The Honorable Miriam Goldman Cedarbaum, United * States District Court for the Southern District of New York, sitting by designation. 1 08-0479-cv Davis v. Barrett 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE S ECOND C IRCUIT 4 5 6 7 August Term, 2008 8 9 (Argued: June 23, 2009 Decided: August 7, 2009 10 Amended: August 13, 2009) 11 Docket No. 08-0479-cv 12 13 14 S AMUEL E D DAVI S , 15 Plaintiff-Appellant , 16 17 –v.– 18 19 DAVI D L. BARRETT , 20 21 Defendant-Appellee . 22 23 24 25 Before: 26 PARKER and WESLEY , Circuit Judges , C EDARBAUM , District Judge. * 27 28 Appeal from an order of the United States District 29 Court for the Western District of New York (Schroeder, 30 M.J. ), entered on January 15, 2008, granting summary 31 judgment in favor of Defendant on Plaintiff-Appellant’s 42 32 U.S.C. § 1983 due process claim. 33 34 VACATEDAND REMANDE D . 352 1 2 3 JOANNA R. VARON , Duane Morris, LLP, New York, NY 4 (Anthony J. Costantini, Kathrine A. Gehring, 5 of counsel ), for Plaintiff-Appellant . 6 7 MART IN A. HOTVET , Assistant Solicitor General 8 (Barbara D. Underwood, Solicitor General; 9 Andrea Oser, Deputy Solicitor General; Nancy 10 A. Spiegel, Senior Assistant Solicitor 11 General; and Michael J. Russo, of counsel ), 12 for Andrew M. Cuomo, Attorney General of the 13 State of New York, Albany, NY, for Defendant14 Appellee . 15 16 17 18 PER C URIAM : 19 Plaintiff-appellant Samuel Ed Davis, an inmate in the 20 custody of the New York State Department of Correctional 21 Services (“DOCS”) appeals from a January 15, 2008 decision 22 and order of United States Magistrate Judge Kenneth 23 Schroeder, Jr., granting summary judgment in favor of David 24 Barrett, a DOCS hearing officer, and dismissing Davis’s 25 action under 42 U.S.C. § 1983, seeking damages for the 26 alleged abridgment of his procedural due process rights by 27 Barrett in the course of assigning him to administrative 28 segregation for 55 days. Davis v. Barrett , No. 02-CR29 0545(Sr) (W.D.N.Y. Jan. 15, 2007). 30 On appeal, Davis argues that the magistrate judge3 1 conducted a flawed Sandin v. Conner , 515 U.S. 472 (1995), 2 analysis by failing to undertake a careful examination of 3 the actual conditions of Davis’s confinement and by failing 4 to compare them with those of the general prison population 5 and other segregated confinement. In so doing, Davis 6 argues, the magistrate judge erroneously concluded that 7 Davis had not properly alleged a liberty interest sufficient 8 to trigger due process protection. We hold that a dispute 9 of fact exists as to the actual conditions of Davis’s 10 confinement, and thus vacate the district court’s judgment 11 and remand for further fact-finding. 12 13 Background 14 On January 3, 2001, Davis, an inmate at the Elmira 15 Correctional Facility, received an administrative 16 segregation recommendation written by Sergeant Perry, 17 stating that Perry had received confidential information 18 from four separate sources in the previous two weeks 19 indicating that Davis was involved in fights and extortion. 20 The informants asserted that Davis used a weapon on occasion 21 and targeted weaker inmates from whom he extorted commissary4 1 products. During an administrative hearing held on January 2 16, 2001, with Barrett serving as the DOCS hearing officer, 3 Davis acknowledged having received Perry’s recommendation, 4 but denied the allegations. Barrett did not interview the 5 confidential informants, or Perry, but rather relied 6 exclusively on Perry’s report, explaining that he “had 7 confidence in [Perry’s] ability to assess their 8 credibility.” At the conclusion of the hearing, Barrett 9 advised Davis that he agreed with Perry’s recommendation, 10 and Davis was transferred to administrative segregation in 11 the Special Housing Unit (“SHU”), where he remained for 41 12 days, until he was transferred to the general population at 13 Attica Correctional Facility. 14 Davis timely filed an administrative appeal. See N.Y. 15 Comp. Codes R. & Regs. tit. 7, § 254.8. Barrett’s decision 16 was reversed on March 6, 2001, based on the absence of 17 testimony from the author of the recommendation (Perry), or 18 an assessment by Barrett of the reliability of the 19 confidential information. 20 Davis filed a pro se complaint on July 31, 2002, 21 pursuant to 42 U.S.C. § 1983, seeking compensatory andThe parties consented to proceed before a magistrate 1 judge. We review de novo a district court’s grant of summary 2 judgment. Aon Financial Prods. v. Societe Generale , 476 F.3d 90, 95 (2d Cir. 2007). Summary judgment is warranted when the evidence in the record “show[s] that there is no genuine issue as to any material fact and that the moving 5 1 punitive damages, alleging that his procedural due process 2 rights were violated by the administrative hearing . Barrett 3 moved for summary judgment, and Davis opposed the motion. 1 4 Magistrate Judge Schroeder held that Davis “failed to 5 demonstrate that the conditions of his administrative 6 confinement from January 3, 2001 through February 26, 2001, 7 created a constitutionally protected liberty interest.” He 8 noted that Davis was confined in administrative segregation 9 from January 3, 2001 through February 26, 2001, and that a 10 55-day period was insufficient to establish a liberty 11 interest in the absence of evidence of conditions more 12 onerous than normal for SHU. While the magistrate judge 13 acknowledged Davis’s allegations regarding atypical 14 conditions of confinement, he concluded that Davis had not 15 demonstrated a liberty interest sufficient to trigger due 16 process protection, and therefore granted summary judgment 17 in favor of Barrett. This appeal followed. 2party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). 6 1 Discussion 2 A. Exhaustion of Administrative Remedies 3 As a preliminary matter, we address Barrett’s argument 4 that Davis failed to exhaust his administrative remedies as 5 required by the Prison Litigation Reform Act (“PLRA”), 42 6 U.S.C. § 1997e et seq . Davis argues that he adequately 7 exhausted his administrative remedies by filing an 8 administrative appeal following his administrative hearing, 9 while Barrett argues that Davis was additionally required to 10 grieve separately the conditions of his confinement to 11 exhaust his prison remedies. We agree with Davis that his 12 appeal of the administrative hearing was sufficient to 13 exhaust all available administrative remedies as required by 14 the PLRA. 15 The PLRA provides that “[n]o action shall be brought 16 with respect to prison conditions under [§ 1983] . . . by a 17 prisoner confined in any jail, prison, or other correctional 18 facility until such administrative remedies as are available 19 are exhausted.” 42 U.S.C. § 1997e(a); see generally 20 Woodford v. Ngo , 548 U.S. 81 (2006). The Supreme Court has7 1 stated that the phrase “prison conditions” in the PLRA 2 refers to “all inmate suits about prison life, whether they 3 involve general circumstances or particular episodes, and 4 whether they allege excessive force or some other wrong.” 5 Porter v. Nussle , 534 U.S. 516, 532 (2002). There are 6 several reasons underlying the exhaustion requirement. 7 Exhaustion gives the DOCS “an opportunity to correct its own 8 mistakes with respect to the programs it administers before 9 it is haled into federal court.” Woodford, 548 U.S. at 89 10 (internal quotation marks and citation omitted). Further, 11 exhaustion promotes efficiency by requiring claims first to 12 be processed at the administrative level, often obviating 13 the need for parties to pursue the matter further in federal 14 court. Id. 15 Barrett claims that, under the PLRA, Davis was not only 16 required to appeal the administrative hearing, but also to 17 separately grieve the conditions of his confinement. But 18 Davis only seeks redress for his claim that the hearing 19 procedure violated his constitutional right to due process. 20 He contends he has done all that New York requires to 21 appraise prison officials of his “injury.”8 1 Under New York’s Inmate Grievance Program regulations, 2 Barrett’s handling of the hearing is non-grieveable. The 3 regulation provides that “[a]n individual decision or 4 disposition of any current or subsequent program or 5 procedure having a written appeal mechanism which extends 6 review to outside the facility shall be considered non7 grievable.” N.Y. Comp. Codes R. & Regs. tit. 7, § 8 701.3(e)(1). New York courts have made clear that “while 9 the grievance procedure cannot be used to challenge the 10 decision in a particular disciplinary proceeding which 11 results in a sanction, it may be used to challenge the 12 manner in which the sanction is imposed.” Johnson v. Ricks , 13 278 A.D.2d 559, 559 (3d Dep’t 2000), lv denied96 N.Y.2d 710 14 (2001) (citations omitted) (emphasis added). 15 Under New York’s regulations, Barrett’s alleged conduct 16 in presiding over the administrative hearing was properly 17 the subject of an appeal of the hearing, but could not be 18 the basis for an additional grievance. And while the PLRA 19 is not subject to re-interpretation by state law, the 20 availability of administrative remedies for prisoner 21 complaints is a decidedly state law matter. Davis raised,9 1 in his administrative appeal, his objections to Barrett’s 2 conduct, and could not further grieve the procedures of the 3 appeal under New York’s regulations. Davis’s successful 4 appeal of his administrative hearing constitutes exhaustion 5 under the PLRA for purposes of rendering his due process 6 claim ripe for adjudication in federal court. See Rivera v. 7 Goord, 253 F. Supp. 2d 735, 750 (S.D.N.Y. 2003); Sweet v. 8 Wende Corr. Facility, 253 F. Supp. 2d 492, 496 (W.D.N.Y. 9 2003). 10 Furthermore, this Court has previously indicated that a 11 prisoner may exhaust his administrative remedies for 12 segregated confinement by appealing the adverse hearing 13 determination. See Ortiz v. McBride , 380 F.3d 649, 653-54 14 (2d Cir. 2004). In Ortiz , this Court expressly agreed with 15 the parties that Ortiz exhausted his administrative remedies 16 with respect to his due process claim by successfully 17 appealing the hearing which resulted in his confinement. 18 Id. at 653. 19 Davis’s failure to grieve the conditions of his 20 confinement is no bar to his due process claim because the 21 conditions of his confinement are not the basis on which he10 1 alleges he suffered harm. In Ortiz the court distinguished 2 exhaustion for his due process claim from exhaustion for his 3 Eighth Amendment claim (the latter being a claim as to the 4 manner in which the sanctions were imposed). We noted that 5 Ortiz was required to grieve the conditions of his 6 confinement in order to exhaust his Eighth Amendment claim. 7 Id. at 654. Here, unlike in Ortiz , Davis makes no 8 claim—under the Eighth Amendment or otherwise—challenging 9 the conditions of his confinement directly. Rather, his 10 sole claim calls in to question Barrett’s conduct at the 11 administrative hearing. Thus, we find that Davis’s 12 administrative appeal was sufficient for purposes of PLRA 13 exhaustion. 14 The concerns underlying the PLRA’s exhaustion rule 15 support our conclusion that Davis’s administrative appeal 16 satisfied the exhaustion requirement. The administrative 17 appeal adequately apprised the DOCS officials of the conduct 18 of which Davis complained—the manner in which his 19 administrative hearing was conducted. See Woodford, 548 20 U.S. at 89. The allegations of atypical conditions are only 21 relevant to the instant appeal insofar as Davis was required11 1 to demonstrate such conditions to allege that he had a 2 liberty interest sufficient to trigger due process 3 protections during his administrative hearing. Davis 4 properly contested the manner in which Barrett conducted the 5 hearing with his administrative appeal, and he secured a 6 victory when Barrett’s decision was reversed because 7 “[Perry’s] report was based on investigation and 8 confidential information [and the] author did not testify 9 and no assessment of reliability was made on the 10 confidential information.” He was not required to file any 11 additional complaints with the agency to satisfy the PLRA’s 12 exhaustion requirements. See Ortiz , 380 F.3d at 653-54; 13 Abney v. McGinnis , 380 F.3d 663, 668-69 (2d Cir. 2004); 14 Marvin v. Goord, 255 F.3d 40, 43 & n.3 (2d Cir. 2001) (per 15 curiam). 16 B. Procedural Due Process 17 “A prisoner’s liberty interest is implicated by prison 18 discipline, such as SHU confinement, only if the discipline 19 ‘imposes [an] atypical and significant hardship on the 20 inmate in relation to the ordinary incidents of prison 21 life,’ . . ..” Palmer v. Richards , 364 F.3d 60, 64 (2d Cir.12 1 2004) (quoting Sandin v. Conner , 515 U.S. 472, 484 (1995) 2 (alteration in original)). “Factors relevant to determining 3 whether the plaintiff endured an ‘atypical and significant 4 hardship’ include ‘the extent to which the conditions of the 5 disciplinary segregation differ from other routine prison 6 conditions’ and ‘the duration of the disciplinary 7 segregation imposed compared to discretionary confinement.’” 8 Id. (quoting Wright v. Coughlin , 132 F.3d 133, 136 (2d Cir. 9 1998)). This Court noted in Colon v. Howard, 215 F.3d 227 10 (2d Cir. 2000), that restrictive confinements of less than 11 101 days do not generally raise a liberty interest 12 warranting due process protection, and thus require proof of 13 conditions more onerous than usual. Id. at 231-32 & n.5. 14 We have also stated that SHU confinements of fewer than 101 15 days “could constitute atypical and significant hardships if 16 the conditions were more severe than the normal SHU 17 conditions . . . or a more fully developed record showed 18 that even relatively brief confinements under normal SHU 19 conditions were, in fact, atypical.” Palmer , 364 F.3d at 20 65. 21 In determining whether Davis endured an atypical and13 1 significant hardship, the magistrate judge was required to 2 examine the conditions of confinement “in comparison to the 3 hardships endured by prisoners in general population, as 4 well as prisoners in administrative and protective 5 confinement, assuming such confinements are imposed in the 6 ordinary course of prison administration.” Welch v. 7 Bartlett , 196 F.3d 389, 392-93 (2d Cir. 1999). In making 8 such a determination, courts are required to examine the 9 actual circumstances of confinement, see Brooks v. DiFasi , 10 112 F.3d 46, 48-49 (2d Cir. 1997); Miller v. Selsky, 111 11 F.3d 7, 8-9 (2d Cir. 1997), and to identify with specificity 12 the facts upon which their conclusions are based, see Sealey 13 v. Giltner , 116 F.3d 47, 52 (2d Cir. 1997) (“[W]e have 14 indicated the desirability of fact-finding before 15 determining whether a prisoner has a liberty interest in 16 remaining free from segregated confinement.”) (citations 17 omitted); Frazier , 81 F.3d at 317. This Court has stated 18 that “[d]isputes about conditions may not be resolved on 19 summary judgment.” Palmer , 364 F.3d at 65 (citing Wright , 20 132 F.3d at 137-38). Only when the conditions are 21 uncontested may a district court resolve the issue of14 1 atypicality of confinement as a matter of law. Id. 2 In this case, the magistrate judge found that Davis’s 3 confinement did not rise to the level required to implicate 4 a liberty interest because he had failed to present evidence 5 demonstrating atypical or onerous conditions. Specifically, 6 the court based its conclusion on (1) the fact that Davis’s 7 conditions in administrative segregation were less onerous 8 than inmates in SHU for disciplinary confinement because in 9 administrative segregation Davis was allowed personal 10 property and access to monthly commissary purchases; and (2) 11 the fact that there was no evidence of complaints made by 12 Davis about unhygienic conditions. However, the magistrate 13 judge’s decision failed to presume the truthfulness of 14 Davis’s allegations concerning the conditions of his 15 confinement (as opposed to the conditions generally mandated 16 by prison regulations), and did not adequately compare those 17 conditions to the conditions in the general population and 18 other segregated confinement. 19 There are a number of factual disputes about the 20 conditions of Davis’s confinement. Barrett asserted that 21 all SHU inmates were subject to the conditions outlined in 22 the prison regulations and directives governing disciplinary15 1 SHU segregation. Namely, Barrett stated that, in accordance 2 with regulations, all SHU inmates are confined to their 3 cells except for one hour of exercise daily, a minimum of 4 two showers a week, unlimited legal visits, and one non5 legal visit per week, and inmates in SHU are permitted books 6 and periodicals, may possess personal property, are allowed 7 to participate in cell study programs, and are permitted to 8 make commissary purchases on a monthly basis. Affidavits 9 submitted by DOCS officers who worked at the SHU during the 10 time of Davis’s confinement corroborate that these policies 11 were in operation then, and one avers that no deviations 12 from the required hygienic standards occurred. In contrast, 13 Davis asserted in his sworn affidavit that he was kept in 14 his cell twenty-four hours per day, that he was denied 15 participation in any cell study program, and that he was not 16 given commissary privileges. Davis further asserted that he 17 was subjected to unhygienic conditions, specifically 18 alleging that (1) his cell had no furniture, and thus all 19 items, including his clothes and food tray, had to be kept 20 on the floor; (2) that his mattress was “infected” with body 21 waste; and (3) that his cell was subject to “daily” 22 flooding, and feces and urine thrown by other inmates. In16 1 our view, an issue of fact exists as to the actual 2 conditions of Davis’s confinement. 3 Finally, the magistrate judge failed to conduct a 4 thorough comparison of the alleged conditions of Davis’s 5 confinement with those of the general population. See 6 Welch , 196 F.3d at 393 (stating that a court must assess the 7 hardships asserted by a SHU inmate “in comparison to the 8 hardships endured by prisoners in general population”). 9 Even though Davis’s confinement was relatively short—lasting 10 at most 55 days—this Court has required a “detailed factual 11 record,” unless “the period of time spent in SHU was 12 exceedingly short—less than [] 30 days . . . —and there [is] 13 no indication that the plaintiff endured unusual SHU 14 conditions.” See Palmer , 364 F.3d at 65-66. Here, the 15 record lacks any evidence of the conditions for other 16 inmates in administrative confinement, or in the general 17 prison population. To the extent that the magistrate judge 18 conducted any comparison of conditions, he simply noted 19 that, based upon the regulations, the conditions in 20 administrative segregation were no more severe than 21 disciplinary SHU conditions. However, this finding was17 1 insufficient under the requirements of Welch . A detailed 2 factual record containing information as to the actual 3 conditions in both administrative segregation and for the 4 general population is necessary for the court to make the 5 type of comparison required. See Brooks , 112 F.3d at 49 6 (“The [ Sandin ] Court did not suggest, however, that 7 regulations permitting lengthy administrative confinement 8 compel the conclusion that extended disciplinary confinement 9 is necessarily compatible with due process. To the 10 contrary, the decision in Sandinentailed careful 11 examination of the actual conditions of the challenged 12 punishment compared with ordinary prison conditions. . . . 13 [The] court must examine the specific circumstances of the 14 punishment.”). 15 Because the conditions of Davis’s confinement are in 16 dispute, and the factual record is not fully developed as to 17 the conditions either in his case, or in the case of the 18 general population, we do not reach the ultimate issue of 19 whether, if Davis has demonstrated a liberty interest, the 20 administrative hearing violated his rights to due process. 2118 1 Conclusion 2 The district court’s order of January 15, 2008, 3 granting summary judgment in favor of Defendant on 4 Plaintiff-Appellant’s 42 U.S.C. § 1983 due process claim is 5 hereby VACATE D . We REMAND for further fact-finding on the 6 issue of the actual conditions of Davis’s confinement in 7 comparison to ordinary prison conditions. On remand, the 8 district court may wish to hold a trial on the issue of 9 Davis’s liberty interest if it so chooses. We note that a 10 determination that Davis was not subjected to atypical 11 conditions giving rise to a liberty interest would obviate 12 the need to reach the ultimate issue of whether the process 13 employed during his administrative hearing complied with the 14 requirements of due process.