16‐2829
Amaker v. Bradt
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 ASUMMARY 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 December, two thousand
eighteen.
PRESENT:
DENNIS JACOBS,
GUIDO CALABRESI,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
Anthony D. Amaker,
Plaintiff‐Appellant,
v. 16‐2829
1
Mark L. Bradt, Supt., et al.,
Defendants‐Appellees.
_____________________________________
FOR PLAINTIFF‐APPELLANT: Anthony Amaker, pro se, Brooklyn,
NY.
FOR DEFENDANTS‐APPELLEES: Jeffrey Lang, Deputy Solicitor
General, Kate H. Nepveu, Assistant
Solicitor General, for Barbara D.
Underwood, Attorney General of the
State of New York, Albany, NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Schroeder, M.J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Anthony Amaker, pro se, sued numerous state prison officials
and corrections officers pursuant to the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq., and 42 U.S.C. § 1983
for violations of the First and Eighth Amendments. He alleged that the
defendants interfered with the free exercise of his religion, including access to
religious meals, and that corrections officers engaged in improper or retaliatory
acts. The District Court for the Western District of New York (Schroeder, M.J.)
granted summary judgment to the defendants, reasoning that Amaker failed to
exhaust his administrative remedies. Amaker appealed. He then moved for
reconsideration, which the magistrate judge denied. He did not file a new notice
of appeal. We assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
2
We review a grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013) (per curiam).
“Summary judgment is proper only when, construing the evidence in the light
most favorable to the non‐movant, ‘there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.’” Doninger v.
Niehoff, 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be
brought with respect to prison conditions under section 1983 . . . , or any other
[f]ederal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). The PLRA requires “proper exhaustion,” meaning exhaustion
in “compliance with an agency’s deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006).
Amaker failed to file grievances for seven of the eight alleged incidents and
failed to exhaust the appeals process for the remaining incident. One grievance
from February 2013 addresses some of the allegations raised in the complaint, but
Amaker did not exhaust his remedies related to this grievance because he filed
the complaint at issue here 11 days after filing the grievance, before it could be
resolved by prison officials. Exhaustion of a claim after the complaint has
already been filed in federal court does not save the claim from dismissal. Neal
v. Goord, 267 F.3d 116, 122 (2d Cir. 2001), abrogated in part on other grounds by
Porter v. Nussle, 534 U.S. 516 (2002).
Prisoners are exempt from the exhaustion requirement when
administrative remedies are unavailable. Ross v. Blake, 136 S. Ct. 1850, 1858
(2016). 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,
3
or intimidation.’” Williams v. Priatno, 829 F.3d 118, 123–24 (2d Cir. 2016)
(quoting Ross, 136 S. Ct. at 1859–60).
Amaker argues that administrative remedies were unavailable to him due
to his transfer to another prison a month after filing his February 2013 grievance.
The defendants argue that Amaker waived this argument by failing to raise it in
his motion for summary judgment. Even if Amaker had raised this argument on
summary judgment, exhaustion would be required because remedies were
available to him after his transfer.
New York’s grievance procedure permits an inmate who is transferred to
another prison to “continue an appeal of any grievance.” 7 N.Y.C.R.R.
§ 701.6(h)(2). Accordingly, Amaker could (and did) continue to appeal his
February 2013 grievance after his transfer. Amaker argues that any remedy
would have been moot because he was transferred, but remedies are still
available to prisoner who requested and received a prison transfer where “a
formal grievance still would have allowed prison officials to reconsider their
policies and discipline any officer who had failed to follow existing policies.”
Ruggiero v. Cnty. of Orange, 467 F.3d 170, 177 (2d Cir. 2006). Therefore, an
administrative remedy was available to Amaker, even after his transfer.
To the extent that Amaker also appeals the magistrate judge’s denial of
reconsideration, we lack jurisdiction to review that order because he never filed a
new or amended notice of appeal. A notice of appeal filed prior to an order
disposing of a motion listed in Federal Rule of Appellate Procedure 4(a)(4) does
not give this Court jurisdiction to review that later order. Sorensen v. City of
New York, 413 F.3d 292, 295–96 (2d Cir. 2005). An amended notice of appeal is
required. Id.; see also Fed. R. App. P. 4(a)(4)(B)(ii).
Amaker filed a notice of appeal after judgment was entered but before the
district court decided his motion for reconsideration. Because he did not file an
amended notice of appeal, we lack jurisdiction over the order denying
reconsideration.
4
We have considered Amaker’s remaining arguments and find them to be
without merit. For the foregoing reasons, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
5