Shaidon Blake v. Micheal Ross, Sgt.

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