SUE L. ROBINSON, District Judge.
WHEREAS, this matter having come before the court to adjudicate the affirmative defense asserted by defendants of whether plaintiff exhausted administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a); and
WHEREAS, having held an evidentiary hearing on March 27, 2013, at which the parties had the opportunity to present documentary evidence and testimony and, subsequently, filed supplemental closing statements;
THEREFORE, at Wilmington this 6th day of November, 2013, for the reasons that follow, the court finds that plaintiff exhausted his administrative remedies:
1. Background. Plaintiff alleges that on May 10, 2007, he was assaulted by defendants Officer Cpl. Mann and Lt. Costello at the Sussex Violation of Probation facility ("SVOP"). (D.I. 2) Plaintiff did not file a grievance because the requisite form was unavailable to him. Instead, plaintiff wrote letters to the SVOP Warden and to DOC Commissioner Dan berg, informing them of the alleged assault. Commissioner Danberg ordered an Internal Affairs ("IA") investigation into plaintiff's assertions. Following the completion of the investigation, plaintiff, proceeding pro se, filed this lawsuit pursuant to 42 U.S.C. § 1983.
2. Defendants moved for summary judgment, arguing, inter alia, that plaintiff failed to exhaust his administrative remedies as required by the PLRA. (D.I. 98) By opinion and order dated June 11, 2010, the court denied defendants' motion for summary judgment finding that plaintiff was excused for his failure to exhaust administrative remedies inasmuch as he was not provided grievance forms, despite his repeated written and oral requests. (D.I. 105, 106)
3. Subsequently, the parties engaged in the exchange of discovery and a member of the Federal Civil panel entered his appearance on behalf of plaintiff. On August 10, 2011, a scheduling order was entered, setting deadlines for discovery, dispositive motions, referral to mediation and a pretrial and trial date. (D.I. 136)
4. Following the completion of discovery, defendants filed a second motion for summary judgment, asserting that plaintiff did not fully exhaust his administrative remedies because he refused to cooperate with lA investigators. On May 17, 2012, the court denied their motion, concluding there were genuine issues of material fact for a jury to resolve on the issue of whether plaintiff exhausted. (D.I. 178)
5. At the August 15, 2012 pretrial conference, the issue of exhaustion was raised, again, and supplemental briefing was ordered. The jury trial set for August 27, 2012 was cancelled. (D.I. 177) The parties conducted additional depositions and exchanged supplemental interrogatories. (D.I. 199, 200, 211) By order dated February 11, 2013, an evidentiary hearing was scheduled in order for the court, rather than a jury, to decide whether plaintiff had exhausted his administrative remedies pursuant to the PLRA. (D.I. 220)
6. PLRA. Congress enacted the PLRA in an effort to curb the number of prisoner filings in the federal courts. Small v. Camden County, 728 F.3d 265, 268 (3d Cir. 2013). The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as available are exhausted." 42 U.S.C. § 1997e(a); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). Failure to exhaust is an affirmative defense that the defendant must plead and prove. Jones v. Bock, 549 U.S. 199, 212 (2007). Moreover, the defendant must demonstrate that the prisoner failed to exhaust each of his claims. Id. at 220-24.
7. Exhaustion of administrative remedies under the PLRA is a question of law to be determined by the judge, even if that determination requires the resolution of disputed facts. Small, 728 F.3d at 269-271. In so doing, the court must first determine whether administrative remedies were available to plaintiff. "Availability may sometimes turn on questions of fact' and available means capable of use, at hand."' Smith, 728 F.3d at 271 (citations omitted).
8. Next, the court must consider whether the inmate completed the "administrative review process in accordance with the applicable procedural rules" that are "defined not by the PLRA, but by the prison grievance process itself." Jones, 549 U.S. at 218. The Third Circuit has held that "to complete the administrative review process" means "substantial" compliance with the prison's grievance procedure. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004) (citing Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000)). Prison grievance procedures establish the yardstick for determining what steps are required for exhaustion. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007).
9. There is no futility exception to the PLRA's mandatory exhaustion requirement. Nyhuis v. Reno, 204 F.3d at 71. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
10. An inmate will not be held to strict compliance with this exhaustion requirement, however, if the actions of prison officials directly caused or contributed to the inmate's procedural default on a grievance. Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000); Mack v. Curran, 457 Fed.Appx. 141, 145 (3d Cir. 2012) (unpublished) ("We have recognized certain circumstances prevent the timely pursuit of the prison grievance process, thereby making the administrative remedies unavailable"); Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (administrative remedies unavailable where prison officials gave inmate erroneous instructions about grievance process). Prison officials "may waive the exhaustion requirement if the ultimate administrative authority fully examines ...