SUMMARY ORDER Plaintiff Ramon Cosme appeals from the November 7, 2008 judgment of the District Court granting defendants’ motion for
summary judgment, denying plaintiffs motion for
summary judgment, and dismissing plaintiffs complaint. On appeal, plaintiff argues that the District Court erred in failing to consider whether Cosme’s failure to exhaust his administrative remedies should be excused under the equitable rule established in Hemphill v. New York, 380 F.3d 680 (2d Cir.2004). We assume the parties’ familiarity with the facts and procedural history of this case. In Hemphill, we set forth a three-step inquiry for analyzing whether a prisoner’s failure to exhaust all administrative remedies should be excused. 380 F.3d at 686.
Specifically, the District Court should have considered (1) whether administrative remedies were available, (2) whether defendants may have forfeited the affirmative defense of nonexhaustion by failing to raise the claim in the pleadings, or whether defendant’s own actions inhibiting an inmate’s exhaustion may estop the defendant from raising plaintiffs failure to exhaust as an affirmative defense, and (3) whether special circumstances have been plausibly alleged that justify plaintiffs failure to fully exhaust all administrative remedies. Id.
Here, the District Court failed to conduct this inquiry to determine if Cosme’s failure to exhaust is excusable. Because of the fact-specific nature of such an inquiry, the judgment of the District Court is VACATED and the cause is REMANDED to the District Court for further proceedings consistent with this order.