                                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
