Jean Germain v. Bobby Shearin , 653 F. App'x 231 ( 2016 )

UNPUBLISHED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Affirmed as modified by unpublished opinion.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.
Unpublished opinions are not binding precedent in this circuit.
2
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 Maryland, Department of Public Safety and
Correctional Services and housed at the North Branch
Correctional Institute (“NBCI”). Germain asserts claims against
Bobby P. Shearin, the warden at NBCI during all pertinent
events. Specifically, Germain’s allegations 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. Glynn v. EDO Corp., 710 F.3d 209,
213 (4th Cir. 2013). 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.” Id. This court can
affirm the district court’s grant of summary judgment on
alternative grounds. McMahan v. Int’l Ass’n of Bridge,
3
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.” 42 U.S.C. § 1997e(a) (emphasis
added). Proper exhaustion 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.’” Ross, slip.
op. at 1. The Supreme Court recently provided three scenarios
where administrative remedies “on the books” are considered
“unavailable”: (1) where the procedure “operates as a simple
4
dead end” because 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 way of “machination, misrepresentation, or
intimidation.” 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
(2007).
To determine proper exhaustion, we look to the
administrative requirements at NBCI. 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 in Division of
Correction’s regulations before final step). The methods for
satisfying these steps can be found in the Inmate Handbook, the
5
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. Minton, 113 F.3d at
801; Md. Code Regs. § 12.07.01.02.D. If the inmate’s request
is denied, he or she may appeal to the Commissioner of
Correction (the “Commissioner”). Minton, 113 F.3d at 801. 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. J.A. 20. In response, Germain
conceded that he only proceeded through two of the three
required steps. See J.A. 29. 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. Id. On July 30, 2013, Germain submitted his
responses. J.A. 26. 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
6
from the Commissioner. 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.” J.A.
29. Germain states that a grievance filed without these
documents will not be considered by the IGO and 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 185-002 concerns “Administrative Remedy Policy” at
NBCI. 2 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.
1Given 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.
2DCD 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/index-
DOC185.shtml.
7
Part C memorializes the date on which the Commissioner received
the appeal. Id. Other limitation periods run from the Part C
date. For 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 conservative estimate for this date is
August 9, 2013. Germain signed his complaint on July 30, 2013,
a day before his re-submitted request was denied. J.A. 9-10,
26. On August 5, 2013, his complaint was docketed by the
Clerk’s Office in the District of Maryland. J.A. 5.
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);
8
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. 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 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
9
his claims, dismissal is mandatory. However, dismissal is
without prejudice to his right to refile should exhaustion
become complete. Accordingly, the ruling of the district court
is
AFFIRMED AS MODIFIED.
10