This is simply not an instance in which the record conclusively establishes non-exhaustion. See, e.g., Acosta v. United States Marshals Service, 445 F.3d 509, 512 (1 Cir., 2006) (section 1983 claimant did "not claim to have sought any administrative remedy," except to argue that he fulfilled exhaustion requirement by filing complaint with Marshals Service which was, as a matter of law, inadequate); LaMarche v. Bell, 2006 WL 2927242, at *5 (D. N.H., Oct. 13, 2006) (inmate's grievances were not properly exhausted under Ngo because inmate's own pleadings established that inmate had filed grievances out of time, and with wrong authority); Andrade v. Maloney, 2006 WL 2381429, *6 (D. Mass., Aug. 16, 2006) (inmate's own statements established failure to comply with filing deadline). Finally, the Court rejects the defendants' argument that the plaintiff can be deemed to have waived a jury trial.
Because of Ngo's relevance, the Court will convene an evidentiary hearing in order to resolve the exhaustion question within Ngo's framework, and in order to permit the parties to bolster their respective positions in light of Ngo. Below, in order to focus the issues for the parties, the Court sets out the current state of the record. Several courts within the First Circuit have taken this approach following the Supreme Court's decision in Woodford v. Ngo. See, e.g., Wigfall v. Duvall, 2006 WL 2381285 (D. Mass. 2006) (conducting evidentiary hearing in light of Ngo); Parker v. Robinson, 2006 WL 2904780, *2 n. 9 (D. Me. Oct. 10, 2006) (denying motion for summary judgment in report and recommendation, but noting equity in permitting inmate opportunity to "buffer his case for exhaustion in view of Ngo"); LaMarche v. Bell, 2006 WL 2927242, *3 (D. N.H. Oct. 13, 2006) (granting summary judgment in favor of prison officials on exhaustion issue after affording parties an opportunity to supplement their legal memoranda once the Supreme Court issued Ngo).II. Legal Framework