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Cicio v. Wenderlich

United States District Court, W.D. New York

April 24, 2017

TERRY CICIO, Plaintiff,
v.
DEPUTY WENDERLICH, Superintendent Security, Defendant.

          DECISION AND ORDER

          WILLIAM M. SKRETNY United States District Judge

         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 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 non-response 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 required, and this Court need not reach Wenderlich's remaining grounds for summary judgment.

         A. ...


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