Blake v. Ross

• Decision Date: 21 May 2015
• Docket Number: No. 13–7279.,13–7279.
• Citation: Blake v. Ross, 787 F.3d 693 (4th Cir. 2015)
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

787 F.3d 693

Shaidon BLAKE, Plaintiff–Appellant

v. Michael ROSS, Lt., Defendant–AppelleeandThe Department of Corrections ; State of Maryland; M.R.D.C.C.; Gary Maynard, Sec.; Michael Stouffer, Comm.; James Madigan, Defendants.

No. 13–7279.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2015.

Decided: May 21, 2015.

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.

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Opinion

Reversed and remanded by published opinion. Judge GREGORY wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge AGEE wrote a dissenting opinion.

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.

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.

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 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 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 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, 127 S.Ct. 910, 166 L.Ed.2d 798 (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, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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.

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 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. §...