Slip Opinion
S.D.N.Y.2022Background
- Plaintiff Terry Cicio, a DOCCS inmate at Green Haven, alleges Officer Jason Alvarez used excessive force during an August 13, 2019 search.
- Cicio filed grievance GH-92277-19 on August 14, 2019; IGRC categorized it as a harassment grievance and forwarded it to the superintendent.
- Cicio appealed directly to CORC on September 23, 2019; CORC 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 CORC’s 30-day response deadline.
- CORC later issued a decision on March 11, 2021 denying relief; defendant moved for summary judgment on exhaustion grounds, and Cicio did not file opposition.
- The Court granted summary judgment for Alvarez, holding Cicio failed to exhaust administrative remedies under the PLRA and dismissing the case without prejudice; leave to amend was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of exhaustion (did Cicio exhaust before suing?) | Cicio filed suit after appealing to CORC and later received a CORC decision (implied that exhaustion occurred) | Cicio filed prematurely—Complaint was filed before CORC’s 30-day response window expired | Court: Dismissed for failure to exhaust; Complaint filed 9 days before CORC’s deadline so exhaustion was incomplete |
| Does a post-filing CORC decision cure premature filing? | Post-filing CORC decision should remedy exhaustion defect (implicit) | A CORC decision issued after filing does not retroactively cure failure to exhaust before suit | Court: Later CORC decision does not cure premature filing; dismissal still required |
| Applicability of Ross exceptions (are remedies "unavailable"?) | Cicio asserted fear for safety and criticized IGP; implied remedies unavailable | No evidence of specific threats, process is functional and familiar to Cicio (he filed many grievances) | Court: Ross exceptions inapplicable—IGP not a dead end or opaque; no proof of machination/misrepresentation/intimidation |
| Leave to amend | No request or proposed facts to cure exhaustion defect | Opposes unnecessary because defect is substantive and procedural | Court: Denied leave to amend sua sponte; plaintiff already amended once and did not show how amendment would cure the defect |
Key Cases Cited
- Porter v. Nussle, 534 U.S. 516 (U.S. 2002) (PLRA requires exhaustion for prisoner suits)
- Ross v. Blake, 578 U.S. 632 (U.S. 2016) (narrow circumstances where administrative remedies are unavailable)
- Hayes v. Dahlke, 976 F.3d 259 (2d Cir. 2020) (inmate must wait full agency deadline before filing suit)
- Amador v. Andrews, 655 F.3d 89 (2d Cir. 2011) (exhaustion must be proper under agency rules)
- Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241 (2d Cir. 2004) (court must independently confirm movant met summary judgment burden when non-movant fails to respond)
- Anderson v. Liberty Lobby, 477 U.S. 242 (U.S. 1986) (summary judgment standards)
- Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004) (dismissal without prejudice appropriate where exhaustion defect can be cured)