19-2437-pr Toliver v. Adner

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 10th day of December, two thousand twenty.

PRESENT: ROBERT D. SACK, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

SAMUEL RASHEEN RAYMOND TOLIVER (STATE PRISONER: 09-B-2037), Plaintiff-Appellant,

-v- 19-2437-pr

K. ADNER, MAIL POSTAL CORRECTIONS CARRIER, Defendant-Appellee. ∗

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∗ The Clerk of the Court is respectfully directed to amend the caption as set forth above. FOR PLAINTIFF-APPELLANT: Samuel Rasheen Raymond Toliver, pro se, Gowanda, NY.

FOR DEFENDANT-APPELLEE: Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, and Sarah L. Rosenbluth, Assistant 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 (Hurd, J.).

UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Samuel Toliver, proceeding pro se, sued defendant-

appellee Karen Adner and four other prison officials under

for

violations of his rights under the First, Fourth, Eighth, and Fourteenth Amendments

and the New York Constitution, and for violations of the federal criminal mail theft

statutes. The complaint alleged that, while an inmate at Riverview Correctional

Facility, Toliver tried to mail samples of contaminated and undercooked prison food to

government agencies for testing. Adner, a mail clerk, allegedly intercepted his mail,

opened and read the letters accompanying these samples, and destroyed the letters and

samples, after which she retaliated against him by filing a misbehavior report about the

incident, which prompted a disciplinary hearing and punishment. The district court,

sua sponte, dismissed all of Toliver's claims against Adner except his claims under the

2 First and Fourth Amendments, dismissed all claims against the other four officials, and

allowed leave to replead the claims it had dismissed without prejudice. Toliver did not

file an amended complaint. The district court then adopted a report and

recommendation recommending dismissal of the two remaining claims based on

Toliver's failure to exhaust administrative remedies. Toliver appeals from the district

court's judgment dismissing his complaint. We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal. 1

We review de novo the dismissal of a complaint pursuant to Rule 12(b)(6).

Forest Park Pictures v. Universal Television Network, Inc.,

(2d Cir. 2012).

The complaint must plead "enough facts to state a claim to relief that is plausible on its

face." Bell Atl. Corp. v. Twombly,

(2007).

While we "liberally construe pleadings and briefs submitted by pro se

litigants, reading such submissions to raise the strongest arguments they suggest,"

McLeod v. Jewish Guild for the Blind,

(2d Cir. 2017) (per curiam) (internal

quotation marks omitted), pro se appellants must still comply with Federal Rule of

Appellate Procedure 28(a), which "requires appellants in their briefs to provide the

court with a clear statement of the issues on appeal." Moates v. Barkley,

(2d Cir. 1998) (per curiam). Despite affording pro se litigants "some latitude in meeting

1 As Toliver did not file an amended complaint below and does not address on appeal the claims dismissed by the district court at the outset of the case, we limit our discussion to the two claims dismissed for failure to exhaust administrative remedies. 3 the rules governing litigation," we "normally will not[] decide issues that a party fails to

raise in his . . . appellate brief." Id.; see also Terry v. Inc. Vill. of Patchogue,

(2d Cir. 2016) ("Although we accord filings from pro se litigants a high degree of

solicitude, even a litigant representing himself is obliged to set out identifiable

arguments in his principal brief.") (internal quotation marks omitted); LoSacco v. City of

Middletown,

(2d Cir. 1995) ("[W]e need not manufacture claims of error for

an appellant proceeding pro se, especially when he has raised an issue below and

elected not to pursue it on appeal."). Nor will we decide issues that a pro se appellant

raises in his brief only conclusorily or in passing. See Gerstenbluth v. Credit Suisse Sec.

(USA) LLC,

, 142 n.4 (2d Cir. 2013) (pro se appellant waived all claims

against an appellee by mentioning the adverse district court ruling only "obliquely and

in passing"). Finally, we will not typically address issues raised for the first time on

appeal. In re Nortel Networks Corp. Sec. Litig.,

(2d Cir. 2008) (per

curiam).

Toliver's appellate brief generally repeats his First Amendment retaliation

allegations and conclusorily asserts that he stated a retaliation claim (apparently against

Adner, as his brief does not mention the dismissed defendants). But that claim went

forward and he does not address the district court's reasons for its dismissal: his failure

to exhaust administrative remedies. He also fails to address the dismissal of his Fourth

Amendment claim for failure to exhaust. His conclusory statement that the "elements of

4 each of his causes of action do[ ] exist," Appellant's Br. at 17, does not explain why he

believes the claims were improperly dismissed. Toliver has thus waived any challenge

to the district court's dismissal orders. See Terry,

; Gerstenbluth,

n.4; Moates,

.

The one argument Toliver does raise -- that he exhausted his

administrative remedies because exhaustion is not required for judicial review under

N.Y. C.P.L.R Article 78 -- was asserted for the first time on appeal and is also waived.

Nortel,

. But even if we were to address that argument, it is meritless.

Toliver is correct that New York law does not require exhaustion of administrative

remedies if an Article 78 petitioner challenges the constitutionality of a statute or

regulation pursuant to which an agency took a particular action. See Watergate II

Apartments. v. Buffalo Sewer Auth.,

(1978). The Prison Litigation

Reform Act, however, is the controlling law in federal court, and it prohibits an inmate

from bringing suit under

implicating prison conditions "until such

administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a);see also

Porter v. Nussle,

(2002) ("[T]he PLRA's exhaustion requirement applies

to all inmate suits about prison life, whether they involve general circumstances or

particular episodes . . . or some other wrong."). Accordingly, Toliver may not avoid

having to exhaust his administrative remedies.

* * *

5 We have considered Toliver's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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