Filed: Aug. 13, 2009
Latest Update: Mar. 02, 2020
Summary: 08-0479-cv Davis v. Barrett 1 UNITED STATES COURT OF APPEALS 2 3 F OR THE S ECOND C IRCUIT 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 S AMUEL E D D AVIS, 15 Plaintiff-Appellant, 16 17 –v.– 18 19 D AVID L. B ARRETT, 20 21 Defendant-Appellee. 22 23 24 25 Before: 26 P ARKER and W ESLEY, Circuit Judges, C EDARBAUM, District Judge. * 27 28 Appeal from an order of the United States District 29 Court for th
Summary: 08-0479-cv Davis v. Barrett 1 UNITED STATES COURT OF APPEALS 2 3 F OR THE S ECOND C IRCUIT 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 S AMUEL E D D AVIS, 15 Plaintiff-Appellant, 16 17 –v.– 18 19 D AVID L. B ARRETT, 20 21 Defendant-Appellee. 22 23 24 25 Before: 26 P ARKER and W ESLEY, Circuit Judges, C EDARBAUM, District Judge. * 27 28 Appeal from an order of the United States District 29 Court for the..
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08-0479-cv
Davis v. Barrett
1 UNITED STATES COURT OF APPEALS
2
3 F OR THE S ECOND C IRCUIT
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 S AMUEL E D D AVIS,
15 Plaintiff-Appellant,
16
17 –v.–
18
19 D AVID L. B ARRETT,
20
21 Defendant-Appellee.
22
23
24
25 Before:
26 P ARKER and W ESLEY, Circuit Judges, C EDARBAUM, 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 V ACATED AND R EMANDED.
35
*
The Honorable Miriam Goldman Cedarbaum, United
States District Court for the Southern District of New York,
sitting by designation.
1
1
2
3 J OANNA R. V ARON, Duane Morris, LLP, New York, NY
4 (Anthony J. Costantini, Kathrine A. Gehring,
5 of counsel), for Plaintiff-Appellant.
6
7 M ARTIN A. H OTVET, 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 Defendant-
14 Appellee.
15
16
17
18 P ER C URIAM:
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-CR-
29 0545(Sr) (W.D.N.Y. Jan. 15, 2007).
30 On appeal, Davis argues that the magistrate judge
2
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
3
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
4
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
1
The parties consented to proceed before a magistrate
judge.
2
We review de novo a district court’s grant of summary
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 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
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
6
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 Port. 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.”
7
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 non-
7 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,
8
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
9
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
10
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.
11
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
12
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
13
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
14
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 non-
5 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
15
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
16
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
17
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.
18
