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Germain v. Shearin

United States District Court, D. Maryland

August 30, 2017



          J. Frederick Motz, United States District Judge.

         In 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.


         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 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.

         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." 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.

         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 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 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.[1]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.

         In the 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." Id.

         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:

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, ...

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