     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   Porter 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.




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