Jean Germain v. Bobby Shearin

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-02267-JFM Copies to all parties and the district court. [999873556]. [15-6050]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6050

JEAN GERMAIN,
Plaintiff - Appellant,
v.
BOBBY P. SHEARIN,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:13-cv-02267-JFM)

Argued:

March 22, 2016

Decided:

June 29, 2016

Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.

Affirmed as modified by unpublished opinion.
Judge Voorhees
wrote the opinion, in which Judge Gregory and Judge Duncan
joined.

ARGUED: Scott Martin, GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellant. Stephanie Judith Lane-Weber, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee.
ON BRIEF: Brian E. Frosh, Attorney General of Maryland, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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VOORHEES, District Judge:
This

action

involves

statutory

and

constitutional

claims

asserted by Jean B. Germain, a Muslim inmate in the custody of
the

State

of

Correctional

Maryland,
Services

Department

and

P.

Shearin,

events.

the

the

Safety

North

and

Branch

Germain asserts claims against

warden

Specifically,

Public

at

housed

Correctional Institute (“NBCI”).
Bobby

of

at

NBCI

Germain’s

during

all

allegations

pertinent

concern

the

quantity of food provided to him as a practicing Muslim during
Ramadan in 2013.
Germain

appeals

the

district

court’s

order

granting

Shearin’s motion for summary judgment and denying his request
for

discovery.

For

the

reasons

that

follow,

we

affirm

the

district court’s order on the alternative ground that Germain
failed to exhaust his claims.
This court reviews de novo whether a district court erred
in granting summary judgment.
213 (4th Cir. 2013).

Glynn v. EDO Corp., 710 F.3d 209,

In doing so, we are required to view the

facts and all reasonable inferences in the light most favorable
to the non-movant.

Id.

Summary judgment can only be granted if

“there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law.”
affirm

the

district

alternative

grounds.

court’s

grant

McMahan
3

v.

of

Id.

This court can

summary

Int’l

Ass’n

judgment
of

on

Bridge,

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Structural & Ornamental Iron Workers, 964 F.2d 1462, 1467 (4th
Cir. 1992).

In this case, Germain has failed to exhaust his

administrative remedies.

Given that this issue is dispositive

of the entirety of this lawsuit, any additional analysis of the
underlying proceedings would be dicta.
The

Prison

Litigation

Reform

Act

(“PLRA”)

provides

that

“[n]o action shall be brought with respect to prison conditions
. . . by a prisoner . . . until such administrative remedies as
are available are exhausted.”
added).

Proper

exhaustion

42 U.S.C. § 1997e(a) (emphasis
has

been

mandated

by

Congress;

therefore, it is not a requirement subject to the discretion of
the presiding judge.

Ross v. Blake, No. 15-339, slip. op. at 5

(U.S. June 6, 2016); Woodford v. Ngo, 548 U.S. 81, 85 (2006).
“Proper exhaustion demands compliance with an agency’s deadlines
and

other

critical

procedural

rules

because

no

adjudicative

system can function effectively without imposing some orderly
structure on the course of its proceedings.”

Woodford, 548 at

91.
The sole exception to the PLRA’s exhaustion requirement is
found in the plain meaning of the text itself: “A prisoner need
not exhaust remedies if they are not ‘available.’”
op. at
where

1.

Ross, slip.

The Supreme Court recently provided three scenarios

administrative

remedies

“on

the

books”

are

considered

“unavailable”: (1) where the procedure “operates as a simple
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because

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officials

are

“unable

or

consistently

unwilling to provide any relief to aggrieved inmates[;]” (2)
where the grievance process itself is so incomprehensible that
“no ordinary prisoner can discern or navigate it[;]” and (3)
where administrators prevent inmates from availing themselves of
remedies

by

intimidation.”

way

of

“machination,

misrepresentation,

or

Id., slip op. at 9-10.

The PLRA applies to Germain’s claims. Anderson v. XYZ
Corr. Health Servs., Inc., 407 F.3d 674, 676 (4th Cir. 2005) (§
1983 claims); Wall v. Wade, 741 F.3d 492, 495 (4th Cir. 2014)
(RLUIPA).

Shearin has also raised the exhaustion issue as an

affirmative

defense.

See

Jones

v.

Bock,

549

U.S.

199,

216

to

the

(2007).
To

determine

proper

exhaustion,

administrative requirements at NBCI.

we

look

Id. at 218 (“[I]t is the

prison’s requirements, not the PLRA, that define the boundaries
of proper exhaustion.”).

In Maryland, a prisoner must generally

pass through three steps before filing in federal court.

Minton

v. Childers, 113 F. Supp. 3d 796, 801 (D. Md. 2015); Md. Code
Ann., Corr. Servs. § 10-210(a) (inmate may not file in court
until he or she has exhausted administrative remedies), § 10-206
(inmate

must

satisfy

procedures

contained

Correction’s regulations before final step).

in

Division

of

The methods for

satisfying these steps can be found in the Inmate Handbook, the
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Maryland Code of Regulations, and the Maryland Department of
Correction Directives (the “DCDs”).
The first step requires the inmate to file a request for
administrative remedy with the warden.
801; Md. Code Regs. § 12.07.01.02.D.
is

denied,

he

or

she

may

Minton, 113 F.3d at

appeal

If the inmate’s request
Commissioner

of

Minton, 113 F.3d at 801.

Correction (the “Commissioner”).

to

the

If

this appeal is denied, the inmate must file a grievance with
the Inmate Grievance Office (“IGO”).

Id.

Shearin argues that Germain failed to exhaust his claims
because there is no record of a grievance filed by Germain
concerning these allegations.
conceded

that

he

required steps.

only

J.A. 20.

proceeded

See J.A. 29.

In response, Germain

through

two

of

the

three

The record shows that Germain

filed a request for administrative remedy on July 13, 2013.
J.A. 24.

The request stated that NBCI made it difficult for

him to observe Ramadan because he was not receiving adequate
nutrition.

Id.

The

request

was

dismissed

for

procedural

reasons pending submission of certain documents and responses
to questions.
responses.

Id.

J.A. 26.

On July 30, 2013, Germain submitted his
On July 31, 2013, this re-submission was

also dismissed for procedural reasons.

Id.

Germain argues that he should be excused from filing a
grievance because he did not receive required documentation
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from the Commissioner.

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Specifically, Germain declared that he

filed an appeal of the dismissal on August 4, 2013, but was not
provided “with the Part-C receipt . . . or a response.”
29.

Germain

documents

states

will

not

that
be

a

grievance

considered

by

filed
the

without

IGO

and

J.A.
these

will

be

dismissed as wholly lacking in merit. However, a review of the
underlying

record

compared

with

NBCI’s

administrative

requirements shows that Germain necessarily filed suit before
he

could

have

even

attempted

to

finish

the

administrative

process. 1
DCD
NBCI. 2

185-002

concerns

“Administrative

Remedy

Policy”

at

DCD 185-002 states that first-level appeals to the

Commissioner must be mailed on a form located at Appendix 6 to
the

Directive.

DCD

185-002.VI.M.1-2

&

app.

6.

The

Commissioner is required to send Part C to the inmate five
business days after receipt of the appeal.

DCD 185-002.VI.M.5.

1

Given that Germain’s response demonstrates that exhaustion
has not occurred, we need not examine whether or not the final
step was “available” to Germain without Part C.
2

DCD 185-002 is a public record available at the Maryland
Department of Public Safety and Correctional Services website
and, therefore, may be judicially noticed. Philips v. Pitt Cty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (judicial
notice); Md. Dep’t Pub. Safety and Corr. Svcs., Div. Corr.,
Administrative Remedy Policy, (last accessed May 10, 2016)
(saved
as
ECF
opinion
attachment),
http://www.dpscs.maryland.gov/publicservs/procurement/ihs/indexDOC185.shtml.

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Part C memorializes the date on which the Commissioner received
the appeal.
date.

Id.

For

Other limitation periods run from the Part C

example,

an

appeal

is

deemed

denied

if

the

Commissioner does not respond “within 30 calendar days of the
date the Commissioner received the appeal.”

Id. at VI.M.14.

Germain states that he filed his appeal to the Commissioner
on August 4, 2013.

J.A. 29.

Accordingly, the Commissioner was

required to mail Germain Part C five days after the date of
receipt.

The

most

August 9, 2013.

conservative

estimate

for

this

is

Germain signed his complaint on July 30, 2013,

a day before his re-submitted request was denied.
26.

date

J.A. 9-10,

On August 5, 2013, his complaint was docketed by the

Clerk’s

Office

Accordingly,

in

the

Germain

District

necessarily

of

Maryland.

failed

to

J.A.

wait

for

5.
the

Commissioner to send him Part C.
Failing to wait for this five day period to expire shows
that

Germain

did

not

so

much

as

attempt

to

exhaust

administrative remedies before filing this lawsuit.
has

not

occurred

and

dismissal

is

warranted

his

Exhaustion
when

an

institution’s appeal process necessarily must continue after
the filing of the complaint.
1199

(9th

Cir.

2002)

McKinney v. Carey, 311 F.3d 1198,

(stating

that

First,

Second,

Third,

Seventh, Eleventh, and D.C. Circuits follow this rule); see
also Jackson v. D.C., 254 F.3d 262, 269 (D.C. Cir. 2001);
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Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); French
v. Warden, 442 Fed. App’x 845, 846 (4th Cir. Aug. 12, 2011)
(stating that “based on the dates of his initial grievance and
the filing of the complaint in this action, [the inmate] could
not have completed the grievance process before he filed suit
in the district court.”).
Moreover, Germain’s failure to wait the full five days
renders his professed excuse for failing to file a grievance
untenable.

This case does not implicate any of the scenarios

envisaged by the Supreme Court in Ross.
shows

that

Germain

did

not

reach

a

First, the record
dead

end

in

the

administrative process but rather circumvented it by filing
prematurely.

Second,

the

process

at

issue

in

the

instant

appeal is not so incomprehensible that no reasonable inmate
could understand it: the five day period is a part of the
orderly structure that allows NBCI’s administrative process to
function

effectively.

Finally,

the

third

scenario

is

not

implicated because Germain’s failure to wait for Part C was not
the result of any misconduct on the part of NBCI officials.
Accordingly, Shearin was correct in arguing that Germain
failed to exhaust his claims because he did not complete the
administrative process by filing a grievance.

We, therefore,

conclude that Germain failed to exhaust his claims prior to
initiating this suit.

Given that Germain failed to his exhaust
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claims,

without

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dismissal

prejudice

become complete.

to

is
his

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mandatory.
right

to

However,
refile

dismissal

should

is

exhaustion

Accordingly, the ruling of the district court

is
AFFIRMED AS MODIFIED.

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