
    Kiro Raheam TIMMONS, Plaintiff-Appellant, v. PEREIRO, Captain, Shield # 1151, Nowinski, Correctional Officer, Shield # 14852, Paul Faulk, Director of Operations of Saint Barnabas Hospital and Beckford, Physicians Assistant, Acting in Concert and Individual Capacities, Defendants-Appellees.
    Docket No. 03-7190.
    United States Court of Appeals, Second Circuit.
    Feb. 18, 2004.
    John Boston, The Legal Aid Society, Prisoners’ Rights Project, New York, New York (Daniel L. Greenberg and Mary Lynne Werlwas, of counsel), for Appellant.
    Ellen Ravitch, Assistant Corporation Counsel, New York, New York (Michael A Cardozo, Corporation Counsel of the City of New York, and Stephen J. McGrath, of counsel), for Appellees.
    PRESENT: JACOBS, SACK, and RAGGI, Circuit Judges.
   SUMMARY ORDER

Kiro Raheam Timmons appeals from the judgment entered in the United States District Comb for the Southern District of New York (Preska, J.), dismissing his prisoner rights suit for failure to exhaust administrative remedies. Timmons’s complaint asserted various claims against Captain Pereiro and Officer Nowinski (“the correctional defendants”) and Director Faulk and Physician’s Assistant Beckford (“the medical defendants”), employees of St. Barnabas Hospital. Familiarity is assumed as to the facts, the procedural context, and the specification of appellate issues.

“[A] prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983”; however, “exhaustion is not jurisdictional.” Richardson v. Goord, 347 F.3d 431, 434 (2d Cir.2003) (per curiam) (citing 42 U.S.C. § 1997e(a)). “[A] court is ‘obligated to establish the availability of an administrative remedy from a legally sufficient source before it may dismiss [aprisoner’s] complaint....’” Mojias v. Johnson, 351 F.3d 606, 609 (2d Cir.2003) (quoting Snider v. Melindez, 199 F.3d 108, 114 (2d Cir.1999) (noting that a party’s admission is not a “legally sufficient source”)). Determining “[w]hether an administrative remedy was available ... and whether such a remedy was applicable to the grievance ... are, or inevitably contain, questions of law.’ ” Id. at 608-09 (quoting Snider, 199 F.3d at 113-14). Accordingly, we review de novo a district court’s dismissal of a prisoner’s suit for failure to exhaust administrative remedies. Id. at 609.

The parties agree on appeal, consistent with the governing law, that:

1. The district court properly dismissed the medical care claim against the correctional defendants because New York City’s Inmate Grievance Program was available and applied, and Timmons failed to exhaust his administrative remedies thereunder. This portion of the district court’s judgment is therefore affirmed.

2. The district court’s dismissal of the assault claim against the correctional defendants was improper because New York City’s Inmate Grievance Program expressly excludes such a claim, and Timmons need not exhaust inapplicable administrative remedies. This portion of the district court’s judgment is therefore vacated.

3. The district court improperly dismissed the claim against the medical defendants because it did not identify an available and applicable administrative remedy that Timmons failed to exhaust. This portion of the district court’s judgment is therefore vacated.

The parties disagree, however, as to whether [1] the defendants may argue on remand that a proper administrative remedy exists pursuant to New York City’s Department of Health’s (“DOH”) procedures and that Timmons has failed to exhaust this remedy or [2] defendants waived this particular defense by failing to present it in their initial Rule 12 motion for dismissal. Accordingly, on remand, the district court is to “determine (1) whether [Timmons] properly exhausted his administrative remedies with regard to [this] claim[ ] ..., or [ (2) ] whether the [medical] defendants waived compliance with the exhaustion requirement by failing to raise it” in regard to the administrative remedies available under DOH procedures. Davis v. New York, 316 F.3d 93, 101 (2d Cir.2002).

For the foregoing reasons, the judgment of the district court is hereby AFFIRMED in part and VACATED in part, and the case is REMANDED for further proceedings consistent with this order.  