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).
 

2

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.
 

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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.