United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge
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.
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.
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.
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.
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.
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
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,
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.
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.