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Romero v. Ahsan

United States District Court, D. New Jersey

December 20, 2018

ABU AHSAN, Defendant.




         Plaintiff, Michael A. Romero (“Romero” or “Plaintiff”), is a state prisoner who was, at all relevant times, incarcerated at New Jersey State Prison (“NJSP”), in Trenton, New Jersey.[1]Romero initially filed a pro se civil-rights complaint under 42 U.S.C. § 1983 in December 2013, (Compl., ECF No. 1), but he is now represented by pro bono counsel (see ECF Nos. 45-47). Defendant, Abu Ahsan (“Ahsan” or “Defendant”), previously moved for summary judgment, under Federal Rule of Civil Procedure 56, on the basis that Romero failed to exhaust administrative remedies and also on the merits of Romero's claims. (Mot., ECF No. 58.) After the motion was fully briefed, the Court found questions of fact concerning whether Romero had exhausted administrative remedies and ordered the parties to appear for an evidentiary hearing. (ECF Nos. 67 & 68.) Consequently, the Court denied the motion for summary judgment without prejudice, and advised that the merit portions of the motion would be reinstated if the action was not disposed of on the exhaustion issue. (Id.) The Court held an evidentiary hearing on exhaustion on June 9, 2017, and subsequently directed the litigants to engage in additional discovery and file supplemental submissions with the Court. (See Tr. of Hr'g (June 9, 2017), ECF No. 86.) The parties have now completed additional discovery and filed supplemental briefs, (ECF Nos. 89 & 90), and the matter is ready for resolution. For the following reasons, the Court finds that Ahsan has failed to establish his affirmative defense that Romero's claims are barred by a failure to exhaust administrative remedies. Furthermore, the Court reinstitutes the other portions of the motion for summary judgment, and that motion is GRANTED.


         A. Underlying Facts

         On December 28, 2011, Romero injured his right knee while playing basketball in the prison yard. (See Def.'s Br. in Support, Statement of Undisputed Material Facts, ECF No. 58-2, ¶ 1; Pl.'s Responsive Statement of Facts, ECF No. 62-6, ¶ 1.) Romero was admitted to the infirmary and received treatment from Ahsan, the NJSP medical director. (ECF No. 58-2 ¶¶ 5- 22; ECF No. 62-6 ¶¶ 5-22.) Ahsan prescribed Romero crutches, range-of-motion exercises, and a pain reliever. (ECF No. 58-2 ¶¶ 5-14; ECF No. 62-6 ¶¶ 5-14.) Following an x-ray on December 29, 2011, Ahsan diagnosed Romero as suffering an acute knee sprain with possible ligamentous injury and ordered a magnetic-resonance-imaging (“MRI”) scan of Romero's knee. (ECF No. 58-2 ¶¶ 6-9; ECF No. 62-6 ¶¶ 6-9.) On January 12, 2012, after an MRI scan, Ahsan modified the diagnosis to an acute right knee sprain with a complete tear of the anterior cruciate ligament (“ACL”), medial meniscal tear, and lateral ligament tear, and he ordered an orthopedic consultation “ASAP for likely surgery.” (ECF No. 58-2 ¶¶ 15-18; Pl.'s Statement of Undisputed Material Facts, ECF No. 62-5, ¶ 10; ECF No. 62-6 ¶¶ 15-18; Def.'s Response to Pl.'s Statement of Undisputed Material Facts, ECF No. 65-2, ¶ 10.)

         Romero had an initial orthopedic consultation, and the resulting proposed treatment plan included use of a knee immobilizer for two weeks and a hinged knee brace for the following three months. (ECF No. 58-2 ¶ 19; ECF No. 62-6 ¶ 19.) Romero received a knee immobilizer on January 18, 2012. (ECF No. 58-2 ¶ 20; ECF No. 62-6 ¶ 20.) At the end of January 2012, Romero had an orthopedic consultation with non-party Ahmar Shakir (“Shakir”), who recommended surgery to reconstruct the ACL and the posterior cruciate ligament (“PCL”) and directed that Romero be sent to a “tertiary care center”[2] for evaluation. (ECF No. 58-2 ¶¶ 24-25; ECF No. 62-6 ¶¶ 24-25.) Two weeks later, Romero had an orthopedic evaluation with Robin Gehrmann (“Gehrmann”), who recommended a hinged knee brace, range-of-motion exercises, and six weeks of physical therapy. (ECF No. 58-2 ¶ 28; ECF No. 62-6 ¶ 28.) Another orthopedist subsequently also recommended use of a hinged knee brace, but Romero did not actually receive a hinged knee brace until June 12, 2012. (ECF No. 58-2 ¶ 33; ECF No. 62-6 ¶ 33.) Romero did not undergo knee surgery at that time. (See ECF No. 58-2 ¶¶ 34-35; ECF No. 62-6 ¶¶ 34-35.)

         In May 2014, over four months after this action was commenced, Ahsan requested that Romero receive another orthopedic consultation. (ECF No. 58-2 ¶ 50-52.) On September 12, 2014, an orthopedist at Cooper Hospital, Dr. Pollard, recommended that Romero be scheduled for knee surgery. (See ECF No. 58-2 ¶¶ 45-48; ECF No. 62-6 ¶¶ 45-48.) Dr. Pollard performed ACL-repair surgery on Romero's right knee on October 22, 2014. (ECF No. 58-2 ¶ 50; ECF No. 62-6 ¶ 50.)

         B. The Complaint and Procedural History

         Meanwhile, on December 19, 2013, Romero, acting pro se, filed a Complaint under 42 U.S.C. § 1983 claiming that Ahsan and Gehrmann violated his constitutional rights by deliberately denying him knee surgery and by delaying provision of the hinged knee brace. (ECF No. 1.) Romero alleged that, the day after his injury, Shakir had told Romero that he would need knee surgery and not to move his knee, but that Ahsan had disregarded this advice, trying to force Romero to stand up and walk at an examination shortly thereafter. (Id. ¶¶ 9-11.) Romero alleged that he had filed a remedy form complaining of Ahsan's insistence that he walk and that, when he told Ahsan that he had filed a grievance, Ahsan “gave him a dirty look and left.” (Id. ¶¶ 11-12.)

         Romero alleged that, after Shakir had again recommended surgery, Ahsan stated that surgery was needed but told Romero that “patients that file remedy forms do not receive surgeries in my prison.” (Id. ¶¶ 13-15.) Romero asserted that he had then filed another remedy form against Ahsan. (Id.) Romero alleged that, on January 26, 2012, Shakir had told him that he needed full knee reconstruction, but that, later that day, Ahsan had again told him he would not receive surgery and discharged him from the infirmary. (Id. ¶ 17.) Romero explained that his existing injuries were still so severe that he required immediate readmittance. (Id.)

         Romero alleged that Gehrmann had subsequently “told plaintiff that in fact he needed surgery but things were more complicated than that, but not to worry because his injuries would still be treated in other ways” and also that Gehrmann had “tried to convince the plaintiff that complaining against Ahsan was an exaggerated response because he meant well and is a good doctor.” (Id.) The following day, Romero alleged, Ahsan had again told him that “complaining equals no surgery” and had discharged him from the infirmary. (Id. ¶ 19.) Romero indicated that he had filed another remedy form against Ahsan and Gehrmann on February 16, 2012, and that, at his next appointment, Gehrmann had again told him there would be no surgery, despite the recommendation of Romero's physical therapist. (Id. ¶¶ 20-21.) Romero additionally alleged that his receipt of a hinged knee brace was intentionally delayed “to keep the plaintiff confined to his wheelchair and prolong his pain and suffering, because he filed grievances against [Ahsan and Gehrmann], and to deter him and others from filing grievances.” (Id. ¶¶ 22- 23.)

         Romero alleged that Ahsan's and Gehrmann's conduct constituted cruel and unusual punishment under the Eighth Amendment and retaliation under the First Amendment. (Id. ¶¶ 27-38.) He sought a declaration that his constitutional rights were violated, an order requiring knee surgery and enjoining further retaliation, and unspecified compensatory and punitive damages, as well as costs and attorney's fees. (Id. at ECF pp. 10-12.)

         The defendants answered Romero's Complaint, and the parties engaged in fact discovery. The Court granted a motion by Romero for appointment of pro bono counsel, and in the wake of counsel's appearance, discovery was reopened. (See ECF Nos. 45-51.) Shortly thereafter, Gehrmann was dismissed from the case by way of a stipulation between the parties. (ECF No. 52.)

         Once fact discovery had been completed, Ahsan filed a motion for summary judgment in his favor. (ECF No. 58.) He argued that judgment must be granted denying the inadequate-treatment claim because the evidence did not demonstrate either a serious medical condition or that Ahsan was deliberately indifferent to a medical need. (Def.'s Br. in Supp., ECF No. 58-1, at 6-13.) Ahsan also contended that summary judgment should be granted as to the retaliation claim as there has been no demonstration that Romero engaged in constitutionally protected conduct or that Ahsan took any retaliatory act. (Id. at 14-16.) Finally, Ahsan argued that the Complaint was barred by the Prisoner Litigation Reform Act of 1995 (“PLRA”) as Romero never actually filed any related grievances, and thus failed to exhaust administrative remedies.[3](Id. at 17-18.) Romero, through counsel, opposed the summary judgment motion, (ECF No. 62), and Ahsan filed a reply brief, (ECF No. 65).

         The Court denied Ahsan's motion without prejudice, finding outstanding factual questions related to the exhaustion argument. (See ECF No. 67.) The primary issue of fact stemmed from Romero's assertions that he had filed five remedy forms concerning Ahsan, and Ahsan's contention that the prison had no record of receiving such grievances. (See id.) The Court noted that “where a prison's administrative grievance ‘procedures d[o] not contemplate an appeal from a non-decision,' the grievance process is unavailable to the complaining inmate after the inmate ‘fail[s] to receive . . . a response to the grievances.'” (Id. at 16 (alterations in original) (quoting Small v. Camden Cty., 728 F.3d 265, 273 (3d Cir. 2013)).) Accordingly, the Court concluded that “if this Court were to find that Plaintiff in fact filed the five grievances concerning Defendant's conduct, and that Plaintiff did not receive responses to those complaints, the Court could find that the IRF grievance process was not legally ‘available' to Plaintiff.” (Id. at 17.) Accordingly, I ordered an evidentiary hearing on the issue of exhaustion, and I deferred consideration of the other arguments for summary judgment pending resolution of the exhaustion issue. (Id. at 17-19.)

         An evidentiary hearing was held on June 9, 2017. (See ECF Nos. 78 & 86.) Following the hearing, the litigants took additional depositions and filed supplemental submissions with the Court. (See ECF Nos. 89 & 90.) The substance of the litigants' supplemental submissions and the testimony adduced during the evidentiary hearing is discussed in the analysis below.


         A. The PLRA Exhaustion Requirement

         The PLRA provides, “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Ross v. Blake, 136 S.Ct. 1850, 1856 (2016); Ball v. Famiglio, 726 F.3d 448, 456 (3d Cir. 2013), abrogated on other grounds by Coleman v. Tollefson, 135 S.Ct. 1759 (2015). The exhaustion requirement is mandatory and, thus, bars an inmate from commencing such an action without first properly exhausting available administrative remedies. Ross, 136 S.Ct. at 1856; Woodford v. Ngo, 548 U.S. 81, 85, 93-94 (2006). “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Coulston v. Glunt, 665 Fed.Appx. 128, 132 (3d Cir. 2016). Exhaustion is a “non-jurisdictional prerequisite” and, consequently, is a “‘threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time.'” Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018) (emphasis omitted) (quoting Small, 728 F.3d at 270).

         Failure to exhaust administrative remedies is an affirmative defense, which the defendant bears the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 216 (2007); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). “Furthermore, the defendant must prove that the prisoner-plaintiff failed to exhaust each of his claims. There is no ‘total exhaustion' rule permitting dismissal of an entire action because of one unexhausted claim.” Small, 728 F.3d at 269 (emphasis added); see also Jones, 549 U.S. at 219-24.

         An exhaustion defense presents a question of law, to be decided by the judge, even if this requires the resolution of factual disputes. Small, 728 F.3d at 269; see also Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). Accordingly, “judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury.” Small, 728 F.3d at 271.

         There is no futility exception to the exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The PLRA, however, “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S.Ct. at 1858. Namely, it requires exhaustion only of “such remedies ‘as are available.'” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (quoting 42 U.S.C. § 1997e(a)); see also Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000). Consequently, a prisoner plaintiff “is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Ross, 136 S.Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “The availability of administrative remedies to a prisoner is a question of law.” Mitchell, 318 F.3d at 529; see also Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002). The Supreme Court has identified three types of situations in which purportedly available administrative remedies may nevertheless be considered unavailable: (1) when an administrative procedure “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when “an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use, ” i.e., where “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60; see also Rinaldi, 904 F.3d at 266-67.

         B. The Applicable Inmate Remedy System

         The litigants have presented the Court with two similar (though not quite identical) potential administrative-remedy frameworks: one derived from an NJSP inmate handbook and one from the New Jersey Administrative Code. Romero testified during the evidentiary hearing that he understood that he needed to follow the administrative-remedy procedures set out in the New Jersey State Prison Inmate's Handbook (Revised October 2007) (“the Handbook”). (See ECF No. 86 at 23-24.) Defense witness, Linda Santoro (“Santoro”), who served as the NJSP remedy coordinator from September 2013 to September 2016, also testified that she followed the procedure set forth in the Handbook. (Id. at 84, 93.)

         The Handbook lays out a procedure for the submission of an Inmate Request System and Remedy Form (“Remedy Form”), noting that the form must include “the inmate's name, SBI number, institution, housing unit and date of request/complaint” and further emphasizing that “[i]t is important that the information clear [sic], complete and easy to read and understand as possible in order that the problem being addressed be clearly understood.” (Certif. of Surinder K. Aggarwal, Ex. A, ECF No. 90-2, at ECF p. 6.) The Handbook advises inmates that “[w]hen a form is submitted incorrectly it may be returned to you with a cover form called the Department of Corrections Inmate Request System and Remedy System Corrective Action Form (IRSF 103), which will indicate the actual reason your form is being returned to you.” (Id. at ECF p. 7.) It notes that each form should address only one problem or request and that “[m]ultiple issues submitted on one form will cause you [sic] form NOT BE [sic] PROCESSED.” (Id.) Inmates are directed to deposit completed Remedy Forms “into the collection box marked “INMATE REQUEST FORMS”, located in each Compound, ” and the Handbook explains that request forms “will be picked up daily.” (Id.) It further states, “Under normal circumstances the INMATE REQUEST SYSTEM AND REQUEST FORM will be processed within thirty (30) working days” and instructs inmates that “[a]dditional forms addressing the same problem or concerns are NOT to be submitted before the end of this 30 day working period, and will not be processed if received.” (Id. at ECF pp. 7-8.) In a section regarding the appeal process, the Handbook states that an inmate “may appeal a staff response to your Inmate Request System and Remedy Form” and that the appeal must be submitted “within ten (10) days of the date your response is returned to you.” (Id. at ECF p. 8.)

         Alternatively, Ahsan contends that the proper grievance procedures were established by Title 10A, Chapter 1, Subchapter 4, of the Administrative Code (“Subchapter 4”). This subchapter, as it existed in 2012 and 2013, largely laid out the same procedures described in the Handbook. It similarly required inmates to include their name and SBI number and to clearly indicate the nature of the request. N.J. Admin. Code 10A:1-4.4(e) (2008).[4] It also stated that a Corrective Action Form would be returned to inmates who submitted inappropriate or incomplete Remedy Forms to advise them “of the appropriate steps the inmate needs to take in order to address the issue or to process and fully complete the request.” § 10A:1-4.4(g) (2008). As in the Handbook, Subchapter 4 directed inmates to place their completed Remedy Forms in “designated collection boxes that are located in specified areas of the correctional facility.” § 10A:1-4.4(f) (2008). Regarding time for review, Subchapter 4 stated, “Correctional facility staff shall review and respond to a request for information, issue, concern, complaint or problem presented by the inmate in a ‘Routine Inmate Request' or ‘Interview Request' within 30 calendar days unless the request is determined to be an urgent request or a request is determined to require further deliberation.” § 10A:1-4.5(e) (2008). The section regarding appeals stated that “[a]n inmate may appeal a response or finding received after exhausting the initial step of the Inmate Remedy System as indicated in N.J.A.C. 10A:1-4.5 above, ” and it described how to submit an administrative appeal, “within 10 calendar days from the issuance of the decision or finding of the correctional facility staff member.” § 10A:1-4.6(a)-(b) (2008).

         Subchapter 4 also included some provisions that are absent from the Handbook. For instance, it stated, “The comprehensive Inmate Remedy System to include a ‘Routine Inmate Request' and/or ‘Interview Request,' and an ‘Administrative Appeal' must be utilized and fully exhausted prior to an inmate filing any legal action regarding information requests, issues, concerns, complaints, or problems.” § 10A:1-4.4(d) (2008). It also contained other sections placing a greater emphasis on the prison administration's responsibility to provide inmates timely responses to their requests. For example, it provided that inmates should receive notice within 30 days of their filing if producing a response would take longer than 30 days. § 10A:1-4.4(i) (2008). It also placed responsibility upon the prison administrator and the remedy coordinator for ensuring that inmates received timely responses to their requests. See §§ 10A:1-4.7(a)(2), -4.8(a)(4)-(8) (2008).

         Romero's understanding, as well as that of various deposed NJSP staff and inmates, appears generally consistent with the guidelines contained in the Handbook. Romero testified during the evidentiary hearing that locked grievance boxes were placed outside of the North and West prison compounds and that inmates could, alternatively, give their completed Remedy Forms to a prison social worker. (ECF No. 86 at 24-25, 79.) He further testified as to his understanding that the prison generally had 30 days to respond to a Remedy Form. (Id. at 62.)

         Former remedy coordinator Santoro testified extensively at the hearing as to her understanding of the Handbook's remedy procedures, as well as her general practices. (See Id. at 82.) Santoro explained that she collected Remedy Forms from the locked boxes in each compound every weekday morning and then “sorted through them, we read through them, and put them in piles as to which department they would have been assigned to.” (Id. At 88, 94-97.) She explained that after the Remedy Forms were separated by department “they were put in alphabetical order, logged into the computer, and assigned a case number.” (Id.) She stated, however,

If there is something wrong with the form, it's returned to the inmate in its entirety along with a corrective action form indicating what the problem is. Like if there was more than one question, or there was something that required a form and not a remedy form, it would have been sent back to the inmate notifying him how to correct the remedy form for submission.

(Id. at 96-98.) Santoro noted that defective forms returned to the inmate were not logged in database, that she did not retain a copy of defective forms, and that there would be no record of the form having been submitted. (Id. at 97-99.) Santoro denied ever destroying or disregarding any Remedy Form and stated that all Remedy Forms received would be either logged and sent to the proper department or returned to the inmate with a corrective action form. (Id.)

         Santoro recounted,

As [Remedy Forms] came back from the departments completed --the inmate asks the question, the person from the department signs it, the supervisor signs the answer to the inmate's question. Then it comes back to us, to administration. . . . . At the end of that period, the inmate would get through regular mail his yellow copy with the department's response.

(Id. at 89.) Asked whether she had any method for keeping track of Remedy Forms that were due for a response, Santoro explained that “the [prison] administrator took a daily count of what was outstanding and what came in.” (Id. at 90-91.) Santoro also confirmed that Remedy Forms would not be accepted, and would be returned to the inmate for corrective action, if the inmate had submitted a form raising the same question or issue within the prior 30 days. (Id. at 104- 06.) Santoro stated that if NJSP staff failed to respond to a Remedy Form within the prescribed 30 days, the proper procedure was for the inmate to file another Remedy Form. (Id. At 106-07.) She explained,

So now the exhaustion is, if we receive it and we log it in on February the 4th, March the 4th he doesn't get an answer, that is also considered part of exhausting the remedies because he did not receive a response to the February 4th request. So there is two ways he can exhaust, not receiving any response within 30 days and also after his appeal.

(Id.) Thus, Santoro testified that a Remedy Form that produced no response from the prison was “not exhausted” if the inmate did not submit a second Remedy Form complaining about the failure to respond. (Id. at 107.)

         Santoro additionally noted that requests for medical treatment were not considered a proper issue for a Remedy Form and should instead have been made by way of the medical department's request-for-treatment form. (See Id. at 109.) Santoro testified that if she received a Remedy Form seeking medical treatment she “would send it to medical, and let them make a decision whether they need the inmate to fill out a form or not.” (Id. at 109-10.) If the medical department stated that the inmate needed to submit a request for treatment, Santoro stated she “would mark it in our database, that it was returned to the inmate on such and such a date with a response from medical.” (Id. at 110.)

         Santoro testified that the only explanation for a properly submitted Remedy Form that does not appear in the database is that it was returned to the inmate with a corrective action form. (Id. at 113, 116-17.) Santoro confirmed that it was possible that her office may have neglected to enter a date for the return of a remedy response to an inmate, but emphasized that she would not have permitted a proper Remedy Form to go unrecorded. (See Id. at 121-27.) She admitted, however, that she did not know how Remedy Forms were handled in 2012. (Id. at 127.) Importantly, Santoro conceded that she had received an unspecified number of Remedy Forms in 2013 and 2014 raising complaints that Remedy Forms were “being lost or misplaced.” (Id. at 139.)

         The parties also took the deposition of George Byrd (“Byrd”), who served as the NJSP remedy coordinator from to August 2011 until April 2012. (Certif. of Surinder K. Aggarwal, ECF No. 90-4, Ex. E, Tr. of Dep. of George Byrd (Dec. 6, 2017), at 8.) Byrd described the inmate remedy system as follows:

Well, there is an inmate remedy forms [sic] that are given to the prisoners, if they have a problem or a grievance, or they want something explained. All of these remedy forms go into a box, generally white boxes as I recall, and on a daily basis I would go down and get the remedy forms and look at them and figure out who is going to do what. Sometimes I would do it, if it was an open case, I'd give the inmate back the open form. If it was sometimes in like food service, I am familiar with the Food Service Supervisor I would ask him. Otherwise, I would give it to whatever area that was required to be answered. I would get it back and take it back to the inmate.

(Id.) Unlike Santoro, Byrd, who was remedy coordinator during the period when Romero claims to have filed his first three Remedy Forms, testified that he did not recall using any log or spreadsheet to keep track of the Remedy Forms he received. (Id. at 12.) In response to the question, “[H]ow was it that you tracked the remedy forms that were being collected?, ” Byrd responded, “I didn't.” (Id. at 12-13; see also Id. at 33-34.) Byrd also stated that an inmate who did not receive a response to a Remedy Form would raise the issue by submitting another Remedy Form. (Id. at 17.)

         Jose Ramos, an inmate paralegal who apparently helped Romero prepare two inmate Remedy Forms, also testified as to his understanding of the inmate remedy system. (Certif. of Surinder K. Aggarwal, ECF No. 90-4, Ex. D, Tr. of Dep. of Jose Ramos (July 27, 2017).) Regarding the system as it existed in 2012, he testified:

Around that time it was like remedy forms, and you will type it in or write it in what it is that you are complaining about and send it in to the administration, you will keep a copy for yourself, and then send the original to the administration and let them know.
You would put it in a box where they got a specific box where it says remedies. And you just -- when you go to the mess hall or even you can give it to the officer, you know, like or mail it in to the institutional channels, you can either do it like that too.
* * * *
[W]hen you walk around with like to go to the mess hall, they got a remedy box where you use to put the remedies in there, or going to the law library, they had a box where you can put it in there, or you coming up from the north compound or the south compound, they got their own boxes. Usually outside the wings is where they keep them.

(Id. at 13.)[5]

         C. Evidence Regarding Romero's Submission of Remedy Forms

         In his Complaint, Romero alleges that he filed three different Remedy Forms concerning Ahsan: (1) in response to Ahsan's directing him to walk, in contradiction of Shakir's instructions, on January 6, 2012; (2) in response to Ahsan telling him that “patients that file remedy forms do not receive surgeries in my prison” on January 13, 2012; and (3) on February 16, 2012, against both Ahsan and Gehrmann, after Ahsan again told him that because Romero complained he would not receive surgery. (ECF No. 1 ¶¶ 11, 15, 20.) Romero also referenced these Remedy Forms in his deposition testimony, as well as a Remedy Form he filed on May 20, 2012, complaining about delays in receiving surgery or a knee brace and a similar Remedy Form he filed on September 24, 2013. (See ECF No. 62-2 at ECF pp. 39, 50-53.)

         At the outset of the evidentiary hearing, the litigants submitted a stipulation reading,

The DOC database does not show the entry of any remedy forms, or grievances submitted by Michael Romero that are the subject of this hearing. Specifically, those claims have been submitted on or about January 6, 2012, January 14, 2012, February 16th, 2012, May 20, 2012, and September 24, 2013.

(ECF No. 86 at 4.)

         During the hearing, however, Romero testified to these five Remedy Forms in greater detail. He identified a Remedy Form, introduced as an exhibit, as the first grievance against Ahsan, explaining that he wrote out the grievance while he was in the infirmary and had Ramos, an inmate paralegal, type it for him. (ECF No. 86 at 8-12.) Romero testified that he gave the grievance to Ramos on January 6, 2012, that Ramos returned it to him within “a couple of days, ” and that Romero then submitted the Remedy Form in a grievance box on his way to Catholic services. (Id. at 11-21, 25.) The pertinent exhibit is a copy of Romero's Remedy Form bearing a date of January 6, 2012. (Certif. of Surinder K. Aggarwal, Ex. B, ECF No. 90-2, at ECF p. 10.) It reads,

Despite my severe knee injuries which prevent me from walking, and the orthopedist's orders not to force my knee, Dr. Abu Ahsan keeps directing me to walk every time he comes to check on me at the infirmary. He is being indifferent to my pain, suffering, and inability to comply with his requests. Dr. Ahsan's actions violate my state and federal constitutional rights. Therefore, today I refused to try to walk when directed to do so by Dr. Ahsan.

(Id.) The remaining portions of the form (for staff responses and any subsequent appeal) are blank. (See id.)

         Romero identified another Remedy Form as the second he filed against Ahsan. (ECF No. 86 at 21.) Romero testified that he gave Ramos a handwritten version of this grievance on January 14, 2012, and that Ramos thereafter returned a typed version. (Id.) Romero testified that he submitted this Remedy Form within the next couple of days or the next time he was allowed to make a “movement” within ...

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