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 COU RT, 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 2 2 nd da y of July , two thousand twenty

- one

.
PRESENT: A MALYA L

. K EARSE , S USAN L. C ARNEY , Circuit Judges

. *

_________________________________________
E DWARD L EV , Plaintiff

- Appellant
,

v. No. 20

- 352

M ATTHEW T HOMS , IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS S UPERINTENDENT OF F IVE P OINTS C ORRECTIONAL F ACILITY , A NTHONY J. A NNUCCI , IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS A CTING C OMMISSIONER OF THE N EW Y ORK D EPARTMENT OF C ORRECTIONS AND C OMMUNITY S UPERVISION , Defendant s

-

Appell ees ,

* Judge Robert A. Katzmann, who was a member of the panel, died after the court conducted oral argument in this case. Th is appeal is decided by the two remaining members of the panel, who are in agreement. See 2d Cir. IOP E(b)

.2 J OHN D OE 1, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS D EPUTY C OMMISSIONER OF THE N EW Y ORK D EPARTMENT OF C ORRECTIONS AND C OMMUNITY S UPERVISION , J OHN D OE 2, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS U NIT S UPERVISOR FOR THE F IVE P OINTS C ORRECTIONAL F ACILITY , Defendant s

. †

_________________________________________
E DWARD L EV , Plaintiff

- Appellant
,

v. No. 20

- 386

D ONNA L EWIN , IN HER INDIVIDUAL AND OFFICIAL CAPACITIES AS S UPERINTENDENT OF H UDSON C ORRECTIONAL F ACILITY , A NTHONY J. A NNUCCI , IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS A CTING C OMMISSIONER OF THE N EW Y ORK D EPARTMENT OF C ORRECTIONS AND C OMMUNITY S UPERVISIO N , Defendant s

-

Appell ees , J OHN D OE 1, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS D EPUTY C OMMISSIONER OF THE N EW Y ORK D EPARTMENT OF C ORRECTIONS AND C OMMUNITY S UPERVISION , J OHN D OE 2, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS U NIT S UPERVISOR FOR THE H UDSON C ORRECTIONAL F ACILITY A DOLESCENT O FFENDER S EGREGATION U NIT , Defendant s

.

_________________________________________

† The Cl erk of Court is directed to amend the caption to conform to the above.3 FOR APPELLANT: D ALLAS S. L E P IERRE , K ATE C ANTOLINA ( Mario B. Williams, on the brief ), NDH LLC, Atlanta, GA.

FOR APPELL EES : S ARAH L. R OSENBLUTH , 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 judgment s 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 th ese § 1983 action s challenging aspects of his placement in solitary confinement , first at Hudson Correctional Facility
, Lev v. L ewin
, 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 allege d that the conditions of his confinement v iolated 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 t hat 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 thes e 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)
,4 however, in which he sought punitive damages in addition to injunctive and declaratory
relief. He ur g es that the district court erred in granting summary judgment to defendants
based on its determination that Lev fail ed 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 distr ict 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 o f 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 re sult 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 indiv idual 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, t his regulation does not bar
inmates from fil ing grievances about condition s of a confinement that are the result of a disciplinary proceeding; instead, as the district court concluded
, it bars inmates from fil ing 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 sanct ion 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 grievan ce 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, h e points to t he Supreme Court ’s ruling that,5 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 i n such circumstances, the PLRA does not require exhaust ion. R oss 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 basi s for reversal. T he 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 ans wering his question.