Cicio v. Royce

Background

Terry Cicio, an incarcerated person in the custody of the New York State Department of Corrections and Community Supervision, brought a civil-rights claim against Jason Alvarez, a Green Haven correction officer. Cicio alleged that Alvarez used excessive force during a search on August 13, 2019. Cicio initially sued 14 Green Haven employees under 42 U.S.C. § 1983, alleging violations of the First, Fourth, Eighth, and Fourteenth Amendments. He later voluntarily dismissed his claims against all defendants except Alvarez.

Alvarez moved for summary judgment, which asks whether the evidence shows there is no genuine dispute requiring a trial and the moving party is entitled to judgment under the law. Alvarez relied solely on Cicio’s alleged failure to exhaust administrative remedies before filing suit. Cicio represented himself, received an extension to oppose the motion, but filed neither an opposition nor supporting papers. The court nevertheless reviewed the motion and the available record, including Cicio’s deposition testimony.

Prison grievance process

The Prison Litigation Reform Act requires incarcerated plaintiffs to complete available prison grievance procedures before filing federal claims about prison conditions. For New York prisoners, the grievance process generally requires filing a grievance, appealing through the facility process, and then appealing to the Central Office Review Committee, or CORC.

Cicio filed grievance GH-92277-19 on August 14, 2019. The grievance was treated as a harassment grievance and sent to the facility superintendent. On September 23, 2019, Cicio requested a direct appeal to CORC, which received the appeal on September 30, 2019. Cicio filed his federal complaint on October 22, 2019—22 days after CORC received the appeal and nine days before the 30-day period for CORC to respond expired.

The court held that Cicio had to wait until that 30-day period ended before filing suit. Because he filed nine days too soon, he had not exhausted his administrative remedies when he started the case. CORC’s later decision on March 11, 2021, did not cure the premature filing. The court also stated that the filing date of Cicio’s original complaint controlled, even though he later filed an amended complaint.

Possible exceptions

The court considered whether the grievance process was unavailable. Administrative remedies may be unavailable if the process is a dead end, is so unclear that it cannot practically be used, or prison officials prevent its use through threats, deception, or similar conduct.

The court found that Cicio had not established any of these circumstances. The superintendent and CORC had considered his grievance, so the process was not a dead end. The court found the applicable rules sufficiently clear, particularly because Cicio demonstrated familiarity with the process. Although Cicio had said he feared for his safety and could not wait for the 30-day period to expire, he provided no evidence of specific threats or intimidation that prevented exhaustion. The court therefore declined to excuse the exhaustion requirement.

Disposition

The court granted Alvarez’s motion for summary judgment and dismissed Cicio’s claim without prejudice. The court stated that Cicio could bring a new and separate action if such an action would otherwise be timely. The court declined to grant leave to amend in this case because Cicio had already amended once, had not requested another amendment, and had not identified facts that would cure the exhaustion problem. The Clerk was directed to enter judgment for Alvarez and close the case.