                             UNPUBLISHED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Affirmed as modified by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.




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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

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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

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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

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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.




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