LEV v. THOMS (2021)

SUMMARY ORDER

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), 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, 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, ––– U.S. ––––, 136 S. Ct. 1850, 1859, 195 L.Ed.2d 117 (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.

FOOTNOTES

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.