16-509-pr
Hicks v. Adams


                          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 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 19th day of June, two thousand seventeen.
PRESENT: RALPH K. WINTER,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges,
                 ANN M. DONNELLY,
                                 District Judge.
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CLARENCE HICKS,
                                 Plaintiff-Appellant,

                        v.                                                   No. 16-509-pr

ADAMS, Captain, F.C.I. Ray Brook, D. HUDSON, Warden,
F.C.I. Ray Brook,
                         Defendants-Appellees,

SCOTT DEGON, Lieutenant, F.C.I. Ray Brook,
                                 Defendant.
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    FOR PLAINTIFF-APPELLANT:                              Clarence Hicks, pro se, White Deer, PA.




 Judge Ann M. Donnelly, United States District Court for the Eastern District of New York, sitting by
designation.


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 FOR DEFENDANTS-APPELLEES:                      Charles E. Roberts, Assistant United
                                                States    Attorney   (Karen    Folster
                                                Lesperance, Assistant United States
                                                Attorney, of counsel), for Richard S.
                                                Hartunian, United States Attorney for
                                                the Northern District of New York,
                                                Syracuse, NY.

      Appeal from a February 10, 2016, judgment of the United States District Court for
the Northern District of New York (D’Agostino, J.; Dancks, M.J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Clarence Hicks, pro se, appeals from the judgment of the
district court adopting a magistrate judge’s report and recommendation and dismissing
Hicks’s action brought pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        We review de novo a district court’s dismissal of a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Williams v. Corr. Officer Priatno, 829 F.3d 118, 121
(2d Cir. 2016). In deciding a Rule 12(b)(6) motion, the district court may consider
documents incorporated into the complaint by reference, as well as “documents possessed
by or known to the plaintiff upon which [he] relied in bringing the suit.” Tongue v.
Sanofi, 816 F.3d 199, 209 (2d Cir. 2016). Here, the district court properly considered
only those documents of which Hicks had notice and that were incorporated by reference
or relied upon by Hicks in bringing suit.

       We agree with the district court’s conclusion that Hicks failed to exhaust his
administrative remedies prior to filing his complaint in this action. The Prison
Litigation Reform Act (“PLRA”) bars prisoners from bringing suit about prison
conditions “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The PLRA “requires proper exhaustion,” meaning that the prisoner
must “compl[y] with the system’s critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93, 95 (2006). Specifically, “[p]roper exhaustion demands compliance with an
agency’s deadlines and other critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure on the course of its
proceedings.” Id. at 90–91. Exhaustion is mandatory, as long as remedies are actually
available. See Ross v. Blake, 136 S. Ct. 1850, 1856–59 (2016). Remedies are
unavailable if the “administrative scheme [is] so opaque that it becomes, practically

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speaking, incapable of use,” id. at 1859, or if “prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or
intimidation,” id. at 1860.

        Here, Hicks failed to exhaust because he did not properly appeal the warden’s
rejection of his grievances and thus did not comply with applicable procedural
requirements. See Woodford, 548 U.S. at 90–91. Although Hicks asserts that prison
staff did not transmit appeals he attempted to submit, he does not state when he submitted
the appeals, to whom, and what, if any, steps he took after the documents were not filed.
His conclusory allegation is insufficient to plausibly assert that prison officials thwarted
his attempt to appeal. See Ross, 136 S. Ct. at 1860; cf. Williams, 829 F.3d at 120–21,
124 n.3 (holding that inmate had plausibly alleged he was thwarted when he gave a
grievance to a correction officer, then followed up with the superintendent who professed
no knowledge of the grievance, suggesting that grievance had never been filed).

        Moreover, the grievance procedures here were not so opaque that the regulatory
scheme was incapable of use, as there was no ambiguity regarding what steps Hicks
needed to take to file a proper appeal. Cf. Williams, 829 F.3d at 124. Bureau of
Prisons officials told Hicks on more than one occasion how to proceed once his first
appeal to the regional director was rejected as illegible. We therefore conclude that the
district court properly dismissed Hicks’s complaint for failure to exhaust administrative
remedies.1

      We have considered Hicks’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                         FOR THE COURT:
                                         Catherine O’Hagan Wolfe, Clerk of Court




1
  To the extent that Hicks challenges the district court’s earlier sua sponte dismissal of certain claims as
part of the court’s initial review pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, Hicks has
abandoned any such arguments by failing to raise them in his opening brief on appeal.


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