Germain v. Shearin
MEMORANDUM. Signed by Judge J. Frederick Motz on 8/30/2017. (c/m 8/30/17 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BOBBY P. SHEARIN
Civil Action No. JFM-16-2685
In response to the above-entitled civil rights complaint, defendant moves to dismiss or for
Plaintiff opposes the motion and moves for appointment of
counsel. ECF 17 & 18. The court finds a hearing unnecessary.
See Local Rule 105.6 (D. Md.
2016). For the reasons that follow, defendant's motion, construed as a motion to dismiss, shall
be granted and plaintiff s motion for appointment of counsel shall be denied.
Plaintiff Jean Germain is a prisoner committed to the custody of the Department of Public
Safety and Correctional
Services and incarcerated at North Branch Correctional
("NBCI"). Plaintiff filed the instant complaint following an appeal to the Fourth Circuit Court of
Appeals in Civil Action JFM-13-2267,
Shearin, Civil Action JFM-13-2267
which concerned the same claim.
See Germain v.
(D. Md.) at ECF 61 (Judgment of USCA affirming as
modified the judgment of this court). Plaintiff claims that during Ramadan 2013, which began
on July 9, 2013 and ended on August 5, 2013, defendant Bobby Shearin, who was the warden at
NBCI, violated correctional policy that requires officials to provide all fasting Muslims with a
wholesome breakfast as a pre-dawn meal and a lunch-dinner combination meal after sunset.
ECF 1 at p. 3. He claims that Shearin "approved a policy of starving inmates of the Islamic faith
who participated during Ramadan 2013 by providing them with only one wholesome meal a
day." Id. at pp. 3 - 4.
Plaintiff was signed up to participate in Ramadan in 2013. He claims that as a result of
the policy of being provided with only one meal per day, he was "forced to forfeit the benefits
that come with participating in the North Branch Ramadan program."
he suffered weight loss, severe hunger pangs, lightheadedness,
ECF 1 at p. 5. He claims
distress. Id. He further claims that because of the extreme physical weakness caused by the lack
of food, he was unable to perform daily prayers and had to stop fasting. Id.
Following this court's judgment in favor of defendant in plaintiffs
2013 civil case, he
filed a notice of appeal with the Fourth Circuit Court of Appeals. See Germain v. Shearin, Civil
(D. Md.) at ECF 54.
The appellate court noted that exhaustion of
is mandatory under the Prisoner Litigation Reform Act (PLRA),
reviewed the procedures in place at NBCI for processing administrative remedies, and concluded
Germain states that he filed his appeal to the Commissioner on August 4,2013.
Accordingly, the Commissioner was required to mail Germain Part C five days
after the date of receipt. The most conservative estimate for this date is August
9, 2013. Germain signed his complaint on July 30, 2013, a day before his resubmitted request was denied. On August 5, 2013, his complaint was docketed
by the Clerk's Office in the District of Maryland. Accordingly, Germain
necessarily failed to wait for 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 his administrative remedies before filing this
lawsuit. Exhaustion has not occurred and dismissal is warranted when an
institution's appeal process necessarily must continue after the filing of the
complaint. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (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); 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 ofthe scenarios envisaged by the Supreme Court in Ross.l First, the record
shows that Germain did not reach a 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 NBC I officials.
Germain, Slip Op. No. 15-6050 (4th Cir. 2016)(unpublished) at 11-12 (record citations omitted).
The appellate court then modified this court's judgment, noting that dismissal for failure to
remedies is "without prejudice to [Germain's]
right to refile should
exhaustion become complete." Id. at 13.
In the instant complaint, plaintiff claims that despite not being issued a receipt from the
of Correction for the appeal of the warden's
dismissal of his administrative
remedy procedure complaint ("ARP"), he filed a complaint with the Inmate Grievance Office
ECF 1 at p. 7. He does not indicate what action was taken by the IGO with respect to
his complaint; rather, he simply observes that "the IGO consistently denies plaintiff relief by
either ignoring plaintiff s grievances or by dismissing
them without a hearing on bogus
Standard of Review
The purpose of a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is to test the
sufficiency of the plaintiffs complaint. See Edwards v. Goldsboro, 178 F.3d 231, 243 (4th Cir.
1999). The Supreme Court articulated the proper framework for analysis:
Ross v.Blake._U.S._, 136 S.Ct. 1850 (2016).
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain
statement of the claim showing that the pleader is entitled to relief," in order to
"give the defendant fair notice of what the ... claim is and the grounds upon
which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957) (abrogated on other
grounds). While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, ibid.; Sanjuan v. American Board of
Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994), a plaintiffs
obligation to provide the "grounds" of his "entitle[ment] to relief' requires
more than labels and conclusions, and a formulaic recitation of the elements of
a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986)
(on a motion to dismiss, courts "are not bound to accept as true a legal
conclusion couched as a factual allegation").
Factual allegations must be
enough to raise a right to relief above the speculative level, see 5 C. Wright &
A. Miller, Federal Practice and Procedure ~ 1216, pp. 235-236 (3d ed. 2004)
(hereinafter Wright & Miller) ("[T]he pleading must contain something more .
. . than ... a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action"), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema
NA., 534 U.S. 506, 508, n.1 (2002); Neitzke v. Williams, 490 U.S. 319,
327(1989) ("Rule 12(b)(6) does not countenance ... dismissals based on a
judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416
U.S. 232,236 (1974) (a well-pleaded complaint may proceed even if it appears
"that a recovery is very remote and unlikely").
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnotes omitted).
This standard does not require defendant to establish "beyond doubt" that plaintiff can
prove no set of facts in support of his claim which would entitle him to relief. Id. at 561. Once
a claim has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint.
Id. at 562.
The court need not, however, accept
unsupported legal allegations, see Revene v. Charles Cty Comm'rs, 882 F.2d 870, 873 (4th Cir.
1989), legal conclusions couched as factual allegations, see Papasan v. Allain, 478 U.S. 265, 286
(1986), or conclusory factual allegations devoid of any reference to actual events, see United
Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
Defendant raises the affirmative defense of non-exhaustion and assert the complaint must
to 42 U.S.C.
administrative remedies as are available" before filing an action. 42 U.S.C. ~ 1997e(a), see also
Ross v. Blake,. _U.S._,
136 S.Ct. 1850, 1858 (2016) (An inmate "must exhaust available
remedies, but need not exhaust unavailable ones."). The statute provides in pertinent part that:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
This requirement is one of "proper exhaustion of administrative remedies, which 'means
using all steps that the agency holds out, and doing so properly (so that the agency addresses the
issues on the merits).'"
Woodford v. Ngo,. 548 U.S. 81,93 (2006) quoting Pozo v. McCaughtry,
286 F.3d 1022, 1024 (7th Cir. 2002) (emphasis in original). "[A]n administrative remedy is not
considered to have been available if a prisoner, through no fault of his own, was prevented from
availing himself of it." Moore v. Bennette, 517 F.3d 717,725 (4th Cir. 2008).
Ross, 136 S.Ct. at 1857, Jones v. Bock, 549 U.S. 199, 219
(2007). A court may not excuse a failure to exhaust. Ross, 136 S. Ct. at 1856, citing Miller v.
French, 530 U.S. 327, 337 (2000) (explaining "[t]he mandatory 'shall' ...
obligation impervious to judicial discretion").
normally creates an
The purpose of exhaustion is to: 1) allow a prison
to address complaints about the program it administers before being subjected to suit; 2) reduce
litigation to the extent complaints are satisfactorily resolved; and 3) prepare a useful record in the
event of litigation.
Jones, 549 U.S. at 219.
An inmate's failure to exhaust administrative
remedies is an affirmative defense; defendant bears the burden of proving that he had remedies
available to him of which he failed to take advantage. Jones, 549 U.S. at 211-12, 216; Moore,
517 F.3d at 725.
In Ross v. Blake, 136 S. Ct. at 1850, the Supreme Court of the United States identified
three kinds of circumstances
in which an administrative
remedy is unavailable.
administrative procedure is unavailable when (despite what regulations or guidance materials
may promise) it operates as a simple dead end-with
officers unable or consistently unwilling to
provide any relief to aggrieved inmates," Id. at 1859. Second, "an administrative scheme might
be so opaque that it becomes, practically speaking, incapable of use. In this situation, some
mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it." Id. The
third circumstance arises when "prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation."
In Maryland, filing a request for administrative remedy ("ARP") with the warden of the
prison is the first of three steps in the ARP process. See Code of Md. Regs. ("COMAR"), tit. 12
The ARP request must be filed within 30 days of the date on which the incident
occurred, or within 30 days of the date the inmate first gained knowledge of the incident or
injury giving rise to the complaint, whichever is later.
COMAR, tit. 12 S07.01.05A.
request is denied, a prisoner has 30 calendar days to file an appeal with the Commissioner of
Correction. COMAR, tit. 12 907.01.05C. If the appeal is denied, the prisoner has 30 days to file
a grievance with the Inmate Grievance Office. See Md. Corr. Servs., Code Ann. SSI0-206, 10210; COMAR, tit. 12 SS 07.01.03 and 07.01.05B.
Complaints are reviewed preliminarily by the Inmate Grievance Office ("I GO"). See Md.
Corr. Servs., Code Ann. SI0-207; COMAR, tit. 12 S07.01.06A. If a complaint is determined to
be "wholly lacking in merit on its face," the IGO may dismiss it without a hearing. Md. Corr.
Servs., Code Ann. g10-207(b)(1); see COMAR, tit. 12 S07.01.07B.
The order of dismissal
constitutes the final decision of the Secretary of DPSCS for purposes of judicial review.
Corr. Servs., Code Ann. S10-207(b )(2)(ii).
However, if a hearing is deemed necessary by the
IGO, the hearing is conducted by an administrative
law judge with the Maryland Office of
See Md. Cts. & Jud. Proc., Code Ann. S10-208( c); COMAR tit. 12
The conduct of such hearings is governed by statute. See Md. Corr. Servs., Code
Ann. S 10-208.
A decision of the administrative law judge denying all relief to the inmate is considered a
final agency determination.
However, a decision concluding that the inmate's complaint is
wholly or partly meritorious constitutes a recommendation to the Secretary of DPSCS, who must
make a final agency determination within fifteen days after receipt of the proposed decision of
the administrative law judge. See Md. Corr. Servs., Code Ann. SlO-209(b)-(c).
The final agency determination is subject to judicial review in Maryland State court, so
long as the claimant has exhausted his/her remedies. See Md. Corr. Servs., Code Ann. S10-210.
An inmate need not seek judicial review in State court in order to satisfy the PLRA's
administrative exhaustion requirement.
See, e.g., Pozo, 286 F.3d at 1024 ("[A] prisoner who
uses all administrative options that the state offers need not also pursue judicial review in state
asserts that plaintiff
did not follow all the steps required to exhaust
administrative remedies. ECF 14-1 at pp. 5 -7.
In his opposition response, plaintiff claims that on July 14, 2016, after he received
Fourth Circuit's decision, he was in the "IGO room" at NBCI for a video conference with his
public defender. ECF 17-1 at p. 2. He states that Mr. Durst, the IGO coordinator for NBCI, Sgt.
Zais, Officer Lambert and Officer Beeman were in the room.
!d. When plaintiff related his
concerns regarding the appellate decision in his case and the exhaustion issue, Sgt. Zais told him
that he could not file another ARP about the 2013 Ramadan issue because the issue had already
been resolved through the ARP process. Id. at p. 3. Plaintiff claims that when he stated that he
could have filed a new complaint with the IGO thirty days after the date his lawsuit was
dismissed by the Fourth Circuit, Zais and Durst responded that the IGO no longer had
jurisdiction over Warden Shearin because he no longer worked for the Department of Public
Safety and Correctional Services. Id. at p. 4. Plaintiff further states that he "took their concerns
to mean that I could proceed with my civil claim without having to start the administrative
remedy process anew." Id.
Plaintiff has failed to offer a valid reason for his failure to exhaust administrative
His interpretation of what was stated to him by correctional employees, neither of
whom is tasked with providing him with legal advice,2 is insufficient to find that administrative
remedies were unavailable as defined by the Supreme Court in Ross.
The appellate decision
issued in plaintiff s 2013 case makes clear that he filed his civil suit prematurely and refiling of
the underlying claim could only take place if plaintiff exhausted administrative
Plaintiff has not done so. As such, the issue regarding the steps plaintiff took in an effort to
exhaust administrative remedies regarding Ramadan is a matter of res judicata.
must be dismissed.
A separate order follows.
The court notes that plaintiff was appointed counsel for purposes of his appeal of the 2013 civil case.
The doctrine of res judicata precludes the assertion of a claim after a judgment on the merits in a prior suit
by the same parties on the same cause of action. See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th
Cir. 1991)(citing Harnett v. Billman, 800 F.2d 1308, 1312 (4th Cir. 1986).
J. Frederick Motz
United States District Judge
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