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 SECOND CIRCUIT

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 SAMUEL ED DAVIS,

15 Plaintiff-Appellant,

16

17 –v.– 

18

19 DAVID L. BARRETT,

20

21 Defendant-Appellee.

22

23 

24

25 Before:

26 PARKER and WESLEY, Circuit Judges, CEDARBAUM, 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 VACATED AND REMANDED.

35
2

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 MARTIN 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 CURIAM:

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 judge
3

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 commissary
4

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 and
 The 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.2
party 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 has
7

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 denied 96 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 he
10

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 required
11

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 and
13

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 of
14

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 disciplinary
15

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. In
16

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 was
17

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 Sandin entailed 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. 

21
18

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 VACATED. 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.