  08-6276-pr
  Cosme v. Furman

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed
with this court, a party must cite either the Federal Appendix or an electronic database (with the
notation “summary order”). A party citing a summary order must serve a copy of it on any party
not represented by counsel.
        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 26th day of April, two thousand ten.

PRESENT:
                     JOSÉ A. CABRANES,
                     RICHARD C. WESLEY ,
                                Circuit Judges.*
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RAMON COSME ,

                     Plaintiff-Appellant,

                     -v.-                                                   No. 08-6276-pr

SERGEANT FURMAN , KAMUS, CORRECTION OFFICER, CLARK , CORRECTION OFFICER, JOHN DOE #1
THROUGH #4, ALL OF THE SOUTHPORT CORRECTIONAL FACILITY , DOCS, NYS, IN THEIR INDIVIDUAL
AND OFFICIAL CAPACITIES,

                     Defendants-Appellees.

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COUNSEL FOR APPELLANT:                                         Ramon Cosme, pro se, Napanoch, NY.


            *
            The Honorable Rosemary S. Pooler, originally scheduled to be a member of the panel
  hearing this appeal, was unable to participate. The appeal has been decided by the remaining two
  members of the panel, who are in agreement. See 2d Cir. Local Rules, Internal Operating Procedure
  E(b).

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COUNSEL FOR APPELLEE:                            Martin A. Hotvet, Assistant Solicitor General, (Andrew
                                                 M. Cuomo, Attorney General of the State of New York;
                                                 Barbara D. Underwood, Solicitor General; Andrea Oser,
                                                 Deputy Solicitor General, of counsel) Albany, NY.

Appeal from a judgment of the United States District Court for the Western District of New York
(David G. Larimer, Judge).


     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is VACATED and REMANDED.

         Plaintiff Ramon Cosme appeals from the November 7, 2008 judgment of the District Court
granting defendants’ motion for summary judgment, denying plaintiff’s motion for summary judgment,
and dismissing plaintiff’s 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 plaintiff’s failure to exhaust as an affirmative defense, and (3) whether special circumstances
have been plausibly alleged that justify plaintiff’s 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.

                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk




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