SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be AFFIRMED IN PART (as to Counts Four through Seventeen of the Complaint), VACATED IN PART (as to Counts One, Two, and Three of the Complaint), AND REMANDED TO THE DISTRICT COURT.

Plaintiff-appellant David Johnston appeals from a judgment of the District Court granting summary judgment to defendants on all counts of a seventeen-count complaint (the "Complaint"). We assume the parties' familiarity with the underlying facts and the procedural history.

This appeal arises out of three incidents that allegedly occurred when plaintiff was being held at the Genesee County Jail: his placement in isolation in February and March of 2005 while he was awaiting trial on burglary charges (Counts One and Two, respectively), and an alleged attack on plaintiff by a correctional officer in July 2005, shortly after his sentence was pronounced (Count Three).1 Plaintiff alleges in Counts One and Two that the stints in isolation, during which he was allegedly neither informed of the reason for his placement in isolation nor given an opportunity to challenge that placement, violated his right to due process of law. He also argues in Count Three that the alleged assault by the correctional officer, which occurred less than two days before plaintiff was to be transferred into State custody to begin serving his sentence, violated his Eighth Amendment right to be free from cruel and unusual punishment.

The proceedings in the District Court began when the plaintiff filed, pro se, a seventeen-count complaint alleging the above and other violations of his rights. After a period of discovery, defendants moved for summary judgment, which was granted by the District Court. The District Court found that Sandin v. Conner, 515 U.S. 472 (1995), operated to bar plaintiff's due process claim with regard to Count One, as "there [was] no indication that [the placement into isolation] amounted to an `atypical and significant hardship' compared to the burdens of ordinary jail or prison confinement." Johnston v. Maha, 584 F.Supp.2d 612, 615 (W.D.N.Y. 2008) ("Johnston I") (order granting summary judgment to defendants). The District Court further found that plaintiff had failed properly to exhaust the claims asserted in Counts Two and Three as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), but that even if he had properly exhausted those counts, they would fail on the merits. Johnston I, 584 F. Supp. at 614, 617.

Plaintiff argues on appeal that (1) the District Court applied an incorrect standard of law when it applied Sandin's "atypical and significant hardship" test to Count One and, in the alternative, Count Two, rather than the due process standard that is applicable to pretrial detainees; and (2) the District Court erred by finding that Counts Two and Three were unexhausted within the meaning of the PLRA.

DISCUSSION

A. Counts One and Two: The Due Process Standard

The District Court erred in applying Sandin v. Conner, a case applying the Eighth Amendment to claims brought by convicted prisoners, to Johnston, who in February and March 2005 was a pretrial detainee. See Benjamin v. Fraser, 264 F.3d 175, 188-89 (2d Cir. 2001) (holding that Sandin v. Conner does not apply to pretrial detainees); see also Sandin, 515 U.S. at 484-85 (distinguishing the due process rights of pretrial detainees from those of convicted prisoners). The court should instead have evaluated Count One (and, putting aside the exhaustion issue for the moment, Count Two2) under the Fourteenth Amendment, which governs the due process rights of pretrial detainees. See Benjamin, 264 F.3d at 190 ("A detainee's interest in freedom from unjustified infliction of pain and injury is . . . substantial.").

We decline to resolve the Fourteenth Amendment issue in the first instance. See United States v. Brennan, 650 F.3d 65, 125 (2d Cir. 2011); Cerrone v. Brown, 246 F.3d 194, 203 (2d Cir. 2001). Although it seems not implausible to us that these claims will survive summary judgment, the question presented here—whether defendants are entitled to summary judgment on plaintiff's argument that he was twice placed in isolation as a form of punishment and was each time denied the opportunity to challenge his placement—must first be answered by the District Court. We vacate the District Court's ruling as to Count One and its alternative merits evaluation of Count Two and remand for the application of the correct legal standard to both counts.

B. Count Two: Exhaustion

The District Court erred when it determined that Count Two had not been properly exhausted. The plaintiff submitted a "Grievance Tracking Form"—which he received from the Genesee County Jail through the discovery process—purporting to demonstrate that he had properly exhausted his administrative remedies as to certain claims. Without explanation, the District Court found that plaintiff had not demonstrated proper exhaustion of Count Two. Defendants on appeal defend the District Court's decision, but do not specify any steps of the grievance process that were not properly followed by the plaintiff. Instead, they simply claim that plaintiff failed to provide copies of any follow-up to the initial rejection of his grievance.

The District Court's finding on summary judgment that the plaintiff had not exhausted Count Two was erroneous. To the contrary, the form submitted by the plaintiff, which showed the dates on which the plaintiff carried out each stage of the grievance process, was sufficient to raise an issue of material fact as to whether he had exhausted his remedies.3 The defendants appear not to have called into question the credibility of the document they themselves provided, nor do they give any explanation for their contention that the document does not show proper exhaustion. The defendants have the burden of showing that there is no genuine issue of material fact as to exhaustion that would preclude summary judgment. The court's conclusion that the document does not show proper exhaustion fails to properly allocate the burden of proof and must be reversed.4

C. Count Three: Exhaustion and Merits

The District Court erred when it found that the PLRA barred the plaintiff from pursuing Count Three. To the contrary, the plaintiff was excused from the requirement of PLRA exhaustion as to Count Three, because the grievance process became unavailable to him when he was moved to a prison facility in a different jurisdiction less than two days after the alleged assault.5 See Rodriguez v. Westchester Cnty. Jail Corr. Dep't, 372 F.3d 485, 488 (2d Cir. 2004); see generally Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004).6 The PLRA does not require prisoners to reach across jurisdictional lines to take advantage of grievance systems that are no longer available to them. See Rodriguez, 372 F.3d at 488. Therefore, in such situations, courts are entitled to excuse the exhaustion requirement. We do so here.

Because there are several clearly material issues of disputed fact regarding the events that gave rise to Count Three,7 we reverse the District Court's grant of summary judgment on this count and remand for a trial on the merits.

CONCLUSION

We have considered plaintiff's remaining arguments and find them to be meritless. Accordingly, we AFFIRM the November 7, 2008 judgment of the District Court as to Counts Four through Seventeen, VACATE the judgment with regard to Counts One, Two, and Three, and REMAND the cause for further pretrial and/or trial proceedings under the correct legal standard with respect to Counts One and Two, and for trial on Count Three.