United States District Court, D. Maryland
Frederick Motz, United States District Judge.
response to the above-entitled civil rights complaint,
defendant moves to dismiss or for summary judgment. ECF 14.
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 plaintiffs motion
for appointment of counsel shall be denied.
Jean Germain is a prisoner committed to the custody of the
Department of Public Safety and Correctional Services and
incarcerated at North Branch Correctional Institution
("NBCI".. Plaintiff filed the instant complaint
following an appeal to the Fourth Circuit Court of Appeals in
Civil Action JFM-13-2267, which concerned the same claim.
See Germain v. Shearin, Civil Action JFM-13-2267 (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." Mat pp. 3-4.
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." ECF 1 at p. 5. He claims he suffered weight
loss, severe hunger pangs, lightheadedness, headaches, and
emotional 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.
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 Action JFM-13-2267 (D. Md.) at ECF 54. The appellate
court noted that exhaustion of administrative remedies is
mandatory under the Prisoner Litigation Reform Act (PLRA),
reviewed the procedures in place at NBCI for processing
administrative remedies, and concluded that:
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 complain.. 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
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.
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 exhaust administrative
remedies is "without prejudice to [Germain's]] right
to refile should exhaustion become complete."
Id. at 13.
instant complain,, plaintiff claims that despite not being
issued a receipt from the Commissioner 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 ("IGO").
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 plaintiffs grievances or by
dismissing them without a hearing on bogus grounds."
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:
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[men]] 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. Main,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 N.A.,534 U.S. 506, 508,
n.1 (2002); Neitzke v. Williams,490 U.S. 319,