Rather, the essence of his response was that there was no "available" administrative remedy because Deputy Mazotti's threats frustrated his efforts to comply with the grievance process. ECF No. 175. He correctly cited Tuckel v. Grover, 660 F.3d 1249 (10th Cir. 2011) for the proposition that an administrative remedy is not available to be exhausted if '"prison officials prevent, thwart, or hinder a prisoner's efforts to available himself of [the] administrative remedy.'" Id. at 1252 (quoting Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010)).

And both sides' submissions, although scattershot and in need of further review, lend some support to Blake's account—while also revealing Maryland's grievance process to have, at least at first blush, some bewildering features. See, e.g.,Davis v. Hernandez, 798 F.3d 290, 295 (C.A.5 2015) ("Grievance procedures are unavailable ... if the correctional facility's staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process" (emphasis deleted)); Schultz v. Pugh, 728 F.3d 619, 620 (C.A.7 2013) ("A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy"); Pavey v. Conley, 663 F.3d 899, 906 (C.A.7 2011) ("[I]f prison officials misled [a prisoner] into thinking that ... he had done all he needed to initiate the grievance process," then "[a]n administrative remedy is not ‘available’ "); Tuckel v. Grover, 660 F.3d 1249, 1252–1253 (C.A.10 2011) ("[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, that process can no longer be said to be ‘available’ ");Goebert v. Lee County, 510 F.3d 1312, 1323 (C.A.11 2007) (If a prison "play[s] hide-and-seek with administrative remedies," then they are not "available"). Blake's filings include many administrative dispositions (gleaned from the records of other prisoner suits) indicating that Maryland wardens routinely dismiss ARP grievances as procedurally improper when parallel IIU investigations are pending.

Under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), a prisoner is required to exhaust available administrative remedies. This requirement is mandatory. Woodford v. Ngo, 548 U.S. 81, 85 (2006); Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir. 2011). "[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, [however], that process can no longer be said to be 'available.'"

If Defendants demonstrate that Mr. Spotts did not exhaust his administrative remedies, the burden shifts to Mr. Spotts “to show that remedies were unavailable to him.” May, 929 F.3d at 1234 (internal quotation marks omitted); see also Williams v. Borrego, No. 19-cv-00371-RBJ-MEH, 2020 WL 1502296, at *7 (D. Colo. Mar. 30, 2020) (noting that inmates face a “high bar to show unavailability”) (citing May, 929 F.3d at 1235; Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)). B. The BOP Administrative Remedy Program

But "[o]nce the defendant has carried that burden, the prisoner has the burden of production. That is, the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc); see also Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) ("Once a defendant proves that a plaintiff failed to exhaust, . . . the onus falls on the plaintiff to show that [these] remedies were unavailable to him as a result of intimidation by prison officials."); Johnson v. District of Columbia, 869 F. Supp. 2d 34, 38 (D.D.C. 2012) ("Once Defendant has shown that Plaintiff failed to exhaust his administrative remedies, the burden shifts to Plaintiff to establish that a failure to exhaust was due to the unavailability of remedies."). "However, as required by [the Supreme Court in Jones v. Bock, 549 U.S. 199 (2007)], the ultimate burden of proof remains with the defendant."

Pierce does not even argue that he failed to properly grieve his claims as to those defendants because he feared that his protests would reach Posey and potentially cause her to retaliate. Had Posey raised the issue, a jury perhaps could have concluded that, as to the claims against her, she "inhibit[ed] [Pierce] from utilizing an administrative process through threats or intimidation," such that the "process can no longer be said to be 'available, '" considering that Pierce had allegedly just been threatened, beaten, and labeled a "snitch" for making a confidential complaint about Posey that had leaked back to her. Ross, 136 S.Ct. at 1860 n.3 (quoting Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011)). Pierce never complained about the other defendants until he sued them-even though he had sent in the handwritten note about his desire to press charges.

We agree that serious threats of substantial retaliation can trigger this third category of unavailability, and thus join our Sister Circuits who have held, even before Ross , that administrative remedies are not "available" under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm.See McBride v. Lopez , 807 F.3d 982, 986-87 (9th Cir. 2015) ; Tuckel v. Grover , 660 F.3d 1249, 1252-53 (10th Cir. 2011) ; Turner v. Burnside , 541 F.3d 1077, 1084-86 (11th Cir. 2008) ; Kaba v. Stepp , 458 F.3d 678, 684 (7th Cir. 2006) ; Hemphill v. New York , 380 F.3d 680, 686-87 (2d Cir. 2004), abrogated onother grounds as recognized in Williams v. Correction Officer Priatno , 829 F.3d 118, 123 (2d Cir. 2016). Given our conclusion that this circumstance falls within the third category described in Ross , we do not have occasion to address, as have some of our Sister Circuits, whether Ross ’s three categories are exhaustive or merely illustrative.

“[A] defendant bears the burden of ‘proving that the plaintiff did not [exhaust his] administrative remedies.'” May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019) (quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)).

See Booth v. Churner, 532 U.S. 731, 737 (2001). For purposes of PLRA exhaustion, an administrative remedy is unavailable "when a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation," Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011), or "[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy," Little, 607 F.3d at 1250. Indeed, "courts [] are obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials."

See Booth v. Churner, 532 U.S. 731, 737 (2001). For purposes of PLRA exhaustion, an administrative remedy is unavailable "when a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation," Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011), or "[w]here prison officials prevent, thwart, or hinder a prisoner's efforts to avail himself of an administrative remedy," Little, 607 F.3d at 1250. Indeed, "courts [] are obligated to ensure that any defects in exhaustion were not procured from the action or inaction of prison officials."