The opinion of the court was delivered by: Mark D. Fox United States Magistrate Judge
Pro se Plaintiff, Myron Dukes, an inmate currently incarcerated at Southport Correctional Facility, brought this 42 U.S.C. § 1983 action alleging that, prior to being admitted to the Special Housing Unit at the Green Haven Correctional Facility ("Green Haven"), the Defendants used excessive force against him and failed to subsequently provide him with adequate medical care, in violation of his rights under the Eighth Amendment, and failed to adequately investigate and report the alleged assault, in violation of his Fourteenth Amendment right to due process. By order dated June 16, 2004, the Court dismissed the action without prejudice, finding that Dukes failed to exhaust his administrative remedies and failed to state a claim against Defendants Bodzak, Selsky, Holland, the Deputy Superintendent of Security at Green Haven, and the Director of the State Department of Health. Judgment was entered in favor of the Defendants on June 18, 2004.
Dukes appealed this Court's judgment to the Second Circuit Court of Appeals. On November 3, 2005, the Court of Appeals affirmed the dismissal of Dukes's complaint as against Selsky, Bodzak, and Holland*fn1 for failure to state a claim, vacated the Court's dismissal based on Dukes's failure to exhaust, and remanded the matter in light of five decisions on the exhaustion requirement of the Prison Litigation Reform Act ("PLRA") that it had rendered subsequent to this Court's dismissal of Dukes's action, namely, Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004); and Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004). Specifically, the Court of Appeals directed this Court to consider on remand whether: "(1) administrative remedies were 'available' to Dukes under the PLRA; (2) defendants are estopped from asserting an exhaustion defense; or (3) special circumstances exist such that Dukes is excused from complying with exhaustion." Dukes v. S.H.U. C.O. John Doe, et al., No. 04-3759, 153 Fed.Appx. 772 (2d Cir. Nov. 3, 2005)(unpublished decision). The Court of Appeals also specifically advised this Court to consider "whether Dukes's attempts to follow the grievance procedures set out in 7 N.Y.C.R.R. § 701.7 were, even if imperfect, a reasonable interpretation of these regulations." Id.
On February 21, 2006, the matter was reopened in this Court and subsequently referred to me for the purposes of receiving additional submissions from the parties and to issue a further Report and Recommendation. In a letter to the Court dated February 15, 2006, the Defendants renewed their motion to dismiss and, on April 25, 2006, after receiving a response from Dukes, the Court heard oral argument on the motion.
In their February 15, 2006 letter, the Defendants argue that the Court should adhere to its previous decision dismissing Dukes's complaint for failure to exhaust administrative remedies because, although Dukes did not receive a response to his appeal to the Superintendent, he was required to appeal his grievance to the Central Office Review Committee ("CORC") of the New York State Department of Corrections ("DOCS"), but failed to do so. In support of their argument, the Defendants cite this Court's decision in Hemphill on remand in 2004. See Defendants' Letter Brief dated 2/15/06. The Defendants note that, like Dukes, the Plaintiff in Hemphill had attempted to exhaust his administrative remedies by writing a letter directly to the Superintendent of the facility and, when he did not receive a response, failed to appeal to the CORC. See id. On remand, after conducting an evidentiary hearing, this Court held, inter alia, that, even if writing to the Superintendent was the only remedy available to Hemphill, he failed to exhaust because he failed to appeal to the CORC. See Report and Recommendation of The Honorable Lisa Margaret Smith (Report and Recommendation) at 26-27 and Memorandum Order Adopting Report of Magistrate Judge Smith as the Opinion of the Court and Again Dismissing the Petition for Failure to Exhaust Administrative Remedies ("Order") (attached as Ex. I to Defendants' 2/15/06 Letter Brief). The Court held that, despite having received no response from the Superintendent, Hemphill was required to appeal to the CORC. See Report and Recommendation at 26-27 and Order. Here, the Defendants argue that the same result is mandated in this case. See Defendants' Letter Brief dated 2/15/06.
Dukes argues that his case is distinguishable from Hemphill because he "was unquestionably assaulted by Defendants Dimonda, Tillotson, Austin, and Mazel[l]a while in the presence of Tierney" and, subsequently, filed a timely grievance to the Superintendent and with the Inmate Grievance Program ("IGP"). Letter to Court dated March 8, 2006 at 1-2. Dukes further states that "[w]hen [he] did not receive a grievance number or any type of response from the Superintendent or the IGP he also attempted to go the extra yard by mailing a grievance appeal directly to the Superintendent." Id. at 2. He asserts that he was prevented from fully exhausting his administrative remedies because the IGP failed to issue him a grievance number and failed to render a written response. See id. at 2-4. Dukes notes that, pursuant to the DOCS regulations, in order to appeal to the CORC, inmates must file their appeal with the IGP, which then forwards the appeal to the CORC. See id. at 3. While Dukes's argument in this regard is not entirely clear, he appears to contend that he should not have been expected to file his appeal with the IGP when it had failed adhere to the regulations by not assigning a number to his grievance and not issuing a written response. See id. at 3. He further notes that, in the past, he has filed nine grievances and exhausted his administrative remedies through appeals to the CORC, but only when he received a grievance number and written decision from the IGP and the Superintendent. See id.
In their reply letter, the Defendants further argue that, despite having received no response from the Superintendent, Dukes was required, under 7 N.Y.C.R.R. § 701.11(b)(6), to file and appeal with the CORC. See Defendants' Reply Letter Brief dated 3/28/06. In response to Dukes's allegation regarding the IGP's failure to assign a grievance number, the Defendants, citing to 7 N.Y.C.R.R. § 701.7(a),*fn2 state, "If plaintiff is correct that he was not provided with a grievance number despite initial attempts to file with the IGP through the prison mail, he had ample opportunity to return to the grievance personnel for a number (on the existing or new grievance), even if late on a showing of mitigating circumstances." Id. Finally, the Defendants note that, in his letter brief, Dukes demonstrated close familiarity with the grievance regulations and requirements and assert that "[s]uch familiarity undercuts his arguments here, in the face of the express regulations." Id.
At the April 25, 2006 oral argument, Dukes made the following arguments: (1) the Defendants should be estopped from asserting exhaustion as a defense because, by failing to respond to his three grievances, they impeded his ability to exhaust his claims; and (2) because he never received a grievance number, he could not appeal to the CORC. See Trans. at 2-4. The Defendants argued that, even if Dukes's grievance was not assigned a grievance number, he never made an effort to obtain one and, therefore, cannot use the absence of a grievance number as an excuse to justify his failure to administratively exhaust his claims. See id at 5-8.
Under the PLRA, "[n]o action shall be brought with respect to prison conditions under § 1983 of this title...until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In Porter v. Nussle, the Supreme Court made clear that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." 534 U.S. 516, 532 (2002). Administrative exhaustion is not jurisdictional, see Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003), and, therefore, the Defendants bear the burden of proving non-exhaustion, see Warren v. Purcell, No. 03 Civ. 8736, 2004 WL 1970642, at *5 n.8 (S.D.N.Y. Sep. 3, 2004).
In August 2004, the Second Circuit decided a series of cases regarding the PLRA exhaustion requirement. See Ortiz, 380 F.3d 649; Abney, 380 F.3d 663; Giano, 380 F.3d 670; Hemphill, 380 F.3d 680; and Johnson, 380 F.3d 691. The Court recognized that, "while the PLRA's exhaustion requirement is mandatory, certain caveats apply." Giano, 380 F.3d at 677 (internal quotation marks and citation omitted). In Hemphill, the Court fashioned the following three-part inquiry that district courts must undertake when a prisoner plaintiff seeks to counter a defendant's claim that the prisoner has failed to exhaust his administrative remedies: (1) whether administrative remedies were, in fact, "available" to the prisoner; (2) whether the defendants' own actions inhibiting the prisoner's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense; and (3) if the court finds that administrative remedies were available to the plaintiff and that the defendants are not estopped from asserting failure to exhaust as a defense, whether "special circumstances" exist that justify the inmate's failure to comply with the exhaustion requirements. See Hemphill, 380 F.3d at 686. Each prong will be addressed in turn.
I. Availability of Administrative Remedies
In Abney, the Second Circuit held that, in some circumstances, actions of prison officials may render administrative remedies unavailable to an inmate. See Abney, 380 F.3d at 667. "When determining whether an administrative remedy is available, courts 'should be careful to look at the applicable set of grievance procedures, whether city, state, ...