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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:
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
GREGORY
and
AGEE,
Circuit
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.
of
Lieutenant
his
Michael
42
U.S.C.
Ross
on
1983
the
claim
ground
that
against
Blake
Appellee
failed
to
Because
his
remedies
by
complying
with
an
internal
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).
Center.
Madigan
ordered
Blake
to
gather
his
the top of the stairs, Madigan reached out and grabbed Blakes
arm.
the
that
there
might
have
been
some
Ross got
preexisting
As he did
Blake had to
push against the railing with his elbow to keep himself from
falling down the stairs.
Ross
assured
Madigan
that
he
had
Blake
under
control
and
When they
reached the pod door, Madigan ordered Blake to stand against the
wall of the corridor.
with
the
corridor
officer
inside.
When
he
returned
he
was
J.A. 522-23.
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.
face again.
4
nearby
officer,
to
mace
Blake.
Woodard
refused.
Ross dropped
his knee onto Blakes 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
same
corrections
day,
Blake
officers
and
reported
provided
the
a
incident
written
to
senior
account.
The
Public
Safety
and
Correctional
Services
(Department)
report
against
confirmed
Blake
handcuffed.
by
that
striking
Madigan
him
in
had
the
used
excessive
face
while
he
force
was
Ross,
entities.
Madigan,
two
supervisors,
and
three
government
summary
judgment
on
February
4,
2010. 1
None
of
the
amended answer, which Blake became aware of for the first time
that afternoon when Ross filed his motion to amend.
The amended
2011.
giving
Blake
any
opportunity
to
object,
the
district
court
moved
to
strike
Rosss
filed
an
amended
exhaustion
on
the
complaint,
defense
and
Ross
reasserted
his
administrative
court
denied
judgment
to
Blakes
Ross
reconsideration,
Blakes
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
court
not
summary
motion
reinstated
joined
Rosss
for
Blake
On August 9,
II.
On appeal, Blake argues that 1) Ross waived his exhaustion
affirmative
defense
by
failing
to
assert
it
in
his
initial
waive
remedies
as
the
defense,
required
by
Blake
the
exhausted
PLRA
7
by
his
complying
administrative
with
the
IIU
investigation.
to
defense,
exhaust
Ross
administrative
bears
the
burden
Because an inmates
remedies
of
is
proving
an
affirmative
that
Blake
had
v.
Bock,
549
U.S.
199,
211-12,
216
(2007);
Moore
v.
is
42 U.S.C.
excused
from
the
requirement
available
available.
administrative
available
if
remedy
prisoner,
is
not
through
remedy
considered
no
is
because
previously
an
administrative
simply
fault
of
an
no
to
his
longer
However,
have
own,
been
was
The
Department
provides
inmates
with
number
of
management
Parole
recommendations
Commission
procedures
and
and
decisions,
decisions,
Maryland
disciplinary
mail.
Maryland
Division
of
Correction,
warden,
then
Inmate
denial
to
the
Commissioner
of
2010
WL
4781360,
addition
to
the
at
*3
(D.
Md.
Nov.
16,
2010)
(same).
In
ARP,
the
Department
administers
the
Id. 12.11.01.09(A).
Alternatively, an
Id. 12.11.01.09(E).
officers;
through
the
Blake
never
ARP.
Ross
filed
contends
an
administrative
that
the
ARP
was
Blake
argues that the investigation removed his grievance from the ARP
process.
detail the legal standard Ross must meet to prove his exhaustion
defense, and then apply that standard to Blakes situation.
i.
The Supreme Court has identified three primary purposes of
the PLRAs exhaustion requirement:
1) allowing a prison to
to
suit,
are
2)
reducing
satisfactorily
litigation
resolved,
and
to
the
3)
extent
improving
Court
has
the
requirement
quite
strictly
to
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
As
See
at
Giano
v.
Goord,
380
F.3d
670
(2d
Cir.
to
exhaust
available
remedies
was
justified
by
his
Id.
at 678.
Of
course,
in
reading
longstanding
administrative
law
justified
disciplinary
in
appeal
believing
that
procedurally
It therefore
his
complaints
exhausted
his
in
the
administrative
second,
disciplinary
whether
appeals
the
process
prisoners
exhausted
11
submissions
his
remedies
in
the
in
F.3d
37,
(alterations
43
and
(2d
Cir.
internal
2007)
quotation
Macias v. Zenk,
(emphasis
marks
in
omitted);
original)
see
also
By
Circuit
has
implemented
traditional
principles
of
attempt
procedures.
prison
from
to
comply
with
Meanwhile,
the
unnecessary
and
the
relevant
substantive
unexpected
prong
administrative
safeguards
litigation.
We
are
conducted
one-year
investigation
into
The
Blakes
As
the
dissent
notes,
post
at
26,
the
J.A. 375-
investigation
J.A. 329-33.
of
information
about
the
grievance
13
Handbook
contains
approximately
one
Handbook 30-31.
of
information
recommendations
and
Commission
procedures
decisions,
and
decisions,
Maryland
disciplinary
case
Parole
hearing
Id.
at
30.
Although
this
list
does
not
include
IIU.
addresses
Md.
when
Code
an
Regs.
employee
12.11.01.05(B).
involved
in
the
That
ARP
provision
process
must
14
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
Blakes
should
encounter
with
the
an
Ross
that
not
take
officers. 5
belief
that
the
IIUs
investigation
removed
his
at
the
summary
judgment
stage
we
must
draw
all
See
Pueschel,
and
Directives
577
F.3d
do
not
at
563.
The
contradict
Handbook,
Blakes
Regulations,
belief
that
he
had
senior
corrections
investigation. 8
officers,
Furthermore,
Ross
thereby
has
initiating
provided
no
an
IIU
practical
examples
of
grievance
an
inmate
during
or
reasonably
interpreted
procedures,
and
the
being
after
allowed
an
IIU
Marylands
IIU
to
file
an
ARP
investigation.
murky
investigation
inmate
into
his
or
IGO
Blake
grievance
complaint
17
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
prison
life,
then
he
administrative remedies.
must
first
exhaust
his
available
agree that Shaidon Blakes suit concerns prison life, Blake did
not
avail
himself
of
the
very
administrative
remedy
that
that
federal
Blake
court.
Litigation
may
proceed
Because
Reform
that
Acts
his
holding
(PLRA)
unexhausted
undermines
claim
the
mandatory
in
Prison
exhaustion
I.
Exhaustion is a vital prescription.
needs,
Congress
suits.
[has]
decided,
is
fewer
better
prisoner
Congress
compelling
v.
McCarty,
781
prisoner
to
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
omitted).
rules,
Cir.
2008)
prisoner
Moore
(citation
must
v.
and
proceed
See
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
must
seek
relief
for
institutionally
J.A. 405.
related
Every inmate
J.A. 406.
J.A.
discipline,
concern
and
inmate
classification,
withholding
of
mail.
parole,
inmate
J.A.
405-06.
J.A. 405.
imagine
plainer
provision
that
more
directly
applies
to
May
system
2007,
for
matters.
along
with
processing
later
oral
complaints
communication
regarding
on
the
institutional
spelling
out
those
procedures).
The
same
prisoner
J.A. 403.
An administrative remedy
J.A. 409.
exhaustion
requirement,
or
the
fact
that
he
might
have
accept an inmates ignorance of the law as an excuse for noncompliance in other contexts.
21
mistakenly
maintains
that
he
was
precluded
from
Department
of
Corrections
conducted
an
internal
Even so,
Blake somehow decided that the investigation and the ARP were
effectively
one
and
the
same.
He
never
hints
that
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
directives,
differently.
For
this
nothing
case
in
might
the
have
relevant
or
otherwise
--
suggests
that
an
internal
[T]he
unjustified
exhaustion.
prisons
speculations,
requirements,
define
the
not
the
boundaries
prisoners
of
proper
normal rules.
courts
exhaustion
agree
that
an
requirement
internal investigation.
inmate
simply
does
by
not
satisfy
participating
in
the
an
Thomas
v.
Woolum,
337
F.3d
720,
734
(6th
Cir.
2003),
recognize
internal
investigations
consistent purposes.
that
prisoner
serve
different
proceedings
and
not
and
entirely
Id.
42
U.S.C.
no
1997e(a).
The
internal
difference.
23
investigation
made
II.
Blakes failure to exhaust also cannot be overlooked merely
because he is said to have reasonably interpreted Marylands
murky inmate grievance procedures.
How could
matter
when
determining
whether
administrative remedies.
the
prisoner
exhausted
his
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. Appx
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 inmates merely subjective beliefs,
logical
or
procedures
otherwise,
are
in
determining
available.).
whether
Yet
administrative
the
reasonable-
And
second,
substantial
compliance
and
proper
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 PLRAs exhaustion requirement may not even be amenable
to any exceptions.
steps
that
the
agency
holds
out[]
and
do[]
so
properly.
That
rather
restrictive
definition
of
exhaustion
reasonable
mistake,
where
the
prisoner
has
seem
appropriate
Congressional
text.
where,
as
Congress
is
here,
we
vested
are
with
dealing
the
with
power
to
496,
501
(1982),
and
court
may
not
disregard
these
belief-focused
exceptions
should
be
avoided,
as
they
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
PLRAs
to
have
not
the
offers
engraft
doctrines
statutory
Certainly at
exceptions
of
that
administrative
exhaustion
requirement
to
administrative
the
PLRA
law).
exhaustion
Justice
requirement
Breyer
once
derived
suggested
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
Woodford
and
citing
several
26
other
Second
Circuit
All
that
aside,
Blake
does
not
meet
the
standards
that
majority
says
that
the
exception
will
apply
when
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.
did
not
fulfill
any
of
the
substantive
purposes
That
investigation
examines
employee
conduct,
It also is
And
It also reduc[es]
improv[es]
litigation
that
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
Department
of
corrections
of
Public
officer
Safety
and
did
it
internal
produce
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.
gathered
during
the
investigation.
Administratively
lead
to
disciplinary
proceedings
targeting
the
wayward
In fact,
the
internal
Maj. op.
at 12.
overstates
the
facts
to
say
that
perceived
problem.
McCollum
v.
Cal.
Dept
of
Corr.
&
332-33
(I
will
not
be
going
any
further
with
See
this
See
Jones, 549
v.
Zenk,
495
F.3d
37,
44
(2d
Cir.
2007)
did
Blake
satisfy
the
procedural
prong
of
the
Maj.
op. at 12.
involve
inmate
classification,
so
discipline,
Blakes
claim
parole,
was
not
mail,
or
explicitly
inmate
excluded
ordinary
grievance
process).
The
ARP
applied
to
all
acted
unreasonably
regulations otherwise.
in
purportedly
interpreting
the
in
and
his
the
view,
ARP
were
the
separate.
internal
He
explained
investigation
See J.A. 162-63.
made
then
it
But he
because
they
did
not
specifically
describe
how
an
about
an
entirely
separate
30
process,
the
obvious
inference
former.
is
that
the
latter
process
is
untethered
from
the
Now, jail
approach
imposes
corrections officials.
substantial
new
burden
on
state
To
the contrary, more than one court has held that prison officials
are not responsible for telling prisoners anything about the
available administrative remedies.
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 inmates subjective lack of
information about his administrative remedies does not excuse a
failure to exhaust.).
district
court
cases
also
do
not
render
Blakes
He
No. L101479, 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.
inmates
4,
an
complaint
administrative
under
the
decision
2008
that
directive);
Investigative
Unit.
J.A.
437.
Of
course,
the
short,
Blakes
reasonable-interpretation
failure
to
exhaust.
exception
The
does
district
not
court
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
did
not
include
the
containing
the
affirmative
defense.
Blake
did
not
33
IV.
For
these
many
courts judgment.
did not use it.
to
go
forward.
reasons,
we
should
affirm
the
district
respectfully
choice to do otherwise.
34
dissent
from
the
majoritys