Bell v. Messina et al

Filing 15

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 6/1/2018. (c/m 6/1/2018 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENT BELL,

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Plaintiff,

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v.

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J MESSINA, et al.,

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Defendants.

Civil Action No. GLR-17-1354

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***
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants, J Messina, Stacey Hoffman,
Jason Ganoe, and Richard Dovey’s Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment (ECF No. 10). The Motion is ripe for disposition, and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2016). For the reasons outlined below, the
Court will grant Defendants’ Motion.
I.

BACKGROUND1

In his unsworn Complaint, Bell provides the following recitation of events and statement
of claim:
On 02/01/17 at 8:40 am, my teacher a Mrs. J. Messina is guilty of
slander and racial discrimination when she got upset when I said
it[’]s black history month and quoted the 13th Amendment, she
said “I was stupid and ignorant[”] in front of the whole class.
When I said [“]lady this is the truth[”]—she boldly said “don[’]t
call me lady, and your [sic] just ignorant.” I then went and told the
principal Stacey Hoffman of racial discrimination and a couple of
days later, 4 or 6 days later I got a ticket for #400 disobey an order
& #405 demonstrate disrespect or use vulg[a]r language. The
hearing officer, a Mr Jason Ganoe said “even though this ticket
1

Unless otherwise noted, the facts outlined here are taken from Bell’s Complaint
and the Court views them in the light most favorable to Bell.

makes no sen[s]e and you don[’]t have any witnesses” which I told
him I did as I wrote out on my appeal or challenge to charge, the
class, the officer outside of class at desk and the principal I told
immediately, he said “well her being a white woman you should
have just shut up and stayed in your place[!”]. He, Mr. Ganoe
wrote based on the credible evidence and findings of facts, provide
a written explanation for the decision, 15 days cell restriction. The
warden, Mr Richard Dovey. [sic] I[’]m citing false statement,
false applications/affidavits and perjury. This whole situation is to
show me to bow down to white supremacy & white privilege. All
Defendants are employees of the Maryland Correctional Training
Center in Hagerstown, MD[.]
(Compl. at 2–3, ECF No. 1).2

Bell’s Complaint is not a model of clarity. Based on his allegations that Messina
“is guilty of . . . racial discrimination” for chastising Bell when he “said it[’]s Black
History Month and quoted the 13th Amendment,” (id. at 2), and, possibly, for charging
Bell with inmate rule violations, Bell appears to bring a claim under 42 U.S.C. § 1983
(2018) for violating Bell’s rights under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution.3 Further, based on his allegations of “false
statement, false applications/affidavits, and perjury,” that seem to be the basis of his

2

When quoting from Bell’s filings, the Court has modified the capitalization
throughout to be consistent with ordinary writing standards, and does not further identify
these modifications. All other modifications are noted.
3
For the first time in his Opposition to Defendant’s dispositive Motion, Bell
alleges that Messina violated his First Amendment rights. (Pl.’s Opp. at 3, ECF No. 131). Because he failed to bring this allegation in his Compliant, it is not properly before
the Court. See Caudle v. Stewart, No. 16-4066, 2018 WL 1406915, at * 5 (D.Md. Mar.
16, 2018) (citing Middlebrooks v. Univ. of Md., 166 F.3d 1209 (4th Cir. 1999)
(unpublished)). Accordingly, the Court declines to consider it.
2

inmate rule violations, (Compl. at 3), Bell appears to bring a state law claim for
defamation or malicious prosecution.4
Finally, Bell states that Ganoe, purportedly acting in the capacity of hearing
officer, violated his rights under the Due Process Clause of the Fourteenth Amendment
during the disciplinary hearing by: failing to let Bell call witnesses despite Bell
identifying witnesses on his violation notice receipt; injecting racial considerations into
Bell’s disciplinary hearing, (see Compl. at 3) (“[Ganoe] said ‘well her being a white
woman you should have just shut up and stayed in your place’”); and finding Bell guilty
of disciplinary violations despite Ganoe’s acknowledgment that the reported violation
notice “makes no sen[s]e.” (Id.).5

4

Bell cites Md. Code Ann. Crim. Law § 9-101, which criminalizes perjury. (Pl.’s
Opp. at 5). However, a state criminal offense does not amount to a private cause of
action in federal court, so Bell cannot maintain a private action against Defendants for the
crime of perjury. To the extent that Bell is seeking criminal prosecution of Defendants
for perjury, this claim also fails, as “a private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973).
5
For the first time in his Opposition, Bell seeks to hold Defendant Dovey liable in
his supervisory capacity for the actions of Messina, Hoffman, and Ganoe. Bell’s claim
against Dovey will be treated like his First Amendment claim and disregarded as not
properly before the Court. While Bell insists that he did state a claim against Dovey, his
insistence is belied by his Complaint which, as quoted above, states in an incomplete
sentence and without any explanatory context, “The Warden, Mr. Richard Dovey.”
(Compl. at 3).
3

II.
A.

DISCUSSION

Standard of Review
1.

Motion to Dismiss

“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint,”
not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v.
City of Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999)). A complaint fails to state a
claim if it does not contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that
is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). “Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though
the plaintiff is not required to forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each element. Goss v. Bank of Am.,
N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012)), aff’d sub nom., Goss v. Bank of Am., NA, 546 F.App’x 165
(4th Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the complaint as a
whole, consider the factual allegations in the complaint as true, and construe the factual
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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) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But, the court need not
accept unsupported or conclusory factual allegations devoid of any reference to actual
events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal
conclusions couched as factual allegations, Iqbal, 556 U.S. at 678.
Bell filed his Amended Complaint pro se. Pro se pleadings are liberally construed
and held to a less stringent standard than pleadings drafted by lawyers. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976));
accord Brown v. N.C. Dep’t of Corr., 612 F.3d 720, 722 (4th Cir. 2010).

Pro se

complaints are entitled to special care to determine whether any possible set of facts
would entitle the plaintiff to relief. Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). But even
a pro se complaint must be dismissed if it does not allege “a plausible claim for relief.”
Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012)
(citation and internal quotation marks omitted).
2.

Conversion to a Motion for Summary Judgment

In this case, Defendants filed a Motion to Dismiss, or in the Alternative, for
Summary Judgment. (ECF No. 10). A motion styled as a motion to dismiss or, in the
alternative, for summary judgment implicates the Court’s discretion under Rule 12(d).
See Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436–37
(D.Md. 2011), aff’d sub nom. Kensington Volunteer Fire Dep’t, Inc. v. Montgomery
Cty., 684 F.3d 462 (4th Cir. 2012). This Rule provides that when “matters outside the
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pleadings are presented to and not excluded by the court, the [Rule 12(b)(6)] motion must
be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
The Court “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.’” Wells-Bey v. Kopp, No. ELH-12-2319, 2013 WL 1700927, at
*5 (D.Md. Apr. 16, 2013) (quoting 5C Wright & Miller, Federal Practice & Procedure §
1366, at 159 (3d ed. 2004, 2012 Supp.)). The Court’s complete discretion is guided by
the United States Court of Appeals for the Fourth Circuit’s two-part test for proper
conversion of a Rule 12(b)(6) motion to a Rule 56 motion. Under this test, the “parties
[must] be given some indication by the court that it is treating the 12(b)(6) motion as a
motion for summary judgment” and “the parties [must] first ‘be afforded a reasonable
opportunity for discovery.’” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of
Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th
Cir. 1985)).
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. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).
Here, Defendants caption their Motion in the alternative for summary judgment
and attach matters beyond Bell’s Complaint for the Court’s consideration. (ECF Nos. 102 through 10-7).

In response, Bell filed an Opposition that, in part, describes
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constitutional violations based upon his personal knowledge, and Bell swears them under
the penalties of perjury. (See Pl.’s Opp. Letter at 1, ECF No. 13-2). As a result, his
Opposition is the equivalent of an opposing affidavit for summary judgment purposes.
Cf. Davis v. Zahradnick, 600 F.2d 458, 459–60 (4th Cir. 1979) (holding that verified
complaints are the equivalent of an opposing affidavit because the allegations are based
on personal knowledge and sworn under the penalties of perjury). Nor does Bell request
additional discovery. Because Bell offers his own matters beyond his Complaint and
does not request additional discovery, the Court will construe Defendants’ Motion as a
motion for summary judgment.
3.

Motion for Summary Judgment

In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
or other materials,” that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A).
Significantly, a party must be able to present the materials it cites in “a form that would
be admissible in evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and

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declarations “must be made on personal knowledge” and “set out facts that would be
admissible in evidence,” Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87
(1986). The nonmovant cannot create a genuine dispute of material fact “through mere
speculation or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526
F.3d 135, 141 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985)).
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248;
accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material”
fact arises when the evidence is sufficient to allow a reasonable jury to return a verdict in
the nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to
make a sufficient showing on an essential element of her case where she has the burden
of proof, “there can be ‘no genuine [dispute] as to any material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving party’s case

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necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986).
B.

Analysis
1.

Claims against Hoffman

The Court concludes that Bell has failed to state a claim against Defendant
Hoffman. The sole mention of Hoffman in Bell’s Complaint is his statement that, after
Bell’s February 1, 2017 interaction with Messina, he “went and told the Principal Stacey
Hoffman of racial discrimination and a couple of days later, 4 or 6 days later I got a
[disciplinary] ticket.” (Compl. at 3). Bell does not articulate whether Hoffman had
anything to do with the disciplinary ticket,6 nor does he mention Hoffman in connection
with the disciplinary hearing. Thus, the Court will grant the Motion as to Bell’s claims
against Hoffman.
2.

Equal Protection Claims

The Court further concludes that Bell fails to provide sufficient evidence to
support a claim under the Equal Protection Clause.
The Equal Protection Clause is “essentially a direction that all persons similarly
situated should be treated alike.” Cleburne v. Cleburne Living Center, 473 U.S. 432, 439
(1985) (citation omitted).

To establish a prima facie case for violation of equal

protection, a plaintiff must show first “that he has been treated differently from others
6

Indeed, Hoffman’s name is totally absent from the violation notice. (See Hull
Decl. at 9, ECF No. 10-3) (violation notice prepared by Messina and approved by
supervisor “Hewitt”). Although Bell stated in his violation notice receipt that he wanted
the “principle” as a witness at his hearing, (id. at 10), there is no evidence that suggests
that Hoffman was aware of this request.
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with whom he is similarly situated,” and second “that the unequal treatment was the
result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648,
654 (4th Cir. 2001). “If a plaintiff makes this initial showing, the court analyzes the
disparity under the appropriate level of scrutiny.” Sandlands C&D LLC v. Cty. of Horry,
737 F.3d 45, 55 (4th Cir. 2013) (citing Morrison, 239 F.3d at 654).
Here, Bell has failed to provide sufficient evidence that he was treated differently
than similarly situated individuals. Construing the evidence in the light most favorable to
Bell, a similarly-situated individual would be another student who misbehaved during
class but was not charged with an inmate rule violation. Bell has not identified any such
individuals.7 Accordingly, Bell cannot demonstrate that he was treated differently on the
basis of his race, and the Court will grant the Motion as to his claims under the Equal
Protection Clause.
3.

Due Process Claims

Finally, the Court concludes that Bell fails to provide sufficient evidence to
support a claim under the Due Process Clause.
The Fourteenth Amendment’s Due Process Clause guarantees that no state shall
“deprive any person of . . . liberty . . . without due process of law.” U.S. Const. amend.
XIV. Imprisonment is a deprivation of a liberty interest, but it is constitutional, provided
that the conviction is valid and “the conditions of confinement do not otherwise violate

7

Moreover, even though Bell alleges “racial discrimination,” he has curiously
failed to mention his own race in the Complaint, other than to imply that he is not white.
(See Compl. at 3) (“This whole situation is to show me to bow down to white supremacy
and white privilege.”).
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the Constitution.” Meachum v. Fano, 427 U.S. 215, 224 (1976). Prisoners retain certain
rights under the Due Process Clause. But, prison disciplinary proceedings are not part of
a criminal prosecution and the full array of rights due a defendant in such proceedings
does not apply. See Wolff v. McDonnell, 418 U.S. 539, 556, 564–66 (1974) (listing
limited due process protections that apply to prison disciplinary proceedings including, as
relevant to Bell’s claim, the right to “call witnesses and present documentary evidence in
his defense when permitting him to do so will not be unduly hazardous to institutional
safety or correctional goals”).
To succeed on a due process claim, a plaintiff must first show the existence of a
protected property or liberty interest. Mathews v. Eldridge, 424 U.S. 319, 332 (1976);
Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Absent a protected liberty interest, a
plaintiff cannot successfully claim that his due process rights were violated because
“[p]rocess is not an end in itself.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
In the prison context, there are two different types of constitutionally protected
liberty interests that trigger due process protections. The first is created when there is a
state-created entitlement to an early release from incarceration. Bd. of Pardons v. Allen,
482 U. S. 369, 381 (1987) (state created liberty interest in parole); Wolff, 418 U.S. at 557
(state created liberty interest in good conduct credits). The second type of liberty interest
is created by the imposition of an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484
(1995). Following the reasoning of the Supreme Court in Sandin, the Fourth Circuit held
that a liberty interest is not implicated when inmates are placed on administrative
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segregation, because such placement does not constitute an atypical and significant
hardship when compared with conditions inmates can be expected to experience as an
ordinary incident of prison life. See Beverati v. Smith, 120 F.3d 500, 502–04 (4th Cir.
1997)
Because Bell does not provide evidence that his disciplinary violation resulted in
the loss of good-time credits or otherwise implicated a state-created entitlement to an
early release from incarceration, he is only entitled to due process protections if his
punishment—fifteen days of cell restriction—amounted to an atypical and significant
hardship. The Court concludes that Bell does not sufficiently make such a showing.
As noted above, courts have previously held that periods of administrative or
disciplinary segregation, even with restrictive conditions, are not an “atypical and
significant hardship” to trigger due process protections. See, e.g., Incumaa v. Stirling,
791 F.3d 517, 527 (4th. Cir. 2015). Moreover, this Court has concluded on numerous
occasions that even cell restriction for periods longer than the fifteen days that Bell
received does not trigger due process protections. See, e.g., Germain v. Bishop, TDC-151421, 2018 WL 1453336, at *12 (D.Md. Mar. 23, 2018) (no due process interest in
avoiding 90-day period of cell restriction, among other punishment); Reynolds v.
Shearin, DKC-13-2495, 2015 WL 570308, at *5 (D. Md. Feb. 10, 2015) (same, for 60day period of cell restriction); Jones v. Morgan, RWT–10–2928 2011 WL 3299344, at *3
(D. Md. July 29, 2011) (“The addition of 30–days' cell restriction to Jones’s punishment
similarly fails to implicate a liberty interest.”).

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In sum, Bell provides insufficient evidence that his fifteen-day cell restriction
amounted to the atypical hardship under Sandin or Beverati. Accordingly, the Court will
grant the Motion as to Bell’s claims under the Due Process Clause.8
III.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss or, in the Alternative,
for Summary Judgment (ECF No. 10) is GRANTED. A separate Order follows.

Entered this 1st day of June, 2018.

/s/
George L. Russell, III
United States District Judge

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The Court declines to consider any defamation or malicious prosecution claims
under Maryland law. District courts may decline to exercise supplemental jurisdiction
over a state claim if “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3) (2018). District courts “enjoy wide latitude” in
making this determination. Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995).
Because Bell cannot prevail on his constitutional claims—which the Court has original
jurisdiction over—this Court declines to exercise supplemental jurisdiction under
§ 1367(c)(3) and (4) over Bell’s claims under Maryland law.

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