Cicio v. Wenderlich

Filing 55

DECISION AND ORDER GRANTING Defendant's 36 Motion for Summary Judgment; DISMISSING the 1 complaint; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, United States District Judge on 4/24/2017. (MEAL) Copy mailed to Plaintiff. - CLERK TO FOLLOW UP -

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TERRY CICIO,
Plaintiff,
v.

DECISION AND ORDER
13-CV-195S

DEPUTY WENDERLICH,
Superintendent Security,
Defendant.

I. INTRODUCTION
Plaintiff Terry Cicio, an inmate formerly held at the Elmira Correctional Facility in
the care and custody of the New York Department of Corrections and Community
Supervision (“DOCCS”), brings this action under 42 U.S.C. § 1983 alleging that
Defendant Stephen Wenderlich, Deputy Superintendent for Security at Elmira during the
time in question, failed to protect him from being attacked by two prisoners in
September 2012.
Presently before this Court is Wenderlich’s Motion for Summary Judgment.
(Docket No. 36.) Having considered the parties’ written submissions and the applicable
law, this Court will grant Wenderlich’s motion and dismiss Cicio’s complaint for failure to
exhaust administrative remedies.
II. BACKGROUND
The following facts are undisputed unless otherwise noted. They are drawn from
Wenderlich’s Statement of Undisputed Facts (Docket No. 36-1) and Cicio’s Declaration
(Docket No. 50).

Cicio was an inmate at Elmira from July 2012 to December 2012. On his first
day at Elmira, Cicio met a fellow Muslim inmate named Malik. Malik was a member of
the Muslim “security team” that apparently existed among inmates at Elmira. At some
point before September 10, 2012, Cicio and Malik had a falling out. Malik allegedly
threatened Cicio, but Cicio believes that Malik told other Muslim inmates that he (Cicio)
had actually threatened Malik.
On September 10, 2012, Cicio heard two unknown Muslim inmates talking about
a knife and his cell location. This prompted Cicio to write a letter to Wenderlich that
same night to inform him that he was threatened by a Muslim inmate and to request that
he be placed in protective custody. Cicio claims that he sent the letter to Wenderlich
the next day, September 11, 2012, but never received a response. Wenderlich denies
ever receiving Cicio’s letter, and Cicio does not know if Wenderlich ever received it.
Cicio claims that he sent a similar second letter to Wenderlich on September 13, 2012,
which Wenderlich also denies receiving.
The day after Cicio allegedly sent his second letter to Wenderlich, he was
attacked in the Elmira Field House. The evening of September 14, 2012, Plaintiff was in
the Field House watching television with other inmates.

At some point during the

evening, an inmate sitting behind Cicio struck him in the face with a razor and then fled,
while a second inmate sitting in front of Cicio turned and began fighting with him. Cicio
did not know the two individuals who attacked him, though he had seen them at Muslim
services.

Cicio did not have problems with either attacker in the past and neither

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previously posed a threat to him. After corrections officers broke up the fight, Cicio was
placed in Involuntary Protective Custody.
Cicio claims that he filed a grievance regarding this incident on September 15,
2012, but he never received a response. He admits that he did not appeal the nonresponse to his grievance or otherwise pursue any further administrative remedies.
Instead, he filed the instant suit on February 22, 2013. DOCCS’s records indicate that
Cicio never filed a grievance while at Elmira and never appealed a grievance from
Elmira. (Declaration of William Abrunzo, Docket No. 36-4, ¶ 8; Declaration of Jeffery
Hale, Docket No. 36-5, ¶ 6.)
III. DISCUSSION
Cognizant of the distinct disadvantage that pro se litigants face, federal courts
routinely read their submissions liberally, and interpret them to raise the strongest
arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This
is especially important when reviewing pro se complaints alleging civil rights violations.
See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). Since Cicio is proceeding
pro se, this Court has considered his submissions and arguments accordingly.
Wenderlich moves for summary judgment on the grounds that (1) Cicio failed to
exhaust his administrative remedies, (2) Cicio did not suffer an Eighth Amendment
violation, (3) Wenderlich was not personally involved in the alleged constitutional
violation, and (4) Wenderlich is entitled to qualified immunity. Because it is plain that
Cicio failed to exhaust his administrative remedies, dismissal of the complaint is

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required, and this Court need not reach Wenderlich’s remaining grounds for summary
judgment.
A.

Summary Judgment
Summary judgment is appropriate if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
In deciding a motion for summary judgment, the evidence and the inferences
drawn from the evidence must be "viewed in the light most favorable to the party
opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.
Ct.1598, 1609, 26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ
as to the import of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d
979, 982 (2d Cir. 1991). Indeed, “[i]f, as to the issue on which summary judgment is
sought, there is any evidence in the record from which a reasonable inference could be
drawn in favor of the opposing party, summary judgment is improper.” Sec. Ins. Co. of
Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations
omitted).
But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat
summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than
cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence

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showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986);
D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be
evidence from which the jury could reasonably find for the non-moving party. Anderson,
477 U.S. at 252.
As noted, “[i]t is well established that the submissions of a pro se litigant must be
construed liberally and interpreted ‘to raise the strongest arguments that they suggest.’”
Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006)). “A pro se plaintiff, however, cannot defeat a
motion for summary judgment by simply relying on the allegations of his complaint; he
must present admissible evidence from which a reasonable jury could find in his favor.”
Belpasso v. Port Auth. of NY & NJ, 400 Fed. Appx. 600, 601 (2d Cir. 2010); see
Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (summary judgment properly
entered against pro se plaintiff who failed to oppose motion with admissible evidence
after receiving plainly worded warning of the consequences of such failure).
In the end, the function of the court is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249. “Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the court on summary judgment.”
Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

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B.

42 U.S.C. § 1983: Eighth Amendment Failure-to-Protect Claim
Civil liability is imposed under 42 U.S.C. § 1983 only upon persons who, acting

under color of state law, deprive an individual of rights, privileges, or immunities secured
by the Constitution and laws. See 42 U.S.C. § 1983. On its own, § 1983 does not
provide a source of substantive rights, but rather, a method for vindicating federal rights
conferred elsewhere in the federal statutes and Constitution. See Graham v. Connor,
490 U.S. 386, 393-94,109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quoting Baker v.
McCollan, 443 U.S. 137, 145 n.3, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979)).
Accordingly, as a threshold matter in reviewing claims brought under § 1983, it is
necessary to precisely identify the constitutional violations alleged. See Baker, 443
U.S. at 140. Here, Cicio’s failure-to-protect claim falls under the Eighth Amendment.
The Eighth Amendment requires prison officials “to take reasonable measures to
guarantee the safety of inmates in their custody.” Hayes v. NYC Dep't. of Corr., 84 F.3d
614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S. Ct.
1970, 1977, 128 L. Ed. 2d 811 (1994)). Thus, “allowing an attack on an inmate to
proceed without intervening is a constitutional violation in certain circumstances.”
Rosen v. City of New York, 667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009) (quoting Baker v.
Tarascio, No. 3:05-CV-548, 2009 WL 581608, at *4 (D. Conn. Mar. 6, 2009)). “It is not,
however, every injury suffered by one prisoner at the hands of another that translates
into constitutional liability for prison officials responsible for the victim’s safety.” Stewart
v. Schiro, No. 13-CV-3613, 2015 WL 1854198, at *6 (E.D.N.Y. Apr. 22, 2015).

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Pursuant to § 1983, prison officials may be held liable for an inmate’s injuries
only if the officials acted with “deliberate indifference” to a substantial risk to the
inmate’s safety. Morales v. NYS Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988). To
demonstrate such deliberate indifference, a plaintiff must show that “he is incarcerated
under conditions posing a substantial risk of serious harm” and that the prison official
had “knowledge that an inmate face[d] a substantial risk of serious harm and he
disregard[ed] that risk by failing to take reasonable measures to abate the harm.”
Hayes, 84 F.3d at 620; see also Warren v. Goord, 476 F. Supp. 2d 407, 410 (S.D.N.Y.
2007).
Cicio alleges a failure-to-protect claim arising out of his attack in the Elmira Field
House, but as stated below, he has failed to exhaust his administrative remedies with
respect to this claim. His complaint must therefore be dismissed.
C.

Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1996 (“PLRA”), Pub.L. No. 104–134, 110

Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to
maintain federal civil rights actions, expressly requires that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal
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); see
also Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L. Ed. 2d (2006)
(“Exhaustion is . . . mandatory. Prisoners must now exhaust all ‘available’ remedies[.]”);
Hargrove v. Riley, No. 04–CV–4587, 2007 WL 389003, at *5-*6 (E.D.N.Y. Jan. 31,

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2007) (“The exhaustion requirement is a mandatory condition precedent to any suit
challenging prison conditions, including suits brought under Section 1983.”).

“[T]he

PLRA's exhaustion requirement applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct.
983, 152 L. Ed. 2d 12 (2002).
In the event the defendant establishes that the inmate plaintiff failed to fully
complete the administrative review process before commencing the action, the plaintiff's
complaint is subject to dismissal.

Pettus v. McCoy, No. 04–CV–0471, 2006 WL

2639369, at *1 (N.D.N.Y. Sept. 13, 2006); see also Woodford, 548 U.S. at 93 (“[W]e are
persuaded that the PLRA exhaustion requirement requires proper exhaustion.”).
“Proper exhaustion” requires a plaintiff to procedurally exhaust his claims by
“compl[ying] with the system's critical procedural rules.” Woodford, 548 U.S. at 95;
accord Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
In New York, formal exhaustion of administrative remedies for prison inmates
requires compliance with a detailed three-step grievance and appeal procedure. See
Morrison v. Parmele, 892 F. Supp. 2d 485, 487 (W.D.N.Y. 2012) (citing 7 N.Y.C.R.R. §
701.5)). The grievance process outlined at § 701.5 provides that: (1) the inmate must
submit a written complaint to the Grievance Clerk within 21 calendar days of the alleged
occurrence; the Grievance Clerk then submits the complaint to the Inmate Grievance
Resolution Committee (“IGRC”) for investigation and review; (2) if the IGRC denies the
grievance, the inmate may appeal to the superintendent of the facility by filing an appeal

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with the IGP clerk; (3) after the superintendent issues a decision, the inmate may
appeal to the Central Office Review Committee (“CORC”), which makes the final
administrative determination. See Thousand v. Corrigan, 9:15-CV-01025 (MAD/ATB),
2017 WL 1093275, at *3 (N.D.N.Y. Mar. 23, 2017); Turner v. Goord, 376 F. Supp. 2d
321, 323 (W.D.N.Y. 2005). “A prisoner has not exhausted his administrative remedies
until he goes through all three levels of the grievance procedure.”

Hairston v.

LaMarche, Case No.05 Civ. 6642, 2006 WL 2309592, at *7 (S.D.N.Y. Aug.10, 2006)
(citing cases). If all three levels of review are exhausted, the prisoner may seek relief in
federal court under § 1983. See Thousand, 2017 WL 1093275, at *3; Bridgeforth v.
DSP Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010).
While the Supreme Court has deemed the exhaustion of administrative remedies
generally mandatory, it has held that a prisoner’s duty to exhaust is limited to “available”
administrative remedies. 1 Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1855, 195 L. Ed.
2d 117 (2016) (“A prisoner need not exhaust remedies if they are not ‘available.’”). “An
inmate, that is, must exhaust available remedies, but need not exhaust unavailable
ones.”

Id. at 1858.

To be “available,” administrative remedies (e.g., grievance

procedures) must be “capable of use to obtain some relief for the action complained of.”
Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738, 121 S. Ct. 1819, 149 L. Ed.
2d 958 (2001)).

The Court in Ross identified three circumstances in which an

administrative remedy may be unavailable:
1

With this holding, the Court in Ross rejected the Second Circuit’s “extra-textual” exception to the
exhaustion requirement, which allowed courts to consider whether “special circumstances” justified a
prisoner’s failure to exhaust administrative remedies. See Williams, 829 F.3d 118, 123 (2d Cir. 2016)
(recognizing that Ross largely abrogates the framework set forth in Giano v. Goord, 380 F.3d 670, 675-76
(2d Cir. 2004) and Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), which set forth a “special
circumstances” exception to the PLRA’s exhaustion requirement).

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First, an administrative remedy may be unavailable when it
operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates. Second, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of
use. In other words, some mechanism exists to provide
relief, but no ordinary prisoner can discern or navigate it.
Third, an administrative remedy may be unavailable when
prison administrators thwart inmates from taking advantage
of
a
grievance
process
through
machination,
misrepresentation, or intimidation.
Williams v. Correction Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (citing Ross,
136 S. Ct. at 1859-60) (quotation marks and citations omitted).
It is undisputed that Cicio failed to exhaust his administrative remedies by
pursuing all three steps of the grievance and appeal procedures. Cicio’s only argument
concerning his failure to exhaust is that he was prevented from doing so because he
never received a response to the grievance he allegedly filed. See Docket No. 50
(“[P]laintiff provided the court with a receipt for filing [h]is first step grievance, but
received no response, thereby preventing him from appealing the grievance.”)

He

therefore maintains that he could not complete the second and third stages of the
administrative review process.
Even assuming that Cicio filed an initial grievance—an assumption directly
contrary to DOCCS’s records—it is well settled that the lack of response to that
grievance does not excuse Cicio’s failure to appeal to the next level. 2 Cicio was thus
required to appeal his grievance despite the alleged lack of response. See Atkins v.
Menard, No. 11–CV–0366, 2012 WL 4026840, at *4, (N.D.N.Y. Sept. 12, 2012) (finding

2

Cicio’s reliance on cases from outside the Second Circuit that may state a contrary rule is misplaced.
See Docket No. 51, p. 4 (citing Brengettcy v. Horton, 423 F.3d 674 (7th Cir. 2005) and Boyd v. Corr.
Crop. of Am., 380 F.3d 989 (6th Cir. 2004)).

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that plaintiff failed to exhaust where he had the “ability, and indeed the duty, to appeal
the IGRC's nonresponse (to his grievance) to the next level, including CORC, to
complete the grievance process.”); Murray v. Palmer, 03-CV-1010, 2010 WL 1235591,
at *2 & n. 4 (N.D.N.Y. Mar. 31, 2010) (“[A]ny failure by the IGRC or the superintendent
to timely respond to a grievance or first-level appeal, respectively, can—and must be—
appealed to the next level, including CORC, to complete the grievance process.”)
(collecting cases); Williams v. Hupkowicz, 04-CV-0051S, 2007 WL 1774876, at *3
(W.D.N.Y. June 18, 2007) (“Even assuming that an inmate received no timely official
response as contemplated by the regulations to a grievance at any stage in the inmate
grievance process, the inmate could nevertheless appeal such grievance to the next
level, and the failure to do so constitutes a failure to exhaust his administrative remedies
as required under the PLRA.”); see also 7 N.Y.C.R.R. § 701.6 (g)(2) (“[M]atters not
decided within the time limits may be appealed to the next step.”).
Because it is undisputed that Cicio failed to appeal his grievance and
consequently failed to exhaust all administrative remedies that were available to him,
his complaint must be dismissed.

See Guarneri v. West, 782 F. Supp. 2d 51, 59

(W.D.N.Y. 2011) (“Each level of the grievance procedure must be exhausted before an
inmate may commence litigation in federal court.”).
IV. CONCLUSION
For the reasons stated above, Wenderlich has established that he is entitled to
summary judgment dismissing Cicio’s complaint in its entirety for failure to exhaust
administrative remedies. The complaint will therefore be dismissed.

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V. ORDERS
IT HEREBY IS ORDERED, that Defendant’s Motion for Summary Judgment
(Docket No. 36) is GRANTED.
FURTHER, that the complaint (Docket No. 1) is DISMISSED.
FURTHER, that the Clerk of the Court is directed to CLOSE this case.
SO ORDERED.

Dated: April 24, 2017
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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