22-2916-pr
Fox v. Cruz
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 13th day of November, two thousand twenty-three.
PRESENT: DENNIS JACOBS,
RAYMOND J. LOHIER, JR.,
EUNICE C. LEE
Circuit Judges.
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JAVELL FOX,
Plaintiff-Appellant,
v. No. 22-2916
OFFICER SANTIAGO CRUZ,
Eastern New York Correctional
Facility, SUPERINTENDENT
WILLIAM A. LEE, Eastern New York
Correctional Facility, LIEUTENANT
EDWARD MADISON, Eastern New
York Correctional Facility,
SERGEANT DUNCAN BEY, Eastern
New York Correctional Facility,
OFFICER WILLIAM KOZAK,
Eastern New York Correctional
Facility, OFFICER JASON WAUGH,
Eastern New York Correctional
Facility, SERGEANT JASON
CONNOR, Eastern New York
Correctional Facility, CAPTAIN
WILLIAM WEBBE, Eastern New
York Correctional Facility,
ANTHONY RUSSO, Correction
Deputy Superintendent Security,
Eastern New York Correctional
Facility, LIEUTENANT KARL
SIMMONS, Eastern New York
Correctional Facility, ROSEMARIE
WENDLAND, Correction Deputy
Superintendent Administration,
Eastern New York Correctional
Facility, OFFICER STUART MILLER,
Eastern New York Correctional
Facility, DEPUTY KENNETH
CALAO, Eastern New York
Correctional Facility, C. JENNINGS,
Correction Steward, Eastern NY
Correctional Facility, DIANE
LABATTE, Correction Steward,
Eastern New York Correctional
Facility, ANTHONY J. ANNUCCI,
Department of Corrections and
Community Supervision
Commissioner, OFFICER RICHARD
HENRY, Eastern New York
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Correctional Facility, OFFICER
ROBERT O. WILLIAMSON, Eastern
New York Correctional Facility,
LIEUTENANT PATRICK
SULLIVAN, Eastern New York
Correctional Facility, SERGEANT
PAUL BARG, Eastern New York
Correctional Facility, SERGEANT
TONY VANACORE, Eastern New
York Correctional Facility,
Defendants-Appellees,
GOVERNOR ANDREW CUOMO,
New York State, SERGEANT
LIFIELD, Eastern New York
Correctional Facility, SERGEANT
BRADLEY, Eastern New York
Correctional Facility, OFFICER
SCHADEL,
Defendants.
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FOR APPELLANT: Javell Fox, pro se, Beacon, NY
FOR APPELLEE: Barbara D. Underwood,
Solicitor General, Andrea Oser,
Deputy Solicitor General, for
Letitia James, Attorney
General of the State of New
York, Albany, NY
Appeal from a judgment of the United States District Court for the
Northern District of New York (Thomas J. McAvoy, Judge; Christian F. Hummel,
Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED in part
and VACATED in part, and the action is REMANDED for further proceedings
consistent with this order.
Plaintiff Javell Fox, proceeding pro se, appeals from an October 27, 2022
judgment of the United States District Court for the Northern District of New
York (McAvoy, J.) granting summary judgment in favor of all defendants,
including the Appellees, on all but one of Fox’s claims under 42 U.S.C. § 1983
that the defendants engaged in a pattern of harassment and retaliation against
him based on his hairstyle, in violation of his First Amendment right to exercise
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his religion. 1 With respect to these dismissed claims, the District Court
concluded that Fox had failed to exhaust his administrative remedies under the
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Fox now challenges
the District Court’s decision granting summary judgment. 2 We assume the
parties’ familiarity with the underlying facts and the record of prior proceedings,
to which we refer only as necessary to explain our decision to affirm in part and
vacate in part.
“We review the district court’s grant of summary judgment de novo,
construing the facts in the light most favorable to the non-moving party and
drawing all reasonable inferences in [his] favor.” Aponte v. Perez, 75 F.4th 49, 55
(2d Cir. 2023) (quotation marks omitted). With two exceptions, we agree with
the District Court that Fox failed to exhaust his administrative remedies.
To properly exhaust his administrative remedies, Fox was required to
comply with the New York Department of Corrections and Community
Supervision’s three-tiered grievance process. 7 N.Y.C.R.R. § 701.5. Fox filed five
1 Fox proceeded to trial on the remaining claim and prevailed in part.
2Fox also asserts that the District Court erred when it denied his motions for contempt
and for leave to file a second amended complaint. Fox does not explain why the
District Court erred, however, and even a liberal reading of Fox’s brief fails to persuade
us that his assertion has any merit.
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grievances giving rise to the claims at issue on appeal. For reasons not apparent
on the record, he failed to appeal the denial of three of those grievances to the
Central Office Review Committee (CORC), the final step to complete the
administrative grievance process. 7 N.Y.C.R.R. § 701.5(d); Garcia v. Heath, 74
F.4th 44, 46 (2d Cir. 2023). Fox thus failed to exhaust his remedies for the claims
asserted in these three grievances. See Jones v. Bock, 549 U.S. 199, 218 (2007);
Romano v. Ulrich, 49 F.4th 148, 153 (2d Cir. 2022). Fox also failed to exhaust any
claims for which he did not file a grievance. See Porter v. Nussle, 534 U.S. 516, 524
(2002); Hill v. Curcione, 657 F.3d 116, 124 (2d Cir. 2011).
Urging a contrary conclusion, Fox contends that we should excuse his
failure to exhaust because the grievance process was unavailable to him. See Ross
v. Blake, 578 U.S. 632, 642 (2016). We are not persuaded. In opposing summary
judgment, Fox failed to adduce any admissible evidence that any step of the
three-step grievance process was unavailable to him. Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001).
Fox also argues that he was not required to use the three-step grievance
process to exhaust the claims arising from one of the three grievances because
they relate to a disciplinary hearing. To be sure, a prisoner alleging due process
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violations in a disciplinary hearing exhausts his administrative remedies by
directly appealing the hearing. Davis v. Barrett, 576 F.3d 129, 132 (2d Cir. 2009).
But neither Fox’s grievance nor his federal complaint challenges the disciplinary
hearing itself. Instead, Fox alleges that corrections officers filed false disciplinary
reports and conducted the hearings in a biased way in order to harass and
retaliate against him for his prior grievances. Fox was thus required to
administratively exhaust these retaliation and harassment claims through the
three-step grievance process before pursuing those claims in federal court. See
Porter, 534 U.S. at 532 (holding “that the PLRA’s exhaustion requirement applies
to all inmate suits about prison life,” including “particular episodes” of
wrongdoing).
As the Appellees concede, however, Fox fully exhausted his remedies with
respect to his two remaining grievances, ECF-26147-14 and ECF-26217-15, before
he asserted the related claims in federal court. With respect to ECF-26147-14, Fox
appealed the grievance to the CORC, which failed to respond within the 30 days
required under New York’s regulations. Consistent with Hayes v. Dahlke, 976
F.3d 259 (2d Cir. 2020), which was published after the summary judgment
decision in this case, Fox exhausted his administrative remedies because he
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“follow[ed] the [inmate grievance] procedure in its entirety but the CORC
fail[ed] to respond within the 30 days it is allocated under the regulations.” Id. at
270; see 7 N.Y.C.R.R. § 701.5(d)(3)(ii). With respect to ECF-26217-15, the
Appellees concede that Fox had fully exhausted the grievance by the time he first
asserted the related claims in his operative amended complaint. 3 Accordingly,
we vacate the District Court’s judgment granting summary judgment as to the
claims relating to grievances ECF-26147-14 and ECF-26217-15 and remand the
case to the District Court for further proceedings on those claims. 4
3Because the Appellees have conceded that the claims relating to grievance ECF-26217-
15 should be deemed exhausted, we need not decide whether, under Neal v. Goord, 267
F.3d 116, 117–18 (2d Cir. 2001), abrogated in part on other grounds by Porter v. Nussle, 534
U.S. 516 (2002), Fox in fact properly exhausted his administrative remedies.
4To the extent grievance ECF-26217-15 asserts claims related to Appellee Santiago
Cruz’s alleged sexual assault, those claims are not remanded because the District Court
denied summary judgment and Fox proceeded to trial on those claims. See Fox v. Lee,
No. 15-cv-390 (TJM), 2018 WL 8576600, at *10 (N.D.N.Y. Dec. 18, 2018), adopted, 2019 WL
1323845 (N.D.N.Y. Mar. 25, 2019).
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We have considered Fox’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the judgment of the District Court
is AFFIRMED in part and VACATED in part, and the case is REMANDED for
further proceedings.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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Fox v. Cruz
Combined Opinion