reform act the prisoner exhaust available administrative remedies that exception if accepted would if this were a congress's intent in adopting the prison litigation reform act and requiring exhaustion within a state of remedy in the first circuit state where this exception now applies district court turned out charged with examining prison procedures to see how murky they are they are dispensing with the requirement of exhaustion at all if there's been an internal investigation can i just ask you to talk about the procedures could you explain to me what they are certainly on and i'd like to begin with you make grievance commission because i'm sorry office formerly the commission which is the primary administrative remedy investigating looking at the issue and making a recommendation or ruling we don't have the paperwork cases in petitioners lodging or all cases involving now quite a number of materials and we can talk about the materials that you flogged but now you know both parties have launched materials and nobody has come up with a case in which the a l p has adjudicated a complaint when there was  appeal rights are on the back and the directors and the ham book all advise you make that's only the first stage of the process and in maryland proper exhaustion there's always an appeal to the commissioner and then to file complaint with you make grievance office which was a quasi adjudicatory hearing in every one of these cases and all one need do is look at the decisions in petitioners lodging you'll see these where are you investigation cases and all of these inmates had a hearing on the merits and some of them got substantial amounts of money so there is an available remedy in maryland for work prisoners who are sort of by guards where there's an internal investigation and th you appeared the office appears actually to have a rubber stamp i mean it's the same stamp on all these things and it says the smith strip procedural reasons this issue is being investigated by you since case show be investigated by you no further action shall be taken under the a a r p that's on a rubber stamp yes your honor and the procedure there is the same in any other use of force case and that is that is the first level decision that is appealable to the commissioner and then once those two stages within the prison are exhausted the internal remedy has been exhausted and the case can be submitted to the inmates grievance commission which is the court of appeals in maryland has stated is the primary administrative remedy we talk this case on the view which was the view that the office represented to us at the time that the a a r p was the proper place to go to receive a remedy not the proper place to go to receive a rubberstamp saying you're come to the wrong place but the proper place to go to receive a remedy even when there was an iou invest brutality cases if you're not intending to confuse prisoners if you're not intending to make this process totally opaque why do you do it that way because there's there we go to if you haven't if you have that's more confusing than this process where they go to a r p and they can't get anything they do because they proceed up the up the process they properly exhaust all of the examples that they've produced in their response lodging they have four inmates who did not properly exhaust the one who did mr glad i don't know i'm sorry  the argument to the record that's before the court i mean factual issues like this are something they could deal with in the district court and flesh those out before the court of appeals and now as far as i understand we're the first court this law that's looked at all the record material i mean extra record materials right yes you know how do we deal with that i mean you have again both of you are guilty of what i think is a serious a serious question what's your proposal for dealing with the fact that so far as we've seen so far the case is made the case might well turn on these lodgings if people are going to look at well you know we would welcome a remained from this court decide the issue in front of  simply didn't have these materials in front of this and it completely changes the nature of the case where you're going to be the district court right we found that the remedy is primary there was no respondent he never tried to use any of these procedures he disclaimed any intention to do you think that's all i see is almost dismissing it would be based on a judgment about what these extra record materials show and if they don't show what your adversary suggest i don't know why that would be an appropriate course to take with respect to your position on the other hand if they do maybe it would be i don't again it's i think surprising and again i'm not criticizing just you i'm criticizing both of you that we have these that an enormous amount of work has produced all this information that wasn't there before but i would like to know what you do if you were me that is to say we took this case because we thought that it raises a question of whether the circuit can create an exception to the exhaustion requirement that to my knowledge so far is not the traditional exception and that's why i thought we took now we discover having taken it this new issue that wasn't player we thought the question was can you create an exception to the requirement that they have to take a  could either go into this other issue where we could send it back to prolong yes we simply could grant just dismiss it as improvidently granted so maybe it's an unfair question to ask but the question is there a special kind of exception to the rule that you have to take into it you have to follow i think administrative procedures if this is a case where there was no argument was that when i went to the internal affairs and that serves the same purpose i don't have to exhaust and it doesn't serve the same purpose all compare the criminalistic geisha reported j one eighty five with the  ministry of law decisions that result of a civil claims you investigate doesn't produce an administrator's decision on a civil claim it doesn't give an opportunity to settle a civil claim and serves a completely different purpose and the effect it's been there it's totally contrary to the purpose of the prison to say that when i read the fourth circuit decision there are lines in the fourth circuit decision that seem to be deciding this on the burden of proof they're saying ross meaning you have offered no evidence that would contradict blake schoolie that the i i use infestation removed his complaint from the typical a a r p exhausted his original new structure of remedies by removing the incident to senior corrections officers thereby initiating and i you investigate that that's at the same page so i'm not sure what the fourth church it was doing with availability and so if i'm not sure what do i do with respect to justice briar's question and justice kennedy's question which that so it would certainly be appropriate it seems to me to remain and it's the fourth circuit for the fourth circuit sort out any availability issues that have been newly raised but that the question presented to be decided because of the effect that it have on the administration of the because she was not brought up in the district court directors a set of directives especially geared to inmates that are not in the record because this issue did not come up in the district court there is additional information available to show that this is an available mammie again not in the record because if she was not brought up by mr blake in the district court so we would strongly urge the court that if it has issues about availability it would be most appropriate to remain and let this be sorted out on  obviously not having known that this issue was going to come up you can present the evidence the burden is on the mr blake to show you meets an exception he did not meet that burden in the district court thank you thank you asking the court to do two things here today we think they're both straightforward and then you can vacate and remain and to address these more case specific arguments that have come up in the brief and so first for ask you to answer the question presented the means what it says it does not have any on written exceptions blake doesn't even dispute the point second we're asking this court to reject the part of blake's argument in part two of his brief which we think is fairly encompassed within the  procedures become unavailable and the prisoner can jump to federal court as soon as he could reasonably but mistakenly think that he was done with the grievance process a reasonable mistake standard is just another way of saying that you only need to exhaust plain procedures that used to be the rule congress deliberately eliminated it when it acted the p r a the rule now is that you need to work exhaust all of billable remedies and that's critical to making the prisons not the federal courts the primary place for resolving disputes about prison life  confusing that that they're no longer available is this court said in booth available just as it's ordinary dictionary meaning of capable of being used for a purpose and so we think if there are so confusing that they can't be used if no reasonable person can use them then we'll keep saying the reason that you know as a noble i would say consistent with how we always talk about this well you know and i guess you know a reasonable prisoner would not understand that well at i think there's a big difference between a reasonable mistake standard which is what the court of appeals held it held that you made a reasonable mistake and blake is trying to repackage that as a loss on a bill i understand that that's different right and so and that's the thing that we have trouble with and and so that there are two big differences between the reasonable mistake standard and availability standard which is the correct statutory standard the first is just the degree of uncertainty if you have a body of regulations it doesn't take that much to say that reasonable minds could disagree about some aspect of the procedure it is quite another thing to say that they are so confusing that they can't even be used what words should we use the statute uses the word exhaust the word exhausted in ministry of law words most frequently found has a huge meeting with exceptions built up over the years one such exception is for a procedural rule that is quote comes from a b s corpus law not firmly established and regularly follow up and quote oh yeah i guess that's the way to put the exception to decide that one does the right exhausted pick up it's administrative law meaning that's a big question about not regular followed is that that's better handled in a situation so it would further in this court's case law says that when somebody has exhausted but has made some kind of a procedural misstep and the question is whether they should suffer a procedural default that th question there is as this court said and what for whether it's a critical procedural requirement and we think that the natural analog is what you're talking about from habeas corpus law that you would be asking whether it's an adequate independence the ground similar so that the inquiry here is different just saying that it's just so confusing that it's not available and so we think that the correct standard is the one to set in booth not capable of use for a purpose the way we articulated it in in our brief we think is correct if you want to give some guidance it's that no reasonable person or can use it but you don't need to to get that far down in the weeds to reject his argument that a reasonable mistake is enough so as i say in these there's there's two big differences between a reasonable mistake standard in ours the first i was saying just the degree of ambiguity the second is that it's myopic it overlooks all the things a prison system can do to make the system capable of being used even when it's a little confusing so if i could just give an example of how this works in the federal system so when a federal system when somebody arrives in a prison they're given an aunt there's an orientation they're given a handbook if they have questions there's somebody in each person each person who is available to answer questions provide assistance and then if you just file something and you make some kind of procedural mistake they can do one of two things the prison can i just just accept it and overlook the mistake or we can do is tell him what he did wrong and give him a reasonable a reasonable time to correct it and those are all things that a person can do to make it system just perfectly capable of being used even if there might be some reasonable ambiguity in the record and it seems to me that there are three kinds of of an availability and i'm wondering if you agree with each of the three one where the prison says you can get your remedy over here and then it turns out anything about this case now the second is what you were saying it's like if it's just so confusing that reasonable person can't use it and that's your standard right right and the third is some of these cases a rise in the context where the state is deliberately trying to interfere with or trick the end mate or something like that and you would count that as unavailable to young like a sort of threat hypothetical that kind of threat or just deception or something like that we think that as we said in our brief we think that's fairly easily dealt with under availability you could have a case where maybe a stop or principles come in but i think or virtually all cases availability is the appropriate focus and it's going to take over that's the way this has been working in the lower courts i mean because availability is the statutory exception there is a lower court case law on this and so i think the proper way for this court to delve into these issues is in some case where it's probably presented on  the question here it is squarely presented the district court here held squarely that he could have filed a grievance the court of appeals here to assume that that was right and just so that it didn't matter because there was an unwritten exception to the p r a reversed that in his effort t place for the court to begin is what the term available means in the statutory context we submit that were before you get to that the fourth circuit seems to assume that there was a procedure that was available and it held  that this was excused here even though it was available well do you defend that argument you know i would disagree i don't think the court of appeals thought that there was something that was available and it certainly did not think the state had met its burden of showing that the four circuit did adopt a legal rule has been discussed as that there could be implicit exceptions to the exhaustion requirement that was my question is that correct do you defend that we think that's a correct statement yes your honor we do think that that is a correct understanding of implicit exceptions that exist to exhaustion requirements that said we think the starting place here should be the meaning of the playing time available that exists in the statute and if we're correct about what the term available could those still even if it thinks that the court the court of appeals was wrong about that still recognize that the additional argument what the term available means in this context that we're correct about and that for multiple reasons the system that maryland has in place doesn't me any conceivable understanding of what available would be so i think the court could certainly do that we would disagree with this mission that the court of appeals is wrong but we certainly think the starting place here is what available means and that as applied to this case in given what we now know as how the maryland has has explained it structured its system it's certainly not one that would qualify and if we don't we just did it what we now know you have any help for me with my concern that none of this is in the record in this case none of it was before the court of appeals none of it was before the district court what should i do about that yes i have to risk principle responses to that first as the material i just read from the court of appeals made quite clear the court of appeals recognize d that the state had failed to identify any examples where any primary in these circumstances was available our principal argument throughout the district court and the court of appeals might do after we got past the way of argument or first i must waiver our second on the this was that one and i you investigation was underway there was no air p process whatsoever our consistent argument was the state had failed to meet its burden in showing that that was in fact wrong we made that argument to the court of appeals which i think it w i'm not so much talking about waiver i'm talking about evidentiary record you may have made that argument but you did not submit any of this material is a record if it had been presented to the district court they go through a normal process your honor you know move for the mission and this is exhibit a only you authenticate somebody comes into it and you have discovery and that i mean i don't know that there aren't one hundred meet other cases out there that make the exact opposite point or make your point and it just seems to me that if the case is going to well it seems to me to present a real serious problem of how we should consider the logic well first i still think it does only support our burden argument and we still would think arbor an argument sufficient but additionally in the papers to this court maryland has consistently said that the i you and the air p process were entirely distinct at page five of their reply brief in support of friday for example they explained that argument saying that the two thousand and eight directive codified an existing practice they said that that was plainly wrong they said that in the district court in the court of appeals right what yes your honor but what we did in the watching was we identified in part briefs that the maryland attorney general's office received the office responsible for litigating these cases in maryland federal court briefs that they filed that were made materially different representations on these critical questions that's at lodgings and is there any reason that could have been done before the district court before the court of appeals and included in the record before this court well your honor i think these materials because they are briefs of the court that the state of maryland submitted in these cases are things that are properly considered by this court as legal documents i think the court frequently takes considers briefs that parties have filed in other filings particular cases you are you most of these documents were submitted by the state of maryland as attachments to their briefs that they filed in federal court all of these documents that we have for the vast majority were submitted as but by mt as attachments there breeze a few were submitted by p is in fact available in these circumstances we still think they've never shown their burden to demonstrate it's available but why should this issue of availability be decided by this court as opposed to the district court or the court of appeals on i certainly think that could be one possible outcome if the court were to say that available as a legal matter means what we think it means but that there could be subsidiary questions that would be left for him and we would not quarrel with that outcome we think that for iran ready to properly qualify as available within the meaning of the p l r i the prison system must sufficiently inform an inmate as to which administrative remedy here she needs to use to protest to oppress a particular kind of claim and then additionally needs to explain so reason the inmate would know the steps that he or she needs to take to have properly exhausted that right what is the difference between that and what the statue used to say before it was amended where it required exhaustion of such planes claims speedy and effective administrative remedies as are available yes or no i think you're saying it has to be plain no your honor i think there's a substantial amount of daylight between remedy on one hand to be plain on the other hand to have sufficient clarity that a reasonable prisoner would understand how it works and perhaps an example a prison remedy could a prison system could create an administrative remedy that is in fact quite complex that has several steps perhaps some of the steps are conditional based on the kind of claim individuals raising were based on the adjudication at the lower steps that might be very complicated but would be perfectly fine so long as the prison accompanies that w sufficiently clear guidance that a reasonable inmate would know how to actually navigate the system do you think that there is also substantial daylight between your standard and the solicitor general standard in other words what i took the solicitor general to be saying with respect to this clarity question is that the standard is if that if the procedures are so confusing that a reasonable person could not use them that's his standard do you think that there is a difference between yours and his arm so i don't think there's a substantial difference your honor i think we certainly agree with the solicitor general that a reasonable notice is necessarily incorporated into this we disagree with the test of this article in their brief a page twenty one where they suggest that that's the standard must be so high that if any conceivable reasonable inmate could follow its could could satisfy the test but that would be sufficient we think that is certainly too high a test because if one of one hundred or one of a thousand inmates happens to get it right that might not mean that it's a reasonable system it just might mean if an inmate is reduced to guess work sometimes the inmates going to guess correctly already this is quite important to me and the solicitor general i think and his is made very clear why this is such an important question not just your client but i mean in general in the system the fourth circuit copied a full page of what it said was the second circuit special exceptions test and then it listed it and the rest of the opinion that you cite really is meant to be an application of that test and what you were talking about is simply the procedural baggage that yes so whatever words i or anyone else write here are going to take on a lot of importance in the prison system i'm nervous as always when that kind of thing happens not an expert in now there's several ways we could go i mean it sounds to me even though i did write and i think correctly that there are exceptions such as for constitutional issues for example traditionally there is no exception for the reasonable mistake i don't aware of any and it sounds as if reasonable mistake is best put under rubric of availability now that's just tentative but if i'm right in thinking that what we have here is simply a an aspect of the availability question then maybe the thing to do send it back and argue out all the availability including this in the court below rather than us trying to write a standard or second maybe we adopt the s g standard law maybe we adopt your standard i don't certainly think that the outcome here was correct so we that certainly our starting point we think the best way to get there the proper rubric that would apply in this case and in all other cases is an understanding of what available properly means so i would suggest i think the statutory text and what available fairly has been held to mean by this court and booth and elsewhere does the work certainly in this case and i think in the vast majority of cases as the court said in booth available here means accessible or capable of use i don't think anyone would fairly describe a prison administrative remedy as one that is accessible or capable of use a reasonable prisoner wouldn't know which remedy it is he or she is supposed to use in the circumstances or would it know the proper steps that he or she needs to take in order to avoid procedural to fall under what for its standard that the system has to have that minimal degree of clarity for one to actually have been described as available certainly congress retained the word available after added amended the p r a from the and available must have meaning congress certainly didn't say any standard or any remedy or all remedies and again i don't think nearly even disagrees with us on this point because they say the reply brief page five they agree that if this if th system one that is fairly available so you see if i thought if i could understand you though i mean one argument that you would have whether here or below where is this notion of the prison system didn't meet this level of clarity whatever it is but there's another argument don't you think or do you think that you have which is just they said to go to the a a r p and the a or b a r p was not in the business of giving this remedy so we did exactly what we were told to do and it turns out the remedy is unavailable because it's just not available i think that's precisely cracked i actually agree with that view that here in all of the cases that anyone is identified in again with both are watching but also in every case in  petitioners watching and i just point the courts to their lodging at page twenty five thirty two thirty seven forty six ninety three two hundred thirty one and there are others every example that anyone has identified the heir p has always said you've come to the wrong place because of the high you is under way there can be no we've had here i think that's plainly unavailable system as the court in blue said for an assistant minister of remedy to qualify as available the administrative officers must have some authority to provide relief in the circumstances and i don't  mean to beat a dead horse but the citations you cited it is true that that's to the lodgings but i don't have any confidence that these lodgings represent the complete universe to allow me to make a judgment about the procedures under maryland law because this wasn't negated or subject to discovery in the district court or court of appeals so you know two things first again we would not disagree if every man could be appropriate for some of these issues but second i think there's enough that is undisputed in the record currently that doesn't even require a look in the hall to the lodgings to find that this was not available system to begin with the are you exclusively regulation that we discuss or page seventeen of the read brief made quite clear at the time of this incident that the i you had exclusive authority whenever there was a referral that was made to the i u at that point and that no other agency could proceed that again has nothing to do with the lodging material and i think makes quite that the air p was not the proper place to go we have the additional briefs which i think are on somewhat different footing than some of the other agency materials and we have the two thousand and eight directive that did happen after the case but made quite clear that p is simply not that not the correct place for these cases to go so i think all of these things even independent from the lodgings demonstrate that there was an enormous amount of confusion as to how the system works and is not one that could be described in any sense as available without even you would argue that even if the a a r p procedure turns out to have been available as a formal matter suppose that th and the district court explored it thoroughly and concluded that although there's a lot of there are these materials that might suggest otherwise as a formal matter it is available even when the procedures going is going forward all right i don't know whether that would happen maybe it wouldn't assume that that's the case you would still argue that the procedure was unavailable because although it was available as a not try to use any procedure isn't that correct no you know how was he confused so on the day of the event this is the joint appendix page two hundred twenty nine to two hundred thirty he filed a very detailed report of the incident and he said at the bottom of page two hundred twenty nine this is three and four lines from the bottom i am asking for a formal internal investigation and the next page after a signature p s i will repeat this exact statement under oath at any time you need please investigate this incident he filed this very clear report that described the entire incident and he asked for the prison to respond the prison did in fact respond the next day it instituted the i u investigation so i think the question is after he had taken this very clear affirmative step would somebody in if circumstances a reason or prisoner known that he had to do something else and i think everything that we know shows that a recent prisoner wouldn't have understood he had to do anything else beyond the i u investigation so again i think very clear  steps he took and the only question is would he have known he had to go to the a or p process he would have known because of the i you exclusively regulation wouldn't have known because of the practice in maryland prisons and even if you'd shown up there we now understand that in all cases it was dismissed there was a rubber stamp that was used to dismiss all these claims so for both of those reasons he would have known to have gone there and if he had gotten there he would have shown up to a place that was going to decide he received he received materials from the prison saying that the seizure is available in cases of excessive use of force isn't that right he did your honor but none of that material said anything whatsoever about the i you the i you exclusively regulation however it was specific and generally the specific is going exclusive it was in the regulations that again all of the regulations that marilyn hadn't acted that would be available to prisoners and he read those no your i don't think there's direct evidence that he read those but i think the question is what an objectively reasonable person would have understood and the only guidance that was specific to the i you that had anything to do would inform a prisoner once you're in the i channel what is it that you should be doing at that point said this was the exclusive mechanism all other agencies have to relinquish authority so i think that very tailored guidance would certainly trump the broad policy statements that exist in the other regulations in the maryland handbook that say nothing whatsoever as to an inmate as to what he should do when the i u investigates and i should also add that one of the interesting things about this case is the are you investigations are the investigations where the maryland prison itself it initiates them because it thinks those are the most serious incidents in the prison that's where maryland thinks that its own prison officials may have engaged in criminal wrongdoing and therefore they need to undertake this process what maryland has done is created very substantial trips and traps for only the cases that are most likely to correspond to the very worst conduct in maryland prison so i think that's particularly pernicious aspect of creating the system where if you're confused and told to go there are people in the air pee in all cases it's going to dismiss your claim telling you that that you've come to absolutely the wrong place and again i think all of the material at this point is  its page three hundred sixty seven of the joint appendix and this is part of the directives it's a long directive that provides several different pieces of guidance as to how the air p procedure works and at investigation the authority of the iou provides some additional details and it says it provides the text that now appears on the rubber stamp which is your request is dismissed for procedural reasons finally the issue is being investigated by you case number blank since this case shall be investigated by you know further action shall be taken within the air p process so this is i think a quite clear regulation as to how the system now works i'll note that maryland's view at nine of their  that even today notwithstanding this new directive their view is the way the system works as a prisoner still has to go to the air p to properly exhaust their claims in these circumstances despite the fact that this regulation i think it's crystal clear that if you do so your claim is going to be denied and you're not told contrary to the suggestion that you would be you would know to appeal you're not told that you should appeal this dismissal anywhere there's not a shred of guidance that says when you have your air p dismissed because you've told been told you've come to the wrong place the proper thing is just to keep appealing it you're told that it's being dismissed because of the iou investigation so i think a reasonable prisoner would be quite clearly led to believe that the are you is in fact the only thing that needs to happen in his particular case and would clearly be misled into not actually appealing so i think it's much more likely that it's the unreasonable prisoners who disregard that the clear guidance that they're getting who continue to appeal in these circumstances now one additional point the maryland reference marilyn's system in this case for indoors that would become a very clear model for what other prisons could enact the sort of upside down system where you're told you have to go the air p process to properly exhaust but once you get there you're told that you've absolutely come to the wrong place and despite any guidance you have to somehow know that you need to appeal contrary to the instructions that you're being given in order to properly exhaust your claim as the courts and woodford to properly exhaust and to avoid procedural default the prisoner needs to use the steps that the prison properly holds out here in the state is doing the very opposite of holding out these steps as available to the prisoners the state is saying you've come to the wrong place you're using the wrong steps that can't be what i think the court meant for proper