Blake v. Ross, No. 13-7279 (4th Cir. 2015)
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Plaintiff appealed the district court's summary dismissal of his 42 U.S.C. 1983 claim against defendant on the ground that plaintiff failed to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e(a). Plaintiff's suit arose from allegations that prison officers used excessive force while transferring him to a different cell. The court reversed and remanded, holding that plaintiff reasonably believed that he had sufficiently exhausted his remedies by complying with an internal investigation.
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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 M.R.D.C.C.; GARY JAMES MADIGAN, OF CORRECTIONS; STATE OF MARYLAND; MAYNARD, Sec.; MICHAEL STOUFFER, Comm.; 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 Before TRAXLER, Judges. Chief Judge, Decided: and GREGORY and May 21, 2015 AGEE, Circuit 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 Lieutenant his Michael 42 U.S.C. Ross on § 1983 the claim ground that against Blake Appellee 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. 2009). Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 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. the Blake told Madigan to “[g]et the fuck off” him. impression that there might have been some Ross got preexisting tension between Blake and Madigan. Ross, still holding Blake in an escort grip, led Blake down the concrete stairs with Madigan following closely. so, Madigan suddenly shoved Blake from behind. As he did Blake had to push against the railing with his elbow to keep himself from falling down the stairs. Ross assured Madigan Blake told Madigan not to push him. 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. with the corridor He then stepped into the pod and spoke 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 corrections day, Blake officers and reported provided the a incident written to senior 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 against confirmed Blake handcuffed. by that striking Madigan him in had the used excessive face while he force was 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, entities. Madigan, two supervisors, and three government 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). 1 Less than a day later, without 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 ground that it had been waived. Blake filed an amended exhaustion on the While that motion was pending, complaint, exhaustion defense in his answer. Ross’s exhaustion defense. defense and Ross reasserted his Blake again moved to strike On January 9, 2012, Ross moved for summary judgment on the ground that Blake had failed to exhaust his administrative court denied judgment to Blake’s Ross reconsideration, Blake’s remedies. claim motion and in On May to strike Madigan. response against which (who 2012, and Blake to Madigan 10, had district granted filed the the a court not summary motion reinstated joined Ross’s motion), but refused to reinstate his claim against Ross. ultimately prevailed against Madigan at trial. for Blake 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 remedies as the defense, required by Blake the exhausted PLRA 7 by his complying administrative with the IIU 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. failure Pueschel, 577 F.3d at 563. to defense, exhaust Ross administrative bears the burden Because an inmate’s remedies of is proving an affirmative 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. § 1997e(a). inmate is 42 U.S.C. This requirement is one of “proper exhaustion”: not excused from the requirement available available. Woodford v. Ngo, 548 U.S. 81, 93 (2006). administrative available if a remedy prisoner, is not through remedy considered no prevented from availing himself of it.” 8 is because previously “an administrative simply fault of an no to his a longer However, have own, been was Moore, 517 F.3d at 725. 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 Parole recommendations Commission procedures and and decisions,” decisions,” “Maryland “disciplinary hearing procedures and decisions,” and “appeals of decisions to withhold mail.” Maryland Division of Correction, Handbook 30 (2007) (hereinafter “Handbook”). three-step process: the warden, then Inmate The ARP involves a the inmate files a request for remedy with 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, addition to the at *3 (D. Md. Nov. 16, 2010) (same). In ARP, the Internal Investigative Unit, or IIU. Department administers the 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.” § 12.11.01.05(A)(3). Md. Code Regs. 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). inmate may file a complaint directly. Alternatively, an 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 grievance officers; through the Blake never ARP. Ross filed contends an administrative that the ARP available to Blake despite his ongoing IIU investigation. was 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 complaints to suit,” are 2) “reducing satisfactorily litigation resolved,” and to the 3) extent “improving litigation that does occur by leading to the preparation of a useful record.” the Court has Jones, 549 U.S. at 219. interpreted require “proper exhaustion.” the To serve these ends, requirement quite strictly Woodford, 548 U.S. at 93. 10 to Still, the exhaustion requirement is not absolute. Moore, 517 F.3d at 725. concurrence in Woodford, established exceptions holding in Justice Breyer noted in his administrative law contains “well- exhaustion.” 548 U.S. 103-04 to (Breyer, J., concurring). Circuit’s As See at Justice Breyer pointed to the Second 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 nonexhaustion, the prisoner’s failure to comply with administrative procedural requirements may nevertheless have been justified. 380 F.3d at 676. failure to The court went on to find that the inmate’s 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. developed a two-pronged inquiry: was justified disciplinary in appeal believing first, whether “the prisoner that procedurally It therefore his complaints exhausted his in the administrative remedies because the prison’s remedial system was confusing,” and second, disciplinary “whether appeals the process prisoner’s exhausted 11 submissions his remedies in the in a substantive sense by affording corrections officials time and opportunity to address complaints internally.” 495 F.3d 37, (alterations 43 and (2d Cir. internal 2007) quotation Macias v. Zenk, (emphasis marks in omitted); original) 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 procedures. prison from to comply with Meanwhile, the unnecessary and the relevant substantive unexpected prong administrative safeguards litigation. We a 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. Department conducted a one-year investigation into The 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 77. As the dissent notes, post at 26, the J.A. 375- 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. 91, 299-300, 305, 307-11. See, e.g., J.A. 289- 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. sources of information process available to him: about the Blake had three formal administrative grievance 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 Handbook contains approximately about the ARP and the IGO. one The 2007 version of page Handbook 30-31. of information This page lists “types of complaints” for which the ARP is not available: management recommendations and Commission procedures decisions,” and decisions,” “Maryland “disciplinary “case Parole 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. addresses Md. when Code an Regs. employee § 12.11.01.05(B). involved 4 in the That ARP provision process must 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 investigation. mentions effect both until the ARP And complaint the processes after only is the IIU initiate directive cited by 185-003, which did DCD Blake’s should encounter with the an Ross that not take 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. Furthermore, at the See Jones, 549 U.S. at 211-12, 216. summary judgment stage we must draw all reasonable inferences in favor of Blake, the non-movant. See Pueschel, and Directives 577 F.3d do not at 563. The contradict Handbook, Blake’s Regulations, belief that he had exhausted his administrative remedies by reporting the incident to senior corrections investigation. 8 officers, Furthermore, Ross thereby has initiating provided no an IIU 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 grievance an inmate during or reasonably interpreted procedures, and the being after allowed an IIU Maryland’s IIU to file an ARP investigation. murky investigation inmate into his or IGO Blake grievance 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. L10-1479, 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 administrative remedies. must first exhaust his available 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”). holds that federal Blake court. Litigation may proceed Because Reform Despite that failure, the majority with that Act’s his holding (“PLRA”) unexhausted undermines claim the “mandatory” in Prison 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. needs, Congress suits.” [has] decided, is fewer “What this country and better Jones v. Bock, 549 U.S. 199, 203 (2007). prisoner Congress designed an “invigorated” exhaustion requirement to achieve that goal. one, Porter, 534 U.S. at 524. King compelling v. McCarty, 781 a prisoner to This requirement is a “strict” F.3d use 19 889, “all 893 (7th available Cir. 2015), remedies in accordance Bennette, internal with 517 the F.3d quotation applicable 717, 725 marks procedural (4th rules,” Cir. A omitted). 2008) prisoner Moore (citation must v. and 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 administrative statutes, suit. As processes regulations, Correctional Services in and the majority Maryland are Department directives. notes, of set the out Public According relevant in various Safety to one and such directive, DCD 185-002, inmates housed in Division of Correction facilities must seek relief for complaints through an ARP complaint. “institutionally J.A. 405. related” “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. 403. as J.A. All parties agree that those categories do not apply here, they discipline, concern and inmate classification, withholding of mail. parole, inmate 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.” 20 J.A. 405. One can hardly 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. in May system 2007, for matters.” along with processing J.A. 168, 170. He received the prisoner handbook later “oral complaints communication” regarding on “the institutional 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. the exhaustion “[An inmate]’s alleged ignorance of 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 noncompliance in other contexts. United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (equitable tolling). 21 Even so, the 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. himself. Blake did not initiate that investigation 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 officials actively misled him into this understanding. prison Instead, he came to his conclusion all on his own, having never read the directives explaining the ARP. Had Blake proceeded much read those See J.A. 162-63. directives, differently. For this nothing case in might the have 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 unjustified exhaustion.” prison’s speculations, requirements,” “define the Jones, 549 U.S. at 218. not the boundaries prisoner’s of proper 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 PLRA’s courts exhaustion agree that an requirement internal investigation. inmate simply does by not satisfy participating in the an 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). See Thomas v. Woolum, The Sixth Circuit did much the same. 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. 663 F.3d 899, 905 (7th Cir. 2011). impliedly recognize internal investigations consistent purposes. that prisoner serve See Pavey v. Conley, These cases and others grievance different proceedings and not and entirely 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. no § 1997e(a). The internal difference. 23 investigation made 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 administrative remedies. the prisoner exhausted his 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 procedures otherwise, are in determining ‘available.’”). whether Yet administrative the reasonable- interpretation approach makes such belief the lynchpin of the analysis. And second, substantial exhaustion are not the same. compliance and proper 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). 24 Yet the reasonable-exhaustion exception is substantial compliance by another name. The PLRA’s exhaustion requirement may not even be amenable to any exceptions. steps that the The Act requires a prisoner to “us[e] all 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 admittedly not used “all steps.” the prisoner has 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 Congressional as “Congress text. where, is here, we vested are with dealing the with 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). hoc, “belief”-focused And pragmatic reasons suggest that ad 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. questionable pedigree. call for op. at 10, but that administrative-law-style exhaustion, they derive from exhaustion” the onto have failed. level, attempts “traditional the PLRA’s to have not Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1652 (2003). Supreme-Court a “[A]lthough courts have read the PLRA to imported the corresponding exceptions.” the offers engraft doctrines statutory Certainly at exceptions of that administrative exhaustion requirement 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 administrative the PLRA law). exhaustion Justice requirement Breyer once derived suggested a from 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 interpretation only precedent exception, now supporting recognizes that a such reasonableexceptions 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 opinions doing the same). 26 other Second Circuit 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. Furthermore, believing the that he Maj. op. prisoner was at must following 10-11 have the (emphasis been proper omitted). “justified” procedures. in 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 not the merits of the inmate’s specific grievance. conduct, 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 preparation of a useful record.” The purposes internal for investigation several reasons. does by leading to the Id. at 219. here For 27 occur did one not thing, fulfill the these internal investigation James focused Madigan, on who the the actions corrections of Department of Public officer 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 internal produce a investigation peripheral bystander. references to Blake “being was Ross useful administrative report See largely escorted” largely J.A. by treats 287-400. consist of Ross. record, See, Ross Indeed, passing as as the mentions e.g., the J.A. a few that 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 the internal investigation provided “notice of Blake’s complaint.” Maj. op. at 12. overstates the facts to say that 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. Rehab., 647 F.3d 870, 876 (9th Cir. 2011). Dep’t of Corr. & 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. J.A. 332-33 (“I will not be going situation outside this institution.”). “notice” would not be enough. any further with See this In any event, affording “[N]otice to those who might later be sued . . . has not been thought to be one of the leading purposes of the exhaustion requirement.” U.S. at 219. much. See Jones, 549 Here again, even the Second Circuit recognizes as 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.” 29 Maj. op. at 12. It hardly bears repeating that the regulations were clear and Blake had no basis to misconstrue them. not involve inmate classification, so from the ARP. discipline, Blake’s claim parole, was not This case did mail, or explicitly inmate excluded 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 regulations otherwise. in purportedly interpreting the Indeed, at least toward the beginning of this case, even Blake seemed to understand that the internal investigation that, in and his the view, ARP were the separate. internal unnecessary to resort to the ARP. He explained investigation See J.A. 162-63. made then it 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 30 process, the obvious inference former. is that the latter process is untethered from the 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 corrections officials. a substantial new burden on state 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 supposed misunderstanding “reasonable.” do not render Blake’s 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) dismissed (citing the “Ex. inmate’s 4,” an complaint administrative under the decision 2008 that 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 excuse short, Blake’s a reasonable-interpretation failure to exhaust. exception The does district not 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. exhaustion is an affirmative defense, Anderson Because PLRA 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 exhaustion defense in his initial answer. did not include the 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). before the amendment was made. The time to object was Having failed to do so, Blake was required to face up to Ross’ defense on its merits. 33 IV. For these many court’s judgment. did not use it. to go forward. reasons, we should affirm the district Maryland’s ARP was available to Blake and he We should not now allow his unexhausted claim I respectfully choice to do otherwise. 34 dissent from the majority’s
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