John DOE, Plaintiff-Appellant, v. Jose BERRIOS, John J. Armstrong, Ken Avery, Belinda Billue, Esther McIntosh, Mary Marto, Mary Johnson, University of Ct Health Ctr, Defendant-Appellees, Ronald Barrett, Defendant, 151 F. App'x 60

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and it hereby is VACATED and the matter is REMANDED to the district court. Plaintiff-Appellant John Doe, a Connecticut state prisoner, appeals the dismissal of his complaint, brought under 42 U.S.C. § 1983, for failure to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Familiarity with the facts, procedural history and issues on appeal is presumed.

We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, with all inferences drawn in favor of the nonmoving party. See Ortiz v. McBride, 380 F.3d 649, 653 (2d Cir.2004). “We similarly review a district court’s ruling on whether a plaintiff whose claim is governed by the PLRA has exhausted administrative remedies de novo.” Id. at 653. “It is now well-settled in this circuit that exhaustion under the PLRA is not jurisdictional, and that it is an affirmative defense.” Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004) (citing Richardson v.

Goord, 347 F.3d 431, 434 (2d Cir.2003); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir.1999)). Since this Court heard oral argument, we have issued five consolidated opinions which, in clarifying the nature of this affirmative defense, directly impact this case. See generally 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); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004).

In Hemphill we held that a “three-part inquiry is appropriate in cases where a prisoner plaintiff plausibly seeks to counter defendants’ contention that the prisoner has failed to exhaust available administrative remedies as required by the PLRA.” Hemphill, 380 F.3d at 686. First, the court should ask “whether administrative remedies were in fact ‘available’ to the prisoner.” Id. (citing Abney, 380 F.3d at 667-69). Second, the court should consider whether the defendants “forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it” or are otherwise estopped from raising the defense.

Hemphill, 380 F.3d at 686 (citing Johnson, 380 F.3d at 695-96; Ziemba, 366 F.3d at 163). Third, the court “should consider whether ‘special circumstances’ have been plausibly alleged that justify ‘the prisoner’s failure to comply with administrative procedural requirements.’ ” Hemphill, 380 F.3d at 686 (quoting Giano, 380 F.3d at 676). Of particular relevance to this case, “in some circumstances threats by prison guards may render administrative remedies ‘unavailable’ for purposes of [the PLRA].” Ortiz, 380 F.3d at 654 (citing Hemphill, 380 F.3d at 689-91).

Because Ortiz, Hemphill, Giano, Johnson, and Abney were decided after the district court’s dismissal of Doe’s claims, it did not have the benefit of this precedent in considering whether Doe’s claims had been exhausted. Accordingly, we remand to the district court to determine whether Doe exhausted his administrative remedies. We take no position on whether the district court’s application of Hemphill may require additional factual development. We have considered all of Doe’s other arguments on appeal and find them without merit.

The judgment of the district court with respect to the Defendant-Appellees is VACATED, and this case is REMANDED to the district court for further proceedings.