Matter of Muggelberg v Annucci

Matter of Muggelberg v Annucci 2015 NY Slip Op 06848 Decided on September 17, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: September 17, 2015
520195

[*1]In the Matter of JOHN MUGGELBERG, Appellant,

v

ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

Calendar Date: August 10, 2015
Before: Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ.

John Muggelberg, Sonyea, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered December 2, 2014 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of the Central Office Review Committee denying petitioner's grievance.

Petitioner is an inmate at Livingston Correctional Facility, which is located in what the Department of Corrections and Community Supervision (hereinafter DOCCS) designates as the Wende Hub. Relying on DOCCS Directive No. 4017 (IV) (c), petitioner sought a transfer to another correctional facility within that hub to accommodate visitation by his father, who has limited mobility. After his offender rehabilitation coordinator refused to submit his intra-hub transfer request finding that it

was impermissible, he filed a grievance. The Central Office Review Committee ultimately denied the grievance, finding that neither the directive nor department policy permits inmate requests for intra-hub facility transfers, and that the directive permits such transfers only "for departmental or programmatic needs" but not for "inmate preference." Petitioner thereafter commenced this CPLR article 78 proceeding challenging the denial of his grievance, seeking, among other relief, an order compelling respondent to process his request to be transferred to another facility in the Wende Hub. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Respondent has broad discretion in deciding whether to transfer inmates from one correctional facility to another, and an inmate has no right to be housed at any [*2]particular facility (see Correction Law § 23; Matter of Davis v Fischer, 81 AD3d 1011, 1012 [2011], lv dismissed 17 NY3d 921 [2011]; Matter of Lugo v Goord, 49 AD3d 1114, 1115 [2008], lv denied 10 NY3d 714 [2008]). Mandamus to compel does not lie to compel the performance of a discretionary decision (see Matter of Borrell v New York State Div. of Parole, 123 AD3d 1206, 1206-1207 [2014], lv denied 25 NY3d 901 [2015]; Matter of Swinton v Travis, 16 AD3d 851, 853 [2005]). Moreover, the interpretation of the directive as not permitting intra-hub transfer requests by inmates is rational and, therefore, the determination that his request for such a transfer was not permissible was not arbitrary and capricious (see Matter of Davis v Fischer, 76 AD3d 1152, 1152 [2010]; Matter of Binkley v New York State Dept. of Correctional Servs., 64 AD3d 1063, 1063-1064 [2009], lv denied 13 NY3d 886 [2009]; Matter of Fullwood v Lamy, 28 AD3d 1016, 1016 [2006]).

With regard to his claim that DOCCS' policy violates his right to equal protection, petitioner has not shown that he was treated differently than "similarly situated" inmates or that any disparate treatment was based upon "impermissible considerations" (Matter of State of New York v Myron P., 20 NY3d 206, 211 [2012] [internal quotation marks and citation omitted]). Petitioner's remaining claims are either unpreserved or lack merit.

Peters, P.J., Lahtinen, Egan Jr. and Rose, JJ., concur.

ORDERED that the judgment is affirmed, without costs.