United States District Court, D. Maryland
THEODORE D. CHUANG UNITED STATES DISTRICT JUDGE
Jean Germain, presently confined at North Branch Correctional
Institution ("NBCI") in Cumberland, Maryland, filed
a civil rights complaint pursuant to 42 U.S.C. 9 1983
asserting that in 2013, prison officials failed to provide
him with adequate food consistent with the timing and
requirements of fasting during Ramadan, in violation of his
right under the First Amendment to the United States
Constitution to free exercise of religion, his right under
the Eighth Amendment to be free from cruel and unusual
punishment, and the Religious Land Use and Institutionalized
Persons Act ("RLUIPA",, 42 U.S.C.
§ 2000cc-200ccc-5 (2012). Now pending
is a Motion for Summary Judgment filed by Defendant Warden
Bobby P. Shearin ("the Warden".. Germain opposes
the motion and moves for appointment of counsel. Having
reviewed the submitted materials, the Court finds that no
hearing is necessary. See D. Md. Local R. 105.6. For
the reasons set forth below, the Wardenss Motion for Summary
Judgment will be GRANTED, and Germain's Motion for
Appointment of Counsel will be DISMISSED AS MOOT.
the second case in which Germain has asserted the same or
similar claims. His first case, filed in 2013, was dismissed
without prejudice in 2016 by the United States Court of
Appeals for the Fourth Circuit based on that court's
determination that Germain had failed to exhaust
.administraiive remedies. Germain v. Shearin, 653
F.App'x 231, 234-35 (4th Cir. 2016) (Germain
I')(affirming as modified the district court's
order granting summary judgment for defendants).
second case, filed in July 2016, Germain filed a verified
Complaint in which he asserted that he had filed an
administrative remedy procedure grievance ("ARP")
that was dismissed and that he appealed that decision to the
Commissioner of Correction. Then, although he did not receive
a receipt for the filing of his appeal, he nevertheless filed
a further appeal to the Inmate Grievance Office
("IGO"). Germain stated that the IGO
"consistently denies plaintiff relief by, either,
ignoring plaintiffs grievances or by dismissing without a
hearing on bogus grounds." Compl.
¶ 7, ECF No. .. In
response to this Complaint, Warden Shearin filed a Motion to
Dismiss, or in the Alternative, Motion for Summary Judgment,
in which he argued, in part, that Germain had still failed to
exhaust his administrative remedies. The Court (Motz, J.),
construing the Wardenss motion as a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6), granted
the motion after finding that Germain had failed to exhaust
administrative remedies. Germain appealed that dismissal to
the Fourth Circuit, which vacated the dismissal and remanded
the case. Germain v. Shearin, 725 F.App'x 225,
227 (4th Cir. 2019)(Germain IF). The Fourth Circuit
held that because the district court had treated the motion
as a Motion to Dismiss, it was required to credit
Germain's assertion in his verified Complaint that he had
completed all three steps of the ARP process. Id. at
227. The court noted that its ruling did "not eliminate
the possibility that Germain's claim that he exhausted
administrative remedies could ... be defeated in a properly
filed motion for summary judgment." Id. at 227
n.2. Upon remand of the case to this Court, the Warden filed
a Motion for Summary Judgment in which he again asserts that
Germain failed to exhaust administrative remedies.
record establishes, and the parties do not dispute, that on
July 13, 2013, Germain submitted ARP No. NBCI-1870113, in
which he complained about the denial of meals during Ramadan.
That ARP was returned to Germain on July 19, 2013, with the
stamped notation "Dismissed for procedural reasons:
Pending Resubmission per DCD 185-002VL.L.9. Additional
information is needed to investigate your request. Please
resubmit by 7-31-13 and include the following
information." Mot. Summ. J. Ex. 2 at 4, ECF No. 37-3.
Below the stamp are the handwritten questions, "Are you
properly receiving your Ramadan meals? Do you have the option
to accept a lunch meal? Whos[e] decision is it to fast?
Provide documentation in regards to how [remainder
illegible]." Id. On July 31, 2013, Germain
supplemented the ARP by answering that he was not properly
receiving Ramadan meals, that he had no option to accept a
lunch meal, and that it was his decision to fast. As to
documentation, Germain simply stated that the Eighth
Amendment and RLUIPA "are my documentation. Go read
them." Mat 3. Germain's ARP was then dismissed, with
the stamped notation, "Dismissed for procedural reasons
Final per DCD 185-003.VI.N.2. Failed to resubmit the request
in accordance with the coordinator's
to the Warden, at that point Germain abandoned the ARP. In
support of that assertion, the Warden provides a declaration
from a records custodian who asserts that there is no record
of Germain filing an appeal of ARP No. NBCI-1870133 with the
Commissioner of Correction. The Warden also provides the
declaration of Samiyah Hassan, an administrative officer for
the IGO, stating that the IGO has no record of any appeal of
ARP No. NBCI-1870113 or any other complaint or grievance
relating to inadequate Ramadan meals at NBCI in 2013. Hassan
further asserts that Germain filed six unrelated appeals with
the IGO during 2013.
opposing the Motion, Germain, has submitted an affidavit in
which he asserts that on August 4, 2013, he mailed his appeal
of the ARP to the Commissioner of Correction by first-class
mail, but that he never received the "Part-C"
receipt from the Commissioner acknowledging receipt of the
appeal or any response to his appeal from the Commissioner of
Correction. In his declaration, Germain does not assert that
he filed a grievance or appeal with the IGO.
Motion for Summary Judgment, the Warden asserts that the
record establishes that Germain did not exhaust all
administrative remedies, specifically the established process
for appealing ARPs. In his memorandum in opposition to the
Motion ("Opposition"), Germain argues that this
Court cannot simply reject his representations that he filed
an appeal with the Commissioner of Correction. Germain also
asserts that in Germain I, the Fourth Circuit found
that Germain sent an appeal to the Commissioner of Correction
on August 4, 2013, such that the Warden is collaterally
estopped from arguing otherwise in this Motion.
Federal Rule of Civil Procedure 56, the Court grants summary
judgment if the moving party demonstrates that there is no
genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). In assessing the motion, the Court
views the facts in the light most favorable to the nonmoving
party, "with all justifiable inferences" drawn in
its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). The Court may rely only on facts supported
in the record, not simply assertions in the pleadings.
Bouchat v. BaIt. Ravens Football Club,
Inc., 346 F.3d 514, 522 (4th Cir. 2003). A fact is
"material" if it "might affect the outcome of
the suit under the governing law." Anderson,
477 U.S. at 248. A dispute of material fact is only
"genuine" if sufficient evidence favoring the
nonmoving party exists for the trier of fact to return a
verdict for that party. Mat 248-49.
Germain is self-represented, his submissions are liberally
construed. See Erickson, 551 U.S. at 94.
Nevertheles,, the court must also abide by the
"affirmative obligation of the trial judge to prevent
factually unsupported claims and defenses from proceeding to
trial." Bouchat, 346 F.3d at 526.
Exhaustion of ...