"Failure to exhaust is an affirmative defense, and it is [the D]efendants' burden to establish non-exhaustion." Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (collecting cases).

A prison official's refusal to accept or forward a prisoner's grievance is conduct that hinders a plaintiff's ability to pursue administrative remedies. Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y.2008) Here, Plaintiff alleges that B. White, the Inmate Grievance Supervisor, inhibited Plaintiff from exhausting his available administrative remedies.

(1) The facility's "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals-which effectively rendered the grievance appeal process unavailable to him." Sandlin v. Poole, 575 F. Supp.2d 484, 488 (W.D.N.Y. 2008) (noting that "[s]uch facts support a finding that defendants are estopped from relying on the exhaustion defense, as well as "special circumstances" excusing plaintiff's failure to exhaust"); (2) Other individuals' "threats [to the plaintiff] of physical retaliation and reasonable misinterpretation of the statutory requirements of the appeals process."

” Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y. 2008) (citation omitted). A plaintiff is estopped from exhausting administrative remedies where “defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures.”

It then could be reasonably argued that administrative remedies were not made available to him. See Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y 2008) (concluding that defendants in a civil rights action would be estopped from arguing failure to exhaust remedies as an affirmative defense, if prison officials had refused to accept or forward the plaintiff's administrative appeals).

Making affirmative misrepresentations to a prisoner with preexisting health conditions about his right to seek release in the middle of a worldwide pandemic and threatening him for trying to invoke that right constitutes special circumstances so as to compel the application of equitable estoppel. See, e.g. , Sandlin v. Poole , 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (finding "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward [prisoner]'s appeals" support estopping prison officials' reliance on exhaustion defense); Rivera v. Goord , 253 F. Supp. 2d 735, 747 (S.D.N.Y. 2003) ("[A] plaintiff may assert estoppel, and exhaustion may be excused, if he has been led to believe that an incident was not a grievance matter and would be otherwise investigated or that filing a grievance would be futile."). These are unique and unusual times, and this is one of those rare cases where the circumstances warrant invocation of equitable estoppel.

There are a variety of special circumstances that may excuse a prisoner's failure to exhaust his available administrative remedies, such as the following: (1) the facility's "refusal to accept or forward plaintiff's appeals [to CORC]-which effectively rendered the grievance appeal process unavailable to him"; (2) non-defendants' "threats [to the plaintiff] of physical retaliation and reasonable misinterpretation of the statutory requirements of the appeals process"; and (3) when the plaintiff tries "to exhaust prison grievance procedures[, and] although each of his efforts, alone, may not have fully complied, together his efforts sufficiently informed prison officials of his grievance and led to a thorough investigation of the grievance."Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (noting that "[s]uch facts support a finding that defendants are estopped from relying on the exhaustion defense, as well as 'special circumstances' excusing plaintiff's failure to exhaust"). Clarke v. Thornton, 515 F. Supp. 2d 435, 439 (S.D.N.Y. 2007) (noting also that "[a] correctional facility's failure to make forms or administrative opinions 'available' to the prisoner does not relieve the inmate from this burden").

Courts have found administrative grievance procedures unavailable where an inmate was prevented from filing a grievance. See, e.g., Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (The facility's "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals . . . effectively rendered the grievance appeal process unavailable to him.").

Additionally, Plaintiff did not claim he was threatened, or that he was denied forms or writing materials. See, e.g., Giano 380 F.3d at 675-76 (failure to exhaust was justified under "special circumstances" where plaintiff inmate's misinterpretation of regulations was reasonable and prison official threatened inmate); Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (court found the facility's "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals . . . effectively rendered the grievance appeal process unavailable to him" and noted that "[s]uch facts . . . support a finding that defendants are estopped from relying on the exhaustion defense, as well as 'special circumstances' excusing plaintiff's failure to exhaust."). Under all of these circumstances, the Court finds Plaintiff's misinterpretation of Directive 4040 is not reasonable.

That Plaintiffs were "advised" that one grievance would be sufficient to address their issue is not equivalent to them being prevented from filing further grievances under the standard set forth in Hemphill. See, e.g., Sandlin v. Poole, 575 F. Supp. 2d 484, 488 (W.D.N.Y. 2008) (finding defendants estopped from asserting non-exhaustion defense due to defendants' "failure to provide grievance deposit boxes, denial of forms and writing materials, and a refusal to accept or forward plaintiff's appeals"). Furthermore, even assuming the unspecified grievance was denied, Plaintiffs have not alleged that they attempted, and were prevented, from appealing an unfavorable administrative decision.