Lev v. Thoms, Lev v. Lewin ( 2021 )

20-352, 20-386
Lev v. Thoms, Lev v. Lewin
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of July, two thousand twenty-one.
PRESENT:
AMALYA L. KEARSE,
SUSAN L. CARNEY,
Circuit Judges. *
_________________________________________
EDWARD LEV,
Plaintiff-Appellant,
v. No. 20-352
MATTHEW THOMS, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES AS SUPERINTENDENT OF
FIVE POINTS CORRECTIONAL FACILITY,
ANTHONY J. ANNUCCI, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES AS ACTING COMMISSIONER
OF THE NEW YORK DEPARTMENT OF
CORRECTIONS AND COMMUNITY SUPERVISION,
Defendants-Appellees,
*
Judge Robert A. Katzmann, who was a member of the panel, died after the court conducted oral
argument in this case. This appeal is decided by the two remaining members of the panel, who are in
agreement. See 2d Cir. IOP E(b).
JOHN DOE 1, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITIES AS DEPUTY COMMISSIONER OF THE
NEW YORK DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, JOHN DOE 2, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITIES AS UNIT
SUPERVISOR FOR THE FIVE POINTS CORRECTIONAL
FACILITY,
Defendants. †
_________________________________________
EDWARD LEV,
Plaintiff-Appellant,
v. No. 20-386
DONNA LEWIN, IN HER INDIVIDUAL AND OFFICIAL
CAPACITIES AS SUPERINTENDENT OF HUDSON
CORRECTIONAL FACILITY, ANTHONY J. ANNUCCI,
IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS
ACTING COMMISSIONER OF THE NEW YORK
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION,
Defendants-Appellees,
JOHN DOE 1, IN HIS INDIVIDUAL AND OFFICIAL
CAPACITIES AS DEPUTY COMMISSIONER OF THE
NEW YORK DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, JOHN DOE 2, IN HIS
INDIVIDUAL AND OFFICIAL CAPACITIES AS UNIT
SUPERVISOR FOR THE HUDSON CORRECTIONAL
FACILITY ADOLESCENT OFFENDER SEGREGATION
UNIT,
Defendants.
_________________________________________
†
The Clerk of Court is directed to amend the caption to conform to the above.
2
FOR APPELLANT: DALLAS S. LEPIERRE, KATE CANTOLINA
(Mario B. Williams, on the brief), NDH
LLC, Atlanta, GA.
FOR APPELLEES: SARAH L. ROSENBLUTH, Assistant
Solicitor General (Jeffrey W. Lang, Deputy
Solicitor General, on the brief), for Barbara
D. Underwood, Solicitor General, New
York State Office of the Attorney
General, Albany, NY.
Appeal from judgments of the United States District Court for the Northern District
of New York (Sannes, J.).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal from the judgment entered on December
23, 2019, in No. 20-352 is DISMISSED, and the judgment entered on January 8, 2020 (No.
20-386), is AFFIRMED.
Edward Lev brought these § 1983 actions challenging aspects of his placement in
solitary confinement, first at Hudson Correctional Facility, Lev v. Lewin, No. 19-cv-61
(BKS/DJS), 2020 WL 95432 (N.D.N.Y. Jan. 8, 2020) (the “Hudson Action”), and then at
Five Points Correctional Facility, Lev v. Thoms, No. 19-cv-1387 (BKS/CFH), 2019 WL
7067045 (Dec. 23, 2019) (the “Five Points Action”). See 42 U.S.C. § 1983. In both actions,
Lev alleged that the conditions of his confinement violated his Eighth Amendment right to
be free from cruel and unusual punishment. The district court granted summary judgment to
defendants in the Hudson Action and dismissed Lev’s amended complaint in the Five Points
Action after determining in each case that Lev failed to exhaust his administrative remedies
as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), before
bringing suit. Lev timely appealed.
Lev was released from incarceration before oral argument was conducted in these
consolidated appeals. The parties agree that his appeal in the Five Points Action (No. 20-
352), in which Lev sought only declaratory and injunctive relief, is now moot. We therefore
DISMISS that appeal. Lev maintains his appeal in the Hudson Action (No. 20-386),
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however, in which he sought punitive damages in addition to injunctive and declaratory
relief. He urges that the district court erred in granting summary judgment to defendants
based on its determination that Lev failed to exhaust administrative remedies. We assume
the parties’ familiarity with the underlying facts, procedural history, and arguments on
appeal, and refer to them only as necessary to explain our decision in No. 20-386 to
AFFIRM.
We review de novo the district court’s grant of summary judgment. Hubbs v. Suffolk
County Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015). The district court ruled that Lev failed to
exhaust his administrative remedies because he did not file a grievance challenging the
conditions of his confinement at Hudson Correctional Facility. Lev counters first that, under
applicable regulations, his complaint about the conditions of his confinement was not
subject to the grievance process because he was placed in solitary confinement as the result
of a disciplinary proceeding.
Lev’s argument relies on a misconstruction of an inmate grievance program
regulation promulgated by the New York State Department of Corrections and Community
Supervision. The applicable regulation provides that “an individual decision or disposition
resulting from a disciplinary proceeding . . . is not grievable.” N.Y. Comp. Codes R. & Regs.
tit. 7, § 701.3(e)(2). Contrary to Lev’s argument on appeal, this regulation does not bar
inmates from filing grievances about conditions of a confinement that are the result of a
disciplinary proceeding; instead, as the district court concluded, it bars inmates from filing
grievances as a means of appealing the outcome of the disciplinary proceeding itself. Cf. Davis
v. Barrett, 576 F.3d 129, 132 (2d Cir. 2009) (“[W]hile the grievance procedure cannot be used
to challenge the decision in a particular disciplinary proceeding which results in a sanction, it
may be used to challenge the manner in which the sanction is imposed.” (internal quotation
marks and emphasis omitted)). Lev presents no persuasive argument in support of his
strained reading of § 701.3(e)(2). The district court did not err in its interpretation.
Lev argues in the alternative that the grievance process prescribed by § 701.3(e)(2)
was so opaque as to be unavailable to him, and for this independent reason, he was not
required to exhaust his remedies. In support, he points to the Supreme Court’s ruling that,
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where a grievance procedure is “so opaque that it [is], practically speaking, incapable of use,”
it will be treated as “unavailable” to the inmate, and in such circumstances, the PLRA does
not require exhaustion. Ross v. Blake, 136 S. Ct. 1850, 1859 (2016). But we agree with the
district court that § 701.3(e)(2) is not “opaque” under Ross. Lev’s argument to the contrary is
premised on his implausible reading of § 701.3(e)(2), rejected above. 1 The district court
therefore did not err in granting summary judgment to defendants in the Hudson Action
based on Lev’s failure to exhaust his administrative remedies.
* * *
We have considered Lev’s remaining arguments on appeal and find in them no basis
for reversal. The judgment of the district court in the Hudson Action, No. 20-386, is
AFFIRMED, and Lev’s appeal in the Five Points Action, No. 20-352, is DISMISSED as
moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
1
Even if § 701.3(e)(2) were subject to reasonable competing interpretations, the “Note” included in
§ 701.3(e) lends clarity to the text: it instructs that “[i]f an inmate is unsure whether an issue is
grievable, he/she should file a grievance and the question will be decided through the grievance
process.” If Lev questioned whether his complaint was grievable, then § 701.3(e) gave him clear
instructions for answering his question.
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