As such, prison officials "effectively waived" the 30-day filing deadline required under its grievance policy. Mallory v. Marshall, 659 F. Supp. 2d 231, 237 (D. Mass. 2009); see also Carter v. Symmes, No. 06-10273-PBS, 2008 WL 341640, at *3, 2008 U.S. Dist. LEXIS 7680, at *8-9 (D. Mass. Feb. 4, 2008) (holding that any deficiency in an inmate's grievance form was apparently waived because the prison addressed the inmate's allegations fully on their merits); Maraglia v. Maloney, No. 2001-cv-12144-RBC, 2006 WL 3741927, at *7, 2006 U.S. Dist. LEXIS 90805, at *21-22 (D. Mass. Dec. 18, 2006) (finding institutional time limitations waived where prison did not deny grievance because it was untimely, but rather because it was "non-grievable"). In light this waiver, McGrath cannot now assert that Stow failed to exhaust his administrative remedies on timeliness ground.
"Non-exhaustion of administrative remedies is an affirmative defense, and the defendants bear the ultimate burden of pleading and proving non-exhaustion." Maraglia v. Maloney, Civil Action No. 2001-12144-RBC, 2006 WL 3741927, at *1 (D. Mass. Dec. 18, 2006)(citing Casanova v. Dubois, 304 F.3d 75, 77 n.3 (1st Cir. 2002)); see also Jones, 549 U.S. at 216 (concluding that failure to exhaust is an affirmative defense under the PLRA). DISCUSSION
Therefore, this court concludes that the question of exhaustion cannot be resolved on summary judgment. See Maraglia v. Maloney, Civil Action No. 2001–12144–RBC, 2006 WL 3741927, at *2–3 (D.Mass. Dec. 18, 2006) (denying defendants' motions for summary judgment where questions remained regarding availability of prison grievance procedures). The defendants argue that their testimony should not be read to suggest that there was no grievance procedure available to accommodate Brown's request for a cell reassignment.
While the IGC and Superintendent did not explicitly waive this justification for denial, the fact that they did not deny on timeliness grounds but instead considered Mallory's grievance on the merits and stated that the matter would be addressed, effectively waived the 10 day time limit for filing. See Carter v. Symmes, No. 06-10273-PBS, 2008 WL 341640, at *3 (D.Mass. Feb. 4, 2008) (holding that any deficiency in an inmate's grievance form was apparently waived because the prison addressed the inmate's allegations fully on their merits); Maraglia v. Maloney, No. 2001-12144-RBC, 2006 WL 3741927, at *7 (D.Mass. Dec. 18, 2006) (where DOC did not deny grievance because it was untimely, but rather because it was "non-grievable," "the IGC waived the institutional time limitations"). See also Griswold v. Morgan, 317 F.Supp.2d 226, 229-30 (W.D.N.Y. 2004) (in evaluating whether IGC waived timeliness requirement for grievance, court applies the rules applied in habeas corpus cases: "if a state ignores a potential procedural bar and reaches the merits of a prisoner's claim, the federal habeas courts may consider the claim") (quotation omitted).
II. Background The Court presumes familiarity with the Court's previous discussion of this issue set out in Maraglia v. Maloney, 2006 WL 3741927 (D. Mass., Dec. 18, 2006). This matter is before the Court on the defendants' Motion to Dismiss (#33) on lack of exhaustion grounds, which the Court converted into a motion for summary judgment.