Shaidon Blake v. Micheal Ross, Sgt. , 787 F.3d 693 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7279
SHAIDON BLAKE,
Plaintiff - Appellant,
v.
MICHAEL ROSS, Lt.,
Defendant – Appellee,
and
THE DEPARTMENT OF CORRECTIONS; STATE OF MARYLAND;
M.R.D.C.C.; GARY MAYNARD, Sec.; MICHAEL STOUFFER, Comm.;
JAMES MADIGAN,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:09-cv-02367-AW)
Argued: January 27, 2015 Decided: May 21, 2015
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Reversed and remanded by published opinion. Judge Gregory wrote
the majority opinion, in which Chief Judge Traxler joined.
Judge Agee wrote a dissenting opinion.
ARGUED: Scott Matthew Noveck, MAYER BROWN LLP, Washington,
D.C., for Appellant. Sarah W. Rice, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellee. ON
BRIEF: Reginald R. Goeke, Scott A. Claffee, MAYER BROWN LLP,
Washington, D.C., for Appellant. Douglas F. Gansler, Attorney
General of Maryland, Dorianne Meloy, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee.
2
GREGORY, Circuit Judge:
Inmate Shaidon Blake appeals the district court’s summary
dismissal of his 42 U.S.C. § 1983 claim against Appellee
Lieutenant Michael Ross on the ground that Blake failed to
exhaust his administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Because
we hold that Blake reasonably believed that he had sufficiently
exhausted his remedies by complying with an internal
investigation, we reverse the judgment of the district court and
remand for further proceedings.
I.
A.
Since we are reviewing a grant of summary judgment, the
following account frames the facts in the light most favorable
to Blake, the non-movant, and draws all reasonable inferences in
his favor. Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir.
2009). On June 21, 2007, Ross and Lieutenant James Madigan
approached Blake’s cell at the Maryland Reception Diagnostic and
Classification Center. Madigan ordered Blake to gather his
possessions so that he could be moved to another cell block.
When Blake asked why he was being moved, Madigan called him a
“bad ass” and a “tough guy” and accused him of trying to take
over the housing unit.
3
Ross entered the cell and handcuffed Blake’s hands behind
his back. When Ross escorted Blake out of the cell and towards
the top of the stairs, Madigan reached out and grabbed Blake’s
arm. Blake told Madigan to “[g]et the fuck off” him. Ross got
the impression that there might have been some preexisting
tension between Blake and Madigan.
Ross, still holding Blake in an escort grip, led Blake down
the concrete stairs with Madigan following closely. As he did
so, Madigan suddenly shoved Blake from behind. Blake had to
push against the railing with his elbow to keep himself from
falling down the stairs. Blake told Madigan not to push him.
Ross assured Madigan that he had Blake under control and
continued walking down the stairs.
At the bottom of the stairs, Madigan shoved Blake again.
Blake told Madigan, “Don’t fucking push me no more.” When they
reached the pod door, Madigan ordered Blake to stand against the
wall of the corridor. He then stepped into the pod and spoke
with the corridor officer inside. When he returned he was
“agitated,” and he began “yelling and screaming and pointing in
[Blake’s] face.” J.A. 522-23. With Ross still holding Blake
against the wall, Madigan wrapped a key ring around his fingers
and then punched Blake at least four times in the face in quick
succession. Madigan paused briefly, then punched Blake in the
face again.
4
While Ross continued to hold Blake, Madigan ordered Latia
Woodard, a nearby officer, to mace Blake. Woodard refused.
Ross told Woodard to radio a “Signal 13” - a code to summon
other officers for assistance. He and Madigan then took Blake
to the ground by lifting him up and dropping him. Ross dropped
his knee onto Blake’s chest, and he and Madigan restrained Blake
until other officers arrived.
The responding officers took Blake to the medical unit;
Blake, surrounded by guards and fearful of being attacked again,
declined treatment even though he was in pain. He was later
diagnosed with nerve damage.
That same day, Blake reported the incident to senior
corrections officers and provided a written account. The
Internal Investigative Unit (“IIU”) of the Maryland Department
of Public Safety and Correctional Services (“Department”)
undertook a year-long investigation and issued a formal report.
The report confirmed that Madigan had used excessive force
against Blake by striking him in the face while he was
handcuffed. The report did not assign any fault to Blake and
did not recommend any disciplinary action against him.
B.
Blake filed a pro se § 1983 complaint on September 8, 2009
against Ross, Madigan, two supervisors, and three government
entities. The district court dismissed sua sponte the claims
5
against the government entities. Ross and the two supervisors
filed an answer on November 19, 2009, and moved to dismiss or
for summary judgment on February 4, 2010. 1 None of the
defendants asserted an exhaustion defense in either the answer
or the motion. The district court granted summary judgment as
to the supervisors but denied it as to Ross, finding that Blake
had presented genuine issues of material fact regarding whether
Ross committed a constitutional violation. The court ordered
that counsel be appointed to represent Blake.
On August 2, 2011 - nearly two years after filing Ross’s
answer to Blake’s complaint – Ross’s counsel contacted counsel
for Blake and Madigan and requested consent to file an amended
answer. Blake’s counsel agreed on the condition that Ross’s
counsel consent to the filing of an amended complaint at a later
date. The parties did not discuss the specific contents of the
amended answer, which Blake became aware of for the first time
that afternoon when Ross filed his motion to amend. The amended
answer included a new affirmative defense alleging that Blake
had failed to exhaust his administrative remedies as required by
the PLRA, 42 U.S.C. § 1997e(a). Less than a day later, without
1
Blake did not successfully serve Madigan until January 26,
2011.
6
giving Blake any opportunity to object, the district court
granted the motion to amend.
Blake moved to strike Ross’s exhaustion defense on the
ground that it had been waived. While that motion was pending,
Blake filed an amended complaint, and Ross reasserted his
exhaustion defense in his answer. Blake again moved to strike
Ross’s exhaustion defense. On January 9, 2012, Ross moved for
summary judgment on the ground that Blake had failed to exhaust
his administrative remedies. On May 10, 2012, the district
court denied Blake’s motion to strike and granted summary
judgment to Ross and Madigan. Blake filed a motion for
reconsideration, in response to which the court reinstated
Blake’s claim against Madigan (who had not joined Ross’s
motion), but refused to reinstate his claim against Ross. Blake
ultimately prevailed against Madigan at trial. On August 9,
2013, Blake timely appealed the dismissal of his claim against
Ross.
II.
On appeal, Blake argues that 1) Ross waived his exhaustion
affirmative defense by failing to assert it in his initial
answer or motion for summary judgment, and 2) even if Ross did
not waive the defense, Blake exhausted his administrative
remedies as required by the PLRA by complying with the IIU
7
investigation. Because we find that Ross’s exhaustion defense
is without merit, we do not reach the issue of whether he waived
the defense.
A.
We review de novo the district court’s grant of summary
judgment, viewing all facts in the light most favorable to the
non-movant and drawing all reasonable inferences therefrom in
his favor. Pueschel, 577 F.3d at 563. Because an inmate’s
failure to exhaust administrative remedies is an affirmative
defense, Ross bears the burden of proving that Blake had
remedies available to him of which he failed to take advantage.
Jones v. Bock, 549 U.S. 199, 211-12, 216 (2007); Moore v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
B.
The PLRA requires an inmate to exhaust “such administrative
remedies as are available” before filing an action. 42 U.S.C.
§ 1997e(a). This requirement is one of “proper exhaustion”: an
inmate is not excused from the requirement simply because a
previously available administrative remedy is no longer
available. Woodford v. Ngo, 548 U.S. 81, 93 (2006). However,
“an administrative remedy is not considered to have been
available if a prisoner, through no fault of his own, was
prevented from availing himself of it.” Moore, 517 F.3d at 725.
8
The Department provides inmates with a number of
administrative avenues for addressing complaints and problems.
At issue here is the interaction between two of those processes:
the Administrative Remedy Procedure (“ARP”), 2 and the IIU.
The ARP is available for “all types of complaints” except
“case management recommendations and decisions,” “Maryland
Parole Commission procedures and decisions,” “disciplinary
hearing procedures and decisions,” and “appeals of decisions to
withhold mail.” Maryland Division of Correction, Inmate
Handbook 30 (2007) (hereinafter “Handbook”). The ARP involves a
three-step process: the inmate files a request for remedy with
the warden, then appeals a denial to the Commissioner of
Corrections, and finally appeals any subsequent denial to the
Inmate Grievance Office (“IGO”). See id. at 30-31; Md. Code
Regs. § 12.07.01.05(B); Chase v. Peay, 286 F. Supp. 2d 523, 529
(D. Md. 2003) (describing the process); Thomas v. Middleton, No.
AW-10-1478, 2010 WL 4781360, at *3 (D. Md. Nov. 16, 2010)
(same).
In addition to the ARP, the Department administers the
Internal Investigative Unit, or IIU. The IIU is responsible for
investigating, among other things, “allegation[s] of excessive
2
We also briefly discuss the Inmate Grievance Office, which
hears appeals from the ARP and rules in the first instance on
other grievances, supra.
9
force by an employee or nonagency employee.” Md. Code Regs.
§ 12.11.01.05(A)(3). Any employee with knowledge of an alleged
violation within the scope of the IIU’s investigative authority
must file a complaint. Id. § 12.11.01.09(A). Alternatively, an
inmate may file a complaint directly. Id. § 12.11.01.09(E).
Blake’s encounter with Madigan and Ross was investigated by
the IIU after Blake immediately reported the incident to senior
corrections officers; Blake never filed an administrative
grievance through the ARP. Ross contends that the ARP was
available to Blake despite his ongoing IIU investigation. Blake
argues that the investigation removed his grievance from the ARP
process. To resolve this issue, we first examine in greater
detail the legal standard Ross must meet to prove his exhaustion
defense, and then apply that standard to Blake’s situation.
i.
The Supreme Court has identified three primary purposes of
the PLRA’s exhaustion requirement: 1) “allowing a prison to
address complaints about the program it administers before being
subjected to suit,” 2) “reducing litigation to the extent
complaints are satisfactorily resolved,” and 3) “improving
litigation that does occur by leading to the preparation of a
useful record.” Jones, 549 U.S. at 219. To serve these ends,
the Court has interpreted the requirement quite strictly to
require “proper exhaustion.” Woodford, 548 U.S. at 93.
10
Still, the exhaustion requirement is not absolute. See
Moore, 517 F.3d at 725. As Justice Breyer noted in his
concurrence in Woodford, administrative law contains “well-
established exceptions to exhaustion.” 548 U.S. at 103-04(Breyer, J., concurring). Justice Breyer pointed to the Second
Circuit’s holding in Giano v. Goord, 380 F.3d 670 (2d Cir.
2004), which applied these well-settled exceptions to the PLRA:
[T]here are certain “special circumstances” in which,
though administrative remedies may have been available
and though the government may not have been estopped
from asserting the affirmative defense of non-
exhaustion, the prisoner’s failure to comply with
administrative procedural requirements may
nevertheless have been justified.
380 F.3d at 676. The court went on to find that the inmate’s
failure to exhaust available remedies “was justified by his
reasonable belief” that no further remedies were available. Id.
at 678.
Of course, in reading longstanding administrative law
exceptions into the PLRA’s exhaustion requirement, the Second
Circuit was mindful of the purposes of the PLRA. It therefore
developed a two-pronged inquiry: first, whether “the prisoner
was justified in believing that his complaints in the
disciplinary appeal procedurally exhausted his administrative
remedies because the prison’s remedial system was confusing,”
and second, “whether the prisoner’s submissions in the
disciplinary appeals process exhausted his remedies in a
11
substantive sense by affording corrections officials time and
opportunity to address complaints internally.” Macias v. Zenk,
495 F.3d 37, 43 (2d Cir. 2007) (emphasis in original)
(alterations and internal quotation marks omitted); see also
Johnson v. Testman, 380 F.3d 691, 696-97 (2d Cir. 2004). By
requiring both a procedural and a substantive component, the
Second Circuit has implemented traditional principles of
administrative law in a manner consistent with the purposes of
the PLRA’s exhaustion requirement. The procedural prong ensures
that an uncounseled inmate attempting to navigate the grievance
system will not be penalized for making a reasonable, albeit
flawed, attempt to comply with the relevant administrative
procedures. Meanwhile, the substantive prong safeguards a
prison from unnecessary and unexpected litigation. We are
persuaded that this formulation strikes the appropriate balance
between statutory purpose and our administrative jurisprudence.
We therefore adopt the Second Circuit’s exception to the PLRA’s
exhaustion requirement as articulated in Macias and Giano.
ii.
Clearly Blake’s IIU investigation satisfied the substantive
component of the exception to exhaustion discussed above. The
Department conducted a one-year investigation into Blake’s
violent encounter with Madigan and Ross, at the conclusion of
which it issued Madigan an Unsatisfactory Report of Service and
12
relieved him of his duties as a corrections officer. 3 J.A. 375-
77. As the dissent notes, post at 26, the investigation
“examine[d] employee conduct,” which forms the core of Blake’s
claim under § 1983. Furthermore, the dissent’s fears that the
Department did not have an adequate chance to address potential
complaints against Ross, as opposed to Madigan, are unfounded.
Blake did not file a targeted complaint against Madigan, but
rather reported the incident as a whole, naming both Madigan and
Ross in his account. J.A. 329-33. Investigating officers were
well aware of Ross’s involvement, and they collected testimony
regarding his role in the incident from a number of sources,
including a statement from Ross himself. See, e.g., J.A. 289-
91, 299-300, 305, 307-11. The Department certainly had notice
of Blake’s complaint, as well as an opportunity to develop an
extensive record and address the issue internally.
The question remains whether Blake’s interpretation of the
relevant regulations was reasonable. Blake had three formal
sources of information about the administrative grievance
process available to him: the Handbook, the Maryland Code of
Regulations (“the Regulations”), and the Maryland Department of
3
Rather than facing dismissal, Madigan chose to resign.
J.A. 566.
13
Correction Directives (“the Directives”). 4 The 2007 version of
the Handbook contains approximately one page of information
about the ARP and the IGO. Handbook 30-31. This page lists
“types of complaints” for which the ARP is not available: “case
management recommendations and decisions,” “Maryland Parole
Commission procedures and decisions,” “disciplinary hearing
procedures and decisions,” and “appeals of decisions to withhold
mail.” Id. at 30. Although this list does not include
complaints undergoing internal investigation, it is reasonable
to read it as a list of content-based rather than procedural
exemptions. Indeed, the Handbook makes no mention of the IIU or
the internal investigation process whatsoever; there is no basis
for an inmate to conclude that the ARP and IIU processes would
be permitted to proceed concurrently.
The Regulations and the Directives are similarly ambiguous.
Only one provision of the Regulations mentions both the ARP and
the IIU. Md. Code Regs. § 12.11.01.05(B). That provision
addresses when an employee involved in the ARP process must
4
Blake testified that he did not read all of the relevant
directives. See J.A. 162-63. We agree with the dissent that an
inmate’s ignorance of available procedures is not sufficient to
excuse a failure to exhaust remedies. That is why, for the
purposes of the exception we adopt today, we assume that the
inmate possessed all available relevant information when
determining whether he held an objectively reasonable belief
that he had exhausted all available avenues for relief.
14
report an allegation to the IIU, but it says nothing about the
disposition of the ARP complaint should the IIU initiate an
investigation. And the only directive cited by Ross that
mentions both processes is DCD 185-003, which did not take
effect until after Blake’s encounter with the officers. 5
Therefore, Ross has proffered no evidence that would contradict
Blake’s belief that the IIU’s investigation removed his
complaint from the typical ARP process. 6
5
DCD 185-003, which went into effect on August 27, 2008,
makes clear that an ARP complaint will be dismissed for
procedural reasons “when it has been determined that the basis
of the complaint is the same basis of an investigation under the
authority of the Internal Investigative Unit (IIU),” and allows
an inmate to appeal that dismissal. Ross argues that this
directive proves that Blake could have filed an ARP complaint at
the time of the incident. Blake counters that the directive is
the first contemplation of a coexistence between the ARP and IIU
investigations. Regardless, DCD 185-003 did not exist when the
IIU began investigating Blake’s complaint, and therefore it is
at best tangentially related to whether his belief that he could
not pursue an ARP claim was reasonable.
6
Ross also contends that Blake could have filed a complaint
with the IGO in the first instance. The Handbook states that
“[t]he IGO reviews grievances and complaints of inmates against
the Division of Correction . . . after the inmate has exhausted
institutional complaint procedures, such as the Administrative
Remedy Procedure.” Handbook at 30 (emphasis added). And the
Regulations provide that an inmate must file a grievance with
the IGO within 30 days of the date that the “[s]ituation or
occurrence that is the subject of the grievance took place,”
unless the grievance is based on an appeal from the ARP or a
disciplinary proceeding. Md. Code Regs. §§ 12.07.01.05(A)-(C).
Clearly Blake could not appeal from an ARP or disciplinary
proceeding; the only complaint he lodged was a report to
corrections officers that initiated an IIU investigation. Given
that the IIU investigation of Blake’s complaint lasted for a
(Continued)
15
Ross argues that the lack of information in the Handbook,
Regulations, and Directives should be read to mean Blake had no
reason to believe he could not file an ARP request once the IIU
had initiated its investigation. 7 But construing the ambiguities
against Blake improperly relieves Ross of his burden of proving
his affirmative defense. See Jones, 549 U.S. at 211-12, 216.
Furthermore, at the summary judgment stage we must draw all
reasonable inferences in favor of Blake, the non-movant. See
Pueschel, 577 F.3d at 563. The Handbook, Regulations, and
Directives do not contradict Blake’s belief that he had
exhausted his administrative remedies by reporting the incident
to senior corrections officers, thereby initiating an IIU
investigation. 8 Furthermore, Ross has provided no practical
year and was therefore not “exhausted” within 30 days of his
encounter, it was certainly reasonable for Blake to believe he
could not file a grievance with the IGO.
7
Alternatively, Ross urges us to affirm the district court
on the ground that Ross prevails on the merits. As Blake notes,
however, it is typically “more appropriate to allow the district
court to consider [alternative grounds for affirmance] in the
first instance on remand.” Q Int’l Courier, Inc. v. Smoak, 441
F.3d 214, 220 n.3 (4th Cir. 2006); see also McBurney v.
Cuccinelli, 616 F.3d 393, 404 (4th Cir. 2010) (declining to
address merits of § 1983 claim in the first instance).
Therefore, we remand to afford the district court the
opportunity to address the merits of Blake’s claims.
8
Blake is not alone in his understanding of the interaction
between the ARP and the IIU. In Giano, the Second Circuit found
it relevant that “a learned federal district court judge [had]
(Continued)
16
examples of an inmate being allowed to file an ARP or IGO
grievance during or after an IIU investigation. Blake
reasonably interpreted Maryland’s murky inmate grievance
procedures, and the IIU investigation into his complaint
provided the Department with ample notice and opportunity to
address internally the issues raised. We therefore hold that
not long ago endorsed an interpretation of DOCS regulations
nearly identical to Giano’s.” 380 F.3d at 679. Here, at least
three district court judges have found that an internal
investigation removes an inmate’s complaint from the ARP
process. See Thomas v. Bell, No. AW-08-2156, 2010 WL 2779308,
at *4 & n.2 (D. Md. July 7, 2010); Williams v. Shearin, No. L-
10-1479, 2010 WL 5137820, at *2 n.2 (D. Md. Dec. 10, 2010);
Bogues v. McAlpine, No. CCB-11-463, 2011 WL 5974634, at *4 (D.
Md. Nov. 28, 2011).
Ross argues that these cases are inapposite because they
relied on DCD 185-003, which requires dismissal of an ARP
complaint if it shares its basis with an IIU investigation. But
at least one of these cases was filed before that directive
issued. Thomas, 2010 WL 2779308, at *1 (noting that Thomas
filed his complaint on August 18, 2008); see also DCD 185-003
(issued and effective on August 27, 2008). Of the remaining two
opinions, only one refers (opaquely) to a dismissal under DCD
185-003. See Bogues, 2011 WL 5974634, at *4 (citing an exhibit
to the officer’s motion to dismiss). The second such opinion
reasons that, although the inmate did not file an ARP complaint,
the fact that “prison officials were aware of his concerns,
convened an internal investigation, and regularly met to review
[the inmate’s] classification and security status” was
sufficient to satisfy the exhaustion requirement. Williams,
2010 WL 5137820, at *2 n.2. Therefore, even if Ross is correct
that Blake could have filed a complaint through the ARP while
his IIU investigation was pending, the grievance system is
confusing enough that at least two learned judges have reached
the opposite conclusion.
17
the district court erred in granting summary judgment to Ross on
the basis of his exhaustion defense.
III.
For the foregoing reasons, the judgment of the district
court is reversed, and the case is remanded for further
proceedings.
REVERSED AND REMANDED
18
AGEE, Circuit Judge, dissenting:
If a prisoner wishes to bring a suit touching on any aspect
of “prison life,” then he must first exhaust his available
administrative remedies. Porter v. Nussle, 534 U.S. 516, 532
(2002); see also 42 U.S.C. § 1997e(a). Although all parties
agree that Shaidon Blake’s suit concerns prison life, Blake did
not avail himself of the very administrative remedy that
Maryland designed for this sort of claim -- the Administrative
Remedy Procedure (“ARP”). Despite that failure, the majority
holds that Blake may proceed with his unexhausted claim in
federal court. Because that holding undermines the Prison
Litigation Reform Act’s (“PLRA”) “mandatory” exhaustion
requirement, Porter, 534 U.S. at 524, I respectfully dissent,
preferring instead to affirm the judgment of the district court
dismissing Blake’s claim.
I.
Exhaustion is a vital prescription. “What this country
needs, Congress [has] decided, is fewer and better prisoner
suits.” Jones v. Bock, 549 U.S. 199, 203 (2007). Congress
designed an “invigorated” exhaustion requirement to achieve that
goal. Porter, 534 U.S. at 524. This requirement is a “strict”
one, King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015),
compelling a prisoner to use “all available remedies in
19
accordance with the applicable procedural rules,” Moore v.
Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (citation and
internal quotation marks omitted). A prisoner must proceed
through the administrative process even if, for instance, he
seeks some relief that the process has no power to afford. See
Booth v. Churner, 532 U.S. 731, 740-41 (2001).
Blake did not exhaust his available administrative remedies
before filing suit. As the majority notes, the relevant
administrative processes in Maryland are set out in various
statutes, regulations, and Department of Public Safety and
Correctional Services directives. According to one such
directive, DCD 185-002, inmates housed in Division of Correction
facilities must seek relief for “institutionally related”
complaints through an ARP complaint. J.A. 405. “Every inmate”
may submit a request for an administrative remedy. J.A. 406.
Consistent with the directive, the prisoner handbook explains
that the process applies to “all types of complaints” that might
arise within the prisons, save four categories of claims. J.A.
403. All parties agree that those categories do not apply here,
as they concern inmate classification, parole, inmate
discipline, and withholding of mail. J.A. 405-06.
Furthermore, DCD 185-002 separately and specifically instructs
prisoners to use the ARP to “seek relief . . . for issues that
include . . . [u]se of force.” J.A. 405. One can hardly
20
imagine a plainer provision that more directly applies to
Blake’s present claim.
Blake must have been aware of these remedies -- he never
even hints that he was not. He received the prisoner handbook
in May 2007, along with later “oral communication” on “the
system for processing complaints regarding institutional
matters.” J.A. 168, 170. See Wright v. Langford, 562 F. App’x
769, 776 (11th Cir. 2014) (holding that it was reasonable to
presume prisoner’s awareness of procedures where he received a
handbook spelling out those procedures). The same prisoner
handbook indicates that full descriptions of the processes were
available in the library. J.A. 403. An administrative remedy
coordinator was also available to help. J.A. 409.
That is not to say that it would matter whether Blake was
ignorant of the procedures. “[An inmate]’s alleged ignorance of
the exhaustion requirement, or the fact that he might have
misconstrued the language in the handbook, does not excuse his
failure to exhaust.” Gonzalez v. Crawford, 419 F. App’x 522,
523 (5th Cir. 2011); accord Brock v. Kenton Cnty., Ky., 93 F.
App’x 793, 797-98 (6th Cir. 2004). After all, we usually do not
accept an inmate’s “ignorance of the law” as an excuse for non-
compliance in other contexts. United States v. Sosa, 364 F.3d
507, 512 (4th Cir. 2004) (equitable tolling). Even so, the
21
point warrants emphasis because it gives Blake even less reason
to complain of any unfairness here.
Blake mistakenly maintains that he was precluded from
seeking relief through the ARP simply because a separate unit of
the Department of Corrections conducted an internal
investigation into another officer involved in the incident that
led to this suit. Blake did not initiate that investigation
himself. See J.A. 287. Nor did he believe that he was entitled
to learn the investigation’s results. See J.A. 161. Even so,
Blake somehow decided that the investigation and the ARP were
effectively one and the same. He never hints that prison
officials actively misled him into this understanding. Instead,
he came to his conclusion all on his own, having never read the
directives explaining the ARP. See J.A. 162-63.
Had Blake read those directives, this case might have
proceeded much differently. For nothing in the relevant
guidance -- in the prisoner handbook, directives, regulations,
statutes, or otherwise -- suggests that an internal
investigation bars or replaces an inmate complaint through the
ARP. “[T]he prison’s requirements,” not the prisoner’s
unjustified speculations, “define the boundaries of proper
exhaustion.” Jones, 549 U.S. at 218. Because the relevant
regulations never mention internal investigations, Blake should
not have assumed that such an investigation changed any of the
22
normal rules. Even more so because Maryland instructed inmates
to send most “all” of their complaints through the ARP.
Other courts agree that an inmate does not satisfy the
PLRA’s exhaustion requirement simply by participating in an
internal investigation. See, e.g., Hubbs v. Cnty. of Suffolk,
No. 11–CV–6353(JS)(WDW), 2014 WL 2573393, at *5 (E.D.N.Y. June
9, 2014). The Ninth Circuit relied on the “literal command of
the PLRA” in doing so. Panaro v. City of N. Las Vegas, 432 F.3d
949, 953 (9th Cir. 2005). The Sixth Circuit did much the same.
See Thomas v. Woolum, 337 F.3d 720, 734 (6th Cir. 2003),
abrogated on other grounds by Woodford v. Ngo, 58 U.S. 81, 87
(2007). So too did the Seventh Circuit. See Pavey v. Conley,
663 F.3d 899, 905 (7th Cir. 2011). These cases and others
impliedly recognize that prisoner grievance proceedings and
internal investigations serve different and not entirely
consistent purposes. Perhaps just as importantly, the cases
acknowledge that prisoners are not “permitted to pick and choose
how to present their concerns to prison officials.” Id.In sum, Blake failed to exhaust “available” “administrative
remedies” by failing to file a complaint through the ARP. 42
U.S.C. § 1997e(a). The internal investigation made no
difference.
23
II.
Blake’s failure to exhaust also cannot be overlooked merely
because he is said to have “reasonably interpreted Maryland’s
murky inmate grievance procedures.” Maj. op. at 16. How could
Blake have reasonably interpreted procedures that were available
to him but that he never bothered to read?
More to the point, this reasonable-interpretation exception
to the PLRA’s exhaustion requirement rests on two unsupportable
ideas. First, the prisoner’s subjective beliefs largely do not
matter when determining whether the prisoner exhausted his
administrative remedies. See Napier v. Laurel Cnty., Ky., 636
F.3d 218, 221 n.2 (6th Cir. 2011); Thomas v. Parker, 609 F.3d
1114, 1119 (10th Cir. 2010); Twitty v. McCoskey, 226 F. App’x
594, 596 (7th Cir. 2007); Lyon v. Vande Krol, 305 F.3d 806, 809
(8th Cir. 2002) (en banc) (“[Section] 1997e(a) does not permit
the court to consider an inmate’s merely subjective beliefs,
logical or otherwise, in determining whether administrative
procedures are ‘available.’”). Yet the reasonable-
interpretation approach makes such belief the lynchpin of the
analysis. And second, substantial compliance and proper
exhaustion are not the same. See Thomas, 609 F.3d at 1118;
Lewis v. Washington, 300 F.3d 829, 834 (7th Cir. 2002); Wright
v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). Yet the
24
reasonable-exhaustion exception is substantial compliance by
another name.
The PLRA’s exhaustion requirement may not even be amenable
to any exceptions. The Act requires a prisoner to “us[e] all
steps that the agency holds out[] and do[] so properly.”
Woodford, 548 U.S. at 90 (citation and internal quotation marks
omitted). That rather restrictive definition of exhaustion
seems inconsistent with ad hoc exceptions like one premised on a
prisoner’s “reasonable” mistake, where the prisoner has
admittedly not used “all steps.” Judge-made exceptions may be
permissible when interpreting judge-made exhaustion doctrines,
see, e.g., Reiter v. Cooper, 507 U.S. 258, 269 (1993), but they
hardly seem appropriate where, as here, we are dealing with
Congressional text. “Congress is vested with the power to
prescribe the basic procedural scheme under which claims may be
heard in federal courts,” Patsy v. Bd. of Regents of Fla., 457
U.S. 496, 501 (1982), and a “court may not disregard these
requirements at its discretion,” Hallstrom v. Tillamook Cnty.,
493 U.S. 20, 31 (1989). And pragmatic reasons suggest that ad
hoc, “belief”-focused exceptions should be avoided, as they
force courts to undertake the “time-consuming task” of probing
“prisoners’ knowledge levels of the grievance process at given
points in time.” Graham v. Cnty. of Gloucester, Va., 668 F.
Supp. 2d 734, 740 (E.D. Va. 2009).
25
A reasonable-interpretation exception might trace back to
administrative law, maj. op. at 10, but that offers a
questionable pedigree. “[A]lthough courts have read the PLRA to
call for administrative-law-style exhaustion, they have not
imported the corresponding exceptions.” Margo Schlanger, Inmate
Litigation, 116 Harv. L. Rev. 1555, 1652 (2003). Certainly at
the Supreme-Court level, attempts to engraft exceptions that
derive from the “traditional doctrines of administrative
exhaustion” onto the PLRA’s statutory exhaustion requirement
have failed. Booth, 532 U.S. at 741 n.6; see also Woodford, 548
U.S. at 91 n.2 (rejecting the dissent’s suggestion to apply an
exception to the PLRA exhaustion requirement derived from
administrative law). Justice Breyer once suggested a link
between administrative law exceptions and the PLRA, see maj. op.
at 10, but no majority of justices ever sanctioned that view.
Even the Second Circuit, which may have at one time provided
perhaps the only precedent supporting a reasonable-
interpretation exception, now recognizes that such exceptions
may no longer be viable in light of more recent Supreme Court
decisions. See Amador v. Andrews, 655 F.3d 89, 102-03 (2d Cir.
2011) (questioning whether a reasonable-interpretation exception
survives Woodford and citing several other Second Circuit
opinions doing the same).
26
All that aside, Blake does not meet the standards that
evidently apply to this new reasonable-interpretation exception.
The majority says that the exception will apply when a
prisoner’s submissions serve the same “substantive” purposes as
proper exhaustion. Maj. op. at 10-11 (emphasis omitted).
Furthermore, the prisoner must have been “justified” in
believing that he was following the proper procedures. Id.Here, neither proves to be the case.
Blake did not fulfill any of the substantive purposes
served by proper exhaustion by involving himself in an internal
investigation. That investigation examines employee conduct,
not the merits of the inmate’s specific grievance. It also is
not a means of dispute resolution or settlement, but instead a
simple exercise of the institution’s role as an employer. And
the inmate plays a limited role in the investigation, providing
only a factual statement. In contrast, exhaustion is intended
to “allow[] prison officials an opportunity to resolve disputes
concerning the exercise of their responsibilities before being
haled into court.” Jones, 549 U.S. at 204. It also “reduc[es]
litigation to the extent complaints are satisfactorily resolved,
and improv[es] litigation that does occur by leading to the
preparation of a useful record.” Id. at 219.
The internal investigation here did not fulfill these
purposes for several reasons. For one thing, the internal
27
investigation focused on the actions of corrections officer
James Madigan, who the Department of Public Safety and
Correctional Services identified as the only relevant “suspect.”
J.A. 287. It largely did not examine the actions of the only
remaining defendant in this appeal, Michael Ross, and did not
offer any opportunity to “resolve” a dispute about Ross’ acts.
Nor did it produce a useful administrative record, as the
internal investigation report largely treats Ross as a
peripheral bystander. See J.A. 287-400. Indeed, the few
references to Ross largely consist of passing mentions that
Blake was “being escorted” by Ross. See, e.g., J.A. 289.
Moreover, other evidence that would have been useful in this
suit, like a contemporaneous medical examination of Blake, was
not gathered during the investigation. Administratively
settling Blake’s claims was also out of the question, as the
internal investigation did not offer direct relief to an inmate.
See Pavey, 663 F.3d at 905 (“An internal-affairs investigation
may lead to disciplinary proceedings targeting the wayward
employee but ordinarily does not offer a remedy to the prisoner
who was on the receiving end of the employee’s malfeasance.”).
And, at bottom, it should not be forgotten that Blake failed to
file a “targeted complaint,” maj. op. at 12, because he failed
to file any complaint. He cannot claim credit for “report[ing]
the incident,” id., as another corrections officer -- Captain
28
James Vincent -- did that. See J.A. 157-58, 287, 291. In fact,
at one point, Blake actually “request[ed] that no investigation
be conducted . . . and that the matter be considered CLOSED.”
J.A. 398.
It overstates the facts to say that the internal
investigation provided “notice of Blake’s complaint.” Maj. op.
at 12. The account that Blake provided as part of the internal
investigation focused on Madigan, not Ross. See J.A. 329-33.
Thus, Blake did not provide relevant notice of the “source of
the perceived problem.” McCollum v. Cal. Dep’t of Corr. &
Rehab., 647 F.3d 870, 876 (9th Cir. 2011). And prison officials
had no notice that Blake would file a suit premised on anything
Ross did, as Blake disclaimed any intent to sue anyone. See
J.A. 332-33 (“I will not be going any further with this
situation outside this institution.”). In any event, affording
“notice” would not be enough. “[N]otice to those who might
later be sued . . . has not been thought to be one of the
leading purposes of the exhaustion requirement.” Jones, 549
U.S. at 219. Here again, even the Second Circuit recognizes as
much. See Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007)
(“[A]fter Woodford, notice alone is insufficient[.]”).
Nor did Blake satisfy the “procedural prong” of the
exception, which apparently requires the inmate to rely on a
“reasonable” “interpretation of the relevant regulations.” Maj.
29
op. at 12. It hardly bears repeating that the regulations were
clear and Blake had no basis to misconstrue them. This case did
not involve inmate discipline, parole, mail, or inmate
classification, so Blake’s claim was not explicitly excluded
from the ARP. Contrast with Giano v. Goord, 380 F.3d 670, 679
(2d Cir. 2004) (applying the reasonable-interpretation exception
where the inmate mistakenly but reasonably believed that his
claim fell into a category of claims explicitly excluded from
the ordinary grievance process). The ARP applied to all
inmates, to all claims of use of force, at all relevant times.
Blake acted unreasonably in purportedly interpreting the
regulations otherwise. Indeed, at least toward the beginning of
this case, even Blake seemed to understand that the internal
investigation and the ARP were separate. He explained then
that, in his view, the internal investigation made it
unnecessary to resort to the ARP. See J.A. 162-63. But he
never once suggested that the investigation precluded him from
filing a complaint.
Furthermore, the relevant procedures were not “ambiguous”
merely because they did not specifically describe how an
internal investigation might affect a complaint lodged through
the ARP. See maj. op. at 13. When a policy like the ARP
ostensibly reaches “all” complaints, and that same policy says
nothing about an entirely separate process, the obvious
30
inference is that the latter process is untethered from the
former. But the majority puts aside this clear assumption in
favor of an ambiguous approach to prison regulation. Now, jail
officials must anticipate every potential misunderstanding that
an inmate might have about a prison’s administrative remedies
and then foreclose every imaginable misunderstanding in writing.
That approach imposes a substantial new burden on state
corrections officials. It also finds no support in the law. To
the contrary, more than one court has held that prison officials
are not responsible for telling prisoners anything about the
available administrative remedies. See, e.g., Yousef v. Reno,
254 F.3d 1214, 1221 (10th Cir. 2001); cf. Johnson v. Dist. of
Columbia, 869 F. Supp. 2d 34, 41 (D.D.C. 2012) (“[T]he majority
of courts . . . have held that an inmate’s subjective lack of
information about his administrative remedies does not excuse a
failure to exhaust.”). In addition, prison administrators might
now feel compelled to adopt overly complicated administrative
procedures out of a justifiable fear that any regulatory silence
will be used against them. That could in turn produce even more
confusion among prisoners.
Prior district court cases also do not render Blake’s
supposed misunderstanding “reasonable.” Maj. op. at 15 n.8.
Certainly Blake did not rely on these opinions directly. He
could not have, as the opinions do not interpret the policies
31
that applied to Blake’s present claim. Rather, all of those
cases were looking to a new department directive that went into
effect on August 27, 2008, long after the time when Blake needed
to file his administrative complaint. See Williams v. Shearin,
No. L–10–1479, 2010 WL 5137820, at *2 & n.2 (D. Md. Dec. 10,
2010) (addressing events arising in December 2009); Bogues v.
McAlpine, No. CCB-11-463, 2011 WL 5974634, at *4 (D. Md. Nov.
28, 2011) (citing “Ex. 4,” an administrative decision that
dismissed the inmate’s complaint under the 2008 directive);
Thomas v. Bell, No. AW–08–2156, 2010 WL 2779308, at *4 n.2 (D.
Md. July 7, 2010) (citing an exhibit in another case that proves
to be an administrative decision dismissing a complaint under
the 2008 policy). The 2008 directive provides that a complaint
submitted through the ARP must be dismissed when “the basis of
the complaint is the same basis of an investigation under the
Internal Investigative Unit.” J.A. 437. Of course, the
procedure before us here says no such thing, so these district
court cases are irrelevant.
In short, a reasonable-interpretation exception does not
excuse Blake’s failure to exhaust. The district court
appropriately declined to apply that kind of an exception here.
32
III.
One last matter may be easily resolved: Ross did not waive
his exhaustion defense by waiting to raise it. Because PLRA
exhaustion is an affirmative defense, Anderson v. XYZ Corr.
Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005), it may
be waived by a defendant who fails to timely assert it, see,
e.g., Ga. Pac. Consumer Prods., LP v. Von Drehle Corp., 710 F.3d
527, 533 (4th Cir. 2013). Here, Ross did not include the
exhaustion defense in his initial answer. But he did seek and
obtain consent from Blake (through counsel) to file an amended
answer containing the affirmative defense. Blake did not
condition his consent in any relevant way or even ask to review
the proposed answer before it was filed. He cannot now complain
about untimeliness when he blindly approved the untimely filing.
See Corwin v. Marney, Orton Inv., 843 F.2d 194, 199 (5th Cir.
1988); cf. Mooney v. City of N.Y., 219 F.3d 123, 127 n.2 (2d
Cir. 2000) (holding that the plaintiff’s implied consent to an
amended answer excused the defendant’s initial failure to raise
an affirmative defense in its answer). The time to object was
before the amendment was made. Having failed to do so, Blake
was required to face up to Ross’ defense on its merits.
33
IV.
For these many reasons, we should affirm the district
court’s judgment. Maryland’s ARP was available to Blake and he
did not use it. We should not now allow his unexhausted claim
to go forward. I respectfully dissent from the majority’s
choice to do otherwise.
34