21-2997

Moreau v. Ellsworth

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 16th day of May, two thousand twenty-three.

PRESENT:

DENNIS JACOBS,

RICHARD J. SULLIVAN,

MARIA ARAÚJO KAHN,

Circuit Judges. ____________________________________________________________

EMILE MOREAU,

Plaintiff-Appellant,

v. No. 21-2997

SHERRY ELLSWORTH, Mailroom 

Supervisor, Eastern NY Correctional 

Facility, JUSTIN VON DER HEYDE,

Correction Officer, Eastern NY 

Correctional Facility, ANTHONY BLACK,

Grievance Supervisor, Eastern NY 

Correctional Facility,

Defendants-Appellees.

∗

____________________________________________________________

∗ The Clerk of Court is respectfully directed to amend the official case caption as set forth above.
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For Plaintiff-Appellant: Emile Moreau, pro se, Brooklyn, 

NY.

For Defendants-Appellees: Barbara D. Underwood, Solicitor 

General, Jeffrey W. Lang, Deputy 

Solicitor General, Alexandria 

Twinem, Assistant Solicitor 

General, for Letitia James, 

Attorney General of the State of 

New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Northern

District of New York (David N. Hurd, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED.

Emile Moreau, proceeding pro se, appeals from the district court’s grant of 

summary judgment on his First and Eighth Amendment claims in favor of three 

Eastern NY Correctional Facility (”Eastern”) officials – Mailroom Supervisor 

Sherry Ellsworth, Correction Officer Justin von der Heyde, and Grievance 

Supervisor Anthony Black (together, “Defendants”). We review a district court’s 

grant of summary judgment de novo, see Kee v. City of New York, 12 F.4th 150, 

157–58 (2d Cir. 2021), and will affirm when there is “no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law,” Fed. R. 
3

Civ. P. 56(a). We assume the parties’ familiarity with the underlying facts, 

procedural history, and issues on appeal.

Prisoners have a First Amendment right of access to the courts. Lewis v. 

Casey, 518 U.S. 343, 346 (1996). In assessing whether a state has violated that right

– here, by allegedly interfering with legal mail – we ask whether the plaintiff has 

demonstrated an “actual injury,” that is, whether he has lost an opportunity to 

pursue a nonfrivolous legal claim. Id. at 349; see also Christopher v. Harbury, 536 

U.S. 403, 414–15 (2002). Of course, as with many rights in prison, courts must 

exhibit “due regard for the inordinately difficult undertaking that is modern 

prison administration.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (internal 

quotation marks omitted). The alleged unconstitutional practice therefore must 

also be part of a pattern and practice of interfering with incoming legal mail. See 

Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (explaining that an “inmate must 

show that prison officials regularly and unjustifiably interfered with the incoming 

legal mail” (internal quotation marks omitted)).

Here, Moreau has offered no evidence to support his claim that Ellsworth 

interfered with his legal mail in violation of the First Amendment. First, Moreau 

alleges that Ellsworth failed to deliver a letter from the Appellate Division of the 
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New York State Supreme Court, resulting in the dismissal of his appeal for failure 

to timely perfect. But while Moreau makes much of the fact that this letter was 

never delivered to him, Eastern’s mailroom logbook shows that no such letter was 

ever received, and Moreau has offered nothing to suggest that the logbook was 

tampered with or altered. Second, Moreau contends that Ellsworth tried to cover 

up the tracks of her scheme by forging his signature for mail she did not deliver. 

This theory likewise lacks support in the record, as the signatures in question 

perfectly match others that Moreau does not dispute are his. Third, Moreau

insists that Ellsworth never mailed his motion seeking leave to file a second or 

successive habeas petition and instead returned it to him a month later in a 

different envelope. The return envelope, however, was marked as “FOUND 

LOOSE IN MAIL” by the U.S. Postal Service, demonstrating that the letter was in 

fact mailed. Fourth, and finally, Moreau complains that Ellsworth interfered with 

a so-called “complaint” he sent to the U.S. Supreme Court and a letter he received 

in response. Yet Moreau nowhere explains how the Supreme Court’s failure to

address his complaint on the merits supports the inference that Ellsworth removed 

the complaint from the outgoing mail and replaced it with her “own papers.” 

Moreau Br. at 7. Nor has he demonstrated how the delay in the delivery of the 
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Supreme Court’s letter – which lasted for no more than a few days – resulted in an 

“actual injury” of constitutional significance. See Goord, 320 F.3d at 351–52 (“Mere 

delay in being able to work on one’s legal action or communicate with the courts 

does not rise to the level of a constitutional violation.” (internal quotation marks 

omitted)). Therefore, because Moreau has failed to produce evidence to support 

his claims of mail interference, we affirm the district court’s decision dismissing 

his First Amendment claim.1

Moreau also contends that Defendants violated his Eighth Amendment 

rights when they ordered him to walk up stairs despite his knee condition, which 

caused him to collapse, fall down the stairs, and injure his head, neck, shoulder, 

and legs. But under the Prison Litigation Reform Act, prisoners may not bring 

any action “with respect to prison conditions under . . . Federal law, . . . until such 

administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 

This exhaustion requirement “applies to all inmate suits about prison life, whether 

they involve general circumstances or particular episodes, and whether they allege 

1 While Moreau also alleged First Amendment claims of retaliation, he has forfeited those claims 

by failing to challenge the district court’s dismissal of them in his opening brief. See LoSacco v. 

City of Middletown, 71 F.3d 88, 93 (2d Cir. 1995) (explaining that appellate courts “need not 

manufacture claims of error for an appellant proceeding pro se, especially when he has raised an 

issue below and elected not to pursue it on appeal”).
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excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). 

To exhaust administrative remedies, an inmate must avail himself of “all steps that 

the [prison-grievance system] holds out, and [do] so properly (so that the 

[prison-grievance system] addresses the issues on the merits).” Woodford v. Ngo, 

548 U.S. 81, 90 (2006) (internal quotation marks omitted).

In New York, there is a three-tiered process for adjudicating inmate 

grievances. First, an inmate must file a grievance with the facility’s Inmate 

Grievance Resolution Committee (“IGRC”) within twenty-one days of the 

incident. N.Y. Comp. Codes R. & Regs. (“NYCRR”) tit. 7, § 701.5(a)(1). If the 

IGRC renders an adverse decision, the inmate may appeal to the superintendent 

of the facility, who then has twenty days to respond. Id. § 701.5(c)(3)(i). The 

prisoner may appeal an adverse decision of the superintendent by submitting a 

Form 2133 to the Central Office Review Committee (“CORC”) within seven days 

of the superintendent’s decision; the CORC, in turn, must render a decision within 

thirty days of receiving the appeal. Id. § 701.5(d)(1)(i), (3)(ii). Matters not 

decided within the statutory time limits “may be appealed to the next step.” Id.

§ 701.6(g)(2).
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Here, the undisputed facts demonstrate that Moreau failed to follow these 

procedures. On June 8, 2017, Grievance Supervisor Black sent Moreau a letter 

stating that the IGRC had received his complaint concerning the stair incident that 

occurred on May 8, 2017. The letter explained that the complaint was untimely,

and that Moreau was thus required to file a request for an extension of time. 

While Moreau argues that the “complaint” was in fact timely, it is undisputed that

Moreau appealed Black’s letter to the CORC without having received a decision 

from the superintendent of the facility and before the window for the 

superintendent to respond had closed. Moreau’s appeal to the CORC was thus 

in violation of New York’s inmate-grievance process. Indeed, Moreau’s own 

papers indicate that he skirted the proper procedures when, on June 14, he 

completed the entire Form 2133 himself, using the space for the superintendent’s 

decision to recite his grievance while leaving blank the line reserved for the 

Grievance Clerk’s signature. See NYCRR tit. 7, § 701.5(d)(1)(i) (requiring inmates 

to use Form 2133 to appeal a decision of the superintendent). On this record, we 

have no trouble concluding that Moreau failed to exhaust his administrative 

remedies.
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Nor are we persuaded that the administrative remedies were “unavailable” 

to Moreau. See Ross v. Blake, 578 U.S. 632, 642 (2016) (explaining that inmates need 

not exhaust administrative remedies that are unavailable). We have held that an 

administrative procedure is unavailable when (1) “it operates as a simple dead end 

– with officers unable or consistently unwilling to provide any relief to aggrieved 

inmates”; (2) it is “so opaque that it becomes, practically speaking, incapable of 

use”; or (3) “prison administrators thwart inmates from taking advantage of a 

grievance process through machination, misrepresentation, or intimidation.” 

Williams v. Corr. Officer Priatno, 829 F.3d 118, 123–24 (2d Cir. 2016) (internal 

quotation marks omitted).

There is no evidence that the grievance process was unavailable here. In 

arguing otherwise, Moreau contends that Black had a “usual” practice of falsely 

claiming that he never received grievances. Moreau Br. at 28 (emphasis omitted). 

But Moreau asserts no facts beyond this conclusory statement to suggest that he 

was prevented from pursuing his claims through the ordinary grievance process; 

the record evidence demonstrates that Moreau and other inmates at Eastern were 

able to appeal from several unfavorable IGRC decisions during the same period. 
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There is thus no basis to conclude that the inmate-grievance process was 

unavailable.

We have considered Moreau’s remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court