evidence and that all investigative files were made available to the prosecutor. The County defendants point out that the Walkers failed to submit affidavits or proffer any other evidence to support their claim that the County defendants withheld a separate file of exculpatory evidence. The County defendants thus assert that they are entitled to summary judgment because the Walkers have not made a sufficient proffer. See Fed. R.Civ.P. 56(e) (“When a motion for summary judgment is made and supported [by affidavits], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, [but must respond with] affidavits [that] set forth specific facts showing that there is a genuine issue for trial.”); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991) (<HOLDING>). The Walkers respond that their verified
holding that a claim not pleaded in the petition ie the complaint was not properly before the court on a motion for summary judgment holding that a nonmovant cannot defeat a motion for summary judgment merely  on the basis of conjecture or surmise recognizing the general rule that when one party files a motion for summary judgment the nonmovant cannot merely rely on matters pleaded in the complaint but must by factual affidavit or the like respond to the motion holding that where a court considering a rule 12b6 motion relies on matters outside the pleading the motion must be treated as a rule 56 motion for summary judgment holding that the judge cannot consider factual statements of counsel in a motion for summary judgment