Matter of Johnson v Ramsdell

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Matter of Johnson v Ramsdell 2012 NY Slip Op 31691(U) June 21, 2012 Sup Ct, Albany County Docket Number: 4571-11 Judge: George B. Ceresia Jr Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YOWL SUPREME COURT COUNTY OF ALBANY In The Matter of JONATHAN JOHNSON, Petitioner, -againstTIMOTHY RAMSDELL, PRISON GUARD; BRIAN FISCHER, COMMISSIONER, NYSDOCS, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-11-ST2865 Index No. 4571-1 1 Appearances : Jonathan Johnson Inmate No. 8 9 4 - IO42 Petitioner, Pro Se Upstate Correctional Facility P.O. Box 2000 309 Bare Hill Road Malone, NY 12953 Eric T. Schneideman Attorney General State of New York Attorney For Respondent The Capitol Albany, New York 12224 (William J. McCarthy, Assistant Attorney General of Counsel) DECISIQNlORDEWJUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate at Upstate Correctional Facility, commenced the instant CPLR Article 78 proceeding to direct respondent Timothy Ramsdell, a Correction Officer, to return mail aIIegedly confiscated by respondent Ramsdell on February 17, 201 1. The [* 2] respondent, in response, made a motion to dismiss the petition under CPLR 7804 (c) on grounds that the petitioner failed to properly serve tke order to show cause upon the respondent or the Attorney General, and that the petition failed to state a cause of action. In a decision-order dated January 13,20 12, the Court partially granted and partially denied the motion to dismiss. The Court, construing the petition liberally (see CPLR 3026), found that the petition adequately stated a cause of action under CPLR Article 78 to review a determination which denied a grievance the petitioner had filed in connection with the foregoing incident. The Court also found, however, that the petition failed to set forth facts sufficient to state a claim for violation of his constitutional rights, which it dismissed. By reason of respondents assertions that the papers were not properly served, the Court directed the petitioner to re-serve the order to show cause, petition and supporting papers upon the respondent. * The petitioner subsequentlyrequested an extension of time to serve the papers, which was granted in an order dated February I4,20 12. The papers apparently were served, and the respondent has now served an answer. Before reaching the merits of the petition, the Court must first address a motion the petitioner made pursuant to CPLR222 I to reargue and renew the Court s order dated January 13, 20 12. The petitioner argues that h e Court erred in dismissing his claim that the nondelivery of his mail was an infringement of his constitutional right to access to the courts; and in denying his motion to amend the petition to assert a claim for money damages. A motion to reargue, directed to the sound discretion of the Court, must demonstrate Inaddition, the Court denied a motion of the petitioner to amend the petition to add a claim for $1,000,000.00 in money damages. 2 [* 3] that the Court overlooked, misapplied or misapprehended the relevant facts or law (see, CPLR 2221 [d] [ 2 ] ; Loris v S & W Realty Coy., 16 AD3d 729, 730 [3d Dept., 20051; Matter of Smith v Town of Plattekill, 274 AD2d 900: 90 1-902 [3d Dept., 20001; Spa Realty Associates v+Springs Associates, 2 13 AD2d 78 1, 783 [3rd Dept., 19951; Grassel v Albany Medical Center, 223 AD2d 803, 803 [3rd Depia, 19961). Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (see,Folev v Roche 68 AD2d 558,567 [lst Dept., 1979]), Iv denied 56 NY2d 507). A motion to renew must be based upon newIy discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal (seeCPLR 2221 [e] 121; M & R Ginsburg, LLC v Orange Canyon Development Company. LLC, 84 AD3d 1470,1472 [3d Dept., 20 1 I]; 2 North Street Corporation v Gettv Saugerties Corporation, 68 AD3d 1392,1396-1397 [3d Dept., 20091; First Union Bank v Williams, 45 AD3d 1029, 1030-103 I [3rdDept., 20071; Spa Really Associates v. Springs Associates, supra, at p. 783; Grassel v. Albany Medical Center, supra, at p. 8041, or upon a demonstration that there has been a change in the law that would change the prior determination (see,CPLR 222 1 [e]123). It must also demonstrate a reasonablejustification for not placing such new facts before the Court on the original application (see,CPLR 2221 [e] [3]; Matter of Mouawad, 61 AD3d 1169 [3rdDept., 20091; First Union Bank v Williams, supra; see also, Spa Realty Associates v. Springs Associates, supra, at p. 783-784; Grassel v. Albmv Medical Center, supra, at p. 804; Barnes v State, 159 AD2d 753,753, 754 [3rd Dept., I990 I). Renewal is not a means by which to remedy the failure to present evidence which, with due diligence, could have been produced at the time of the original motion (Kahn v tew, 52 AD3d 928, 930 [3rd 3 [* 4] Dept.,2008], citing Tibbits v Verizon N.Y.. Inc., 40 AD3d 1300, at 1303, Johnson v Title N., 3 1 AD3d at 1072, Matter of Cooke Ctr. for Learning 62 Dev v Milk, 19 AD3d at 837, arid N.A.S. Partnership v Kligemian, 27 I AD2d 922,923 [2000]). In this instance, the petitioner has not demonstrated how, or in what respect, the Court overlooked, misapplied or misapprehended the relevant facts or law. Nor has the petitioner presented newly discovered evidence, not available at the time of the original motion. The Court concludes that petitioner s motion to reargue andor renew must be denied. Turning to the merits, petitioner s grievance, dated February 18,20 11, indicates that on February 17,2011 respondent Correction Officer Timothy Ramsdell. denied grievant his legal mail fiom the courts, which appeared on the legal mail sheet. He requested that m investigation be conducted with respect to the foregoing matter. The grievance was denied by the Inmate Grievance Resolution Committee ( IGRC ) on March 15,20 1 1. The IGRC stated: [tlhere is no evidence to support Grievant s allegation of being denied legal mail by officer. The petitioner appealed to the Superintendent, who upheld denied of the grievance in a decision dated March 22,201 3 which recited as follows: I concur with the response from the I.G.R.C. The grievant is advised that all the issues raised in this grievance are addressed in the response of the I.G.R.C. The Oficer named in the grievant s complaint has submitted a written statement which states that at no time has he denied the grievant his legal mail. There is no evidence to support the grievant s allegation of being denied legal mail. The petitioner then appealed to CORC, which denied the appeal in a decision dated June 8, 20 11. The determination recited: 4 [* 5] Upon full hearing of the facts and circumstances in the instant case, the action requested herein is hereby accepted only to the extent that CORC upholds the determination of the Superintendent for the reasons stated. CORC notes that CO R. . . states he did not refuse the grievant his legal maiI on February 17, 20 1 1, and that a review of the legal mail log fur 2/17/ 1 I indicates that he refused to sign for his mail. CORC advises the grievant to address future similar concerns to the area supervisor, at that time, for the most expeditious means of resolution. With regard to grievant s appeal, CORC upholds the discretion ofthe facility administration to review videotapes when deemed necessary based on security concerns, unusuaI incidents, etc. Judicial review of administrative decisions denying inmate grievances is limited to whether the determination is irrational, arbitrary or capricious or affected by an error of law (Matter of Ramsey v Fischer, 93AD3d 1000, 1001 [3d Dept., 20 121; Matter of Pride v New York State Department of Correctional Services, 91 AD3d 1003, 1004 [3d Dept., 20121; Matter of Hernandez v Fischer, 79 AD3d 1544, 1546 [3d Dept., 20101; see also Matter of Green v Bradt, 69 AD3d 1269 [3rd Dept., 20103; Matter of Clark v Fischer, 5 8 AD3d 932 [3rd Dept., 20091). Phrased differently, [ t j o prevail, petitioner must demonstrate that [the Central Office Review Committee s] determination was arbitrary and capricious or without a rational basis (Matter of Green v Bradt, 91 AD3d 1235, 1237 [3d Dept., 2012; Matter of Frejomil v Fischer, 68 AD3d 1371 [3rdDept., 20091; Matter of Simmons v New York State Department of Correctional Services, 82 AD3d 1382, I383 [3d Dept., 20 1 11). As the attorney for the respondent points out, the mail log for the date in question contains a notation that the petitioner reksed his mail. Under procedures adopted by the New York State Department of Corrections and Community Supervision (DOCCS), upon 5 [* 6] refusal to sign for his Iegal mail, the mail would have been returned to the sender marked addressee refused to accept (see 7 NYCRR 721.3 [b][6]; DOCCS Directive 442 1 5 72 1.3 [bJ [6] [i]). The COWfinds that the petitioner failed in his burden to demonstrate that the grievance determination was made in violation of lawfuI procedure, is affected by an error of law, is irrational, arbitrary and capricious, or an abuse of discretion. The Court concludes that the petition must be dismissed. Accordingly, it is ORDERED,&at petitioner s motion to reargue andmrenew the decision-orderdated January 13,2012 is denied; and it is ORDERED and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Couit The original decisionlorderljudgment is returned to the attorney for the respondents. A11 other papers are being delivered by the Court to the County Clerk for filing. The signing of this decision/order/judgment and delivery of this decisionlorderljudgment does not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER Dated: June Jt9,2012 Troy,New York - f i 4 mi George B. Ceresia, Jr. Supreme Court Justice Papers Considered: I. 2. 3. 4. Order To Show Cause dated July 21, 201 I , Petition, Supporting Papers and Exhibits Petitioner s Motion To Reargue and Renew, filed January 23,2012 Respondent s Letter dated January 3 1,2012 Respondent s Answer dated April 30,201 2 , Supporting Papers and Exhibits 6 [* 7] STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY In The Matter of JONATHAN JOHNSON, Petitioner, "againstTIMOTHY RAMSDELL, PRISON GUARD; BRIAN FISCHER, COMMISSIONER, NYSDOCS, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules. Supreme Court Albany County Article 78 Term Hon. George 13. Ceresia, Jr., Supreme Court Justice Presiding RJI # 01-1 1-ST2865 Index No. 4571-1 1 SEALING ORDER The following documents having been filed by the respondent with the Court for in camera review in connection with the above matter, namely, two copies of respondent's Exhibit A, Confidential.Material Submitted to the Court for In Camera Review, it is hereby ORDERED, that the foregoing designated documents, including all duplicates and copies thereof, shall be filed as sealed instruments and not made available to any person or public or private agency unIess by further order of the Coutt. ENTER Dated: a/ June ,2012 Troy, New York George B. Ceresia, Jr. Supreme Court Just ice :' \I

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