. 1987). Indeed, prisoners
have no liberty interest in being housed in any particular facility, see Olim v. Wakinekona, 461
U.S. 238, 244-45 (1983), and are not entitled as a matter of constitutional law to be housed at any
particular security classification or prison. See Slezack v. Evatt, 21 F. 3d 590, 595 (4th Cir. 1994).
Simmons’s suggestion that his placement on administrative segregation is retaliatory
based on his litigation history potentially states an actionable claim,7 but is not supported in light
of his adjustment history, noted above. Likewise, his claim that his possession of a weapon was
justified because he feared gang retaliation finds no support in the record.8 Simmons is provided
monthly review with regard to his continued placement on segregation and typically refuses to
participate in those reviews. Further, the individuals he names as responsible for his continued
segregation placement played a limited role in those reviews.

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Retaliation, though it is not expressly referenced in the Constitution, is nonetheless actionable because retaliatory
actions may tend to chill an individual’s exercise of constitutional rights. See Perry v. Sindermann, 408 U.S. 593,
597 (1972). In order to prevail on a claim of retaliation, Simmons “must allege either that the retaliatory act was
taken in response to the exercise of a constitutionally protected right or that the act itself violated such a right.”
Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994). Where there is no impairment of a plaintiff’s rights, there is no need
for the protection provided by a cause of action for retaliation. Thus, a showing of adversity is essential to any
retaliation claim. See ACLU of Maryland, Inc. v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir. 1993).
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There is no showing that corrections personnel failed to protect Simmons from a known risk of harm, or that they
were aware that he was concerned about gang activity.

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What is apparent is that Simmons’s conduct – not defendants’ alleged retaliatory animus
– is the controlling factor leading to his security classification, inability to move toward
placement at Patuxent, and continued placement on segregation.
Failure to Protect
Simmons implies that correctional personnel are ignoring the danger posed by gang
members. To the extent that this claim is construed as a failure to protect claim, it fails.
“The Eighth Amendment’s prohibition on cruel and unusual punishments imposes certain
basic duties on prison officials.” Raynor v. Pugh, __ F.3d __, 2016 WL1056091*2 (4th Cir.
2016) citing Farmer, 511 U.S. at 825). Those duties “include maintaining humane conditions of
confinement, including the provision of adequate medical care and . . . ‘reasonable measures to
guarantee the safety of the inmates.’” Id.

“[N]ot every injury suffered by a prisoner at the

hands of another ‘translates into constitutional liability for prison officials responsible for the
victim’s safety.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (citation omitted). A
two-part inquiry that includes both an objective and a subjective component must be satisfied
before liability is established. See Raynor, 2016 WL at *3.
Objectively, the prisoner “must establish a serious deprivation of his rights in the form of
a ‘serious or significant physical or emotional injury’” or substantial risk of either kind of injury.
Danser v. Stansberry, 772 F.3d 340, 346 – 47 (4th Cir. 2014). The objective inquiry requires
this Court to “assess whether society considers the risk that the prisoner complains of to be so
grave that it violates contemporary standards of decency to expose anyone unwillingly to such a
risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). A genuine dispute of fact regarding the
extent of the injury suffered precludes summary judgment. Raynor, 2016 WL at *5.

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Subjectively, a plaintiff must establish that the prison official involved had “a sufficiently
culpable state of mind” amounting to “deliberate indifference to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). Evidence establishing a
culpable state of mind requires actual knowledge of an excessive risk to the prisoner’s safety or
proof that prison officials were aware of facts from which an inference could be drawn that a
substantial risk of serious harm exists and that the inference was drawn. Id. at 837. A plaintiff
may “prove an official’s actual knowledge of a substantial risk ‘in the usual ways including
inference from circumstantial evidence” so that “’a factfinder my conclude that a prison official
knew of a substantial risk from the very fact that the risk was obvious.’” Raynor, 2016 WL at
*3.
In Pressly v. Hutto, 816 F.2d 977 (4th Cir. 1987), a Virginia inmate sued correctional
officers for failing to protect him from attack by another inmate. The Court of Appeals held that
the Eighth Amendment protects a convicted inmate from physical harm at the hands of fellow
inmates resulting from the deliberate or callous indifference of prison officials to a specific
known risk of such harm. Id. at 979. Nonetheless, complaints that do not allege deliberate
indifference to a specific known risk of harm fail to state a claim under § 1983. See Ruefly v.
Landon, 825 F.2d 792, 793 (4th Cir. 1987).
Simmons’s claim that he is in danger is speculative at best. Defendants are entitled to
summary judgment on this claim.
Conclusion
Defendants’ dispositive motion will be granted. A separate order follows.
Date: April 26, 2016

_____________/s/__________________
James K. Bredar
United States District Judge

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