Matter of Davis v Fisher

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Matter of Davis v Fisher 2012 NY Slip Op 31695(U) June 5, 2012 Sup Ct, Albany County Docket Number: 7335-11 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 YOFX SUPREME COURT COUNTY OF ALBANY In The Matter of the Application of DONNELL E. DAWS. Petitimer, For A Judgment Pursuant to h i d e 78 of the Civil Practice Law and Rules, "againstBRIAN FISHER, Commissioner of the New York State Department of Corrections and Community Supervision (DOCCS), Respondents. Supreme Court Albany County Article 78 Term Hon. George 13. Ceresia, Jr., Supreme Court Justice Presiding IiJI No. 01-12-ST3294 Index No.7335-11 Appearances : Donne11 E. Davis Inmate No. 98-A-1768 Petitioner, Pro Se Sullivan Correctional Facility P.O. Box 116 325 Riverside Drive FalIsbWg, NY 12733-0116 Eric T. Schneiderman Attorney General State of New Yo& Attorney For Respondent The Capitol Albany, New York 12224 (Gregory J. Rodriguez, Assistant Attorney General of Counsel) DECISIONlORDEW J U D G ~ ~ E N T George B. Ceresia, Jr., Justice The petitioner, an inmate at Sullivan Correctional Facility, commenced the institiit [* 2] CPLR Article 78 proceeding to review an adverse grievance determination of the Central Ofice Review Committee ( C0RC )with regard to failure of the respondent DOCCS to permit him to possess a television set. Among the arguments advanced by the petitioner, he maintains that Directive #492 1, upon which the respondent.relies, constitutes an ineffective and unenforceable rule by reason that it has not been filed with the New York State Secretary of State, in violation of NY Constitution art 4 6 8 and ExFcutive Law 0 102 (1). The Inmate Grievance Resolution Committee ( IGRC ), on April 2 1,ZO 1 1, issued the following determination: As DSP Malin states, this is not a TV Facility, therefore, vividly showing how the grievant is not affected by the issue he brings before this committee. However, since it is a matter that does have the potentia1 to affect the general population, the IGRC recommends that the grievant contact his ILC block rep. with a brief outline of his concerns and seek to have the needed vote because this is the initid vehicle to bring about televisions. The petitioner appealed to the Superintendent, who aIso denied the grievance in a decision dated May 4,20 1 1which recited as follows: Grievant is requesting to be permitted to purchase a personal television. DSP has stated that Directive #492 1 governs the acquisithn, use, and disposition of inmate television sets. This Directive only applies to faciZities designated as a TV Facility , which Sullivan C.F. is not. Action requested in his grievance is denied. The petitioner then appealed to CORC, which denied the appeal i a decision dated August n 10,20 1 1 ,which recited as follows: L6Upon hearing of the facts and circumstances in the instant full 2 [* 3] case, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated. CORC asserts that Directive #4921 only applies to those facilities designated as TV facilities. Sullivan CF is not a TV facility. There is no provision in Directive #4911 to allow an inmate to receive a television in a non TV facility. CORC asserts that there is no requirement that Directive #492 1 be filed with the NYS Department of State, With regard to the Grievant s appeal, CORC notes that his packages are not restricted by Directive # 492 1 because is does not affect Sullivan CF. 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 Hernandez v Fischer, 79 A133d 1544,1546 [3d Dept.,20 101quoting Matter ofBermudezvFischer, 71 AD3d 1361,1362 E20101 Ivdenied 15 NY3d 702,20101; seedso Matter of Green v Bradt, 69 AD3d 1269 [3rd Dept., 20101; Matter of Clark v Fischer, 58 AD3d 932 [3rd Dept., 20091). Phrased differentIy, [t]o prevail, petitioner must demonstrate that the Central Office Review Cornittee s determination was arbitrary and capricious or without a rational basis (Matter of Patel Y Fischer, 67 AD3d 1 193 [3rd Dept., 20091 citing Matter ofKeesh v Smith, 59 AD3d 798,798 [2009]; Matter of Green v Bradt, supra; Matter of Fre-iomil v Fischer, 68 AD3d 1371 [3d Dept., 20091; Matter of Simmons v New York State Department ofCorrectiona1 Services, 82 AD3d 1382, 1383 [3d Dept., 20 111). As stated in Directive # 492 1 : Purpose. This directive governs the acquisition, use and disposition of inmate television sets. 11. Policy. Inmates may own and use personal television 3 [* 4] sets at facilities which have been approved for such use by the Commissioner, and after a majority of the affected inmate population has voted for that option. [f Directive # 49 11, entitled Packages & Articles Sent or Brought to Facilities does not list a television as an allowed item. On its face, because the petitioner has not demonstrated that he resides at a facility where the possession of televisions is authorized, the Court finds that he has failed to satisfy his burden of demonstrating that the determination of CORC was irrational, arbitrary and capricious, or effected by an error of law. To the contrary, CORC s determination is consistent with DOCCS policy, as embodied in Directive # 492 I. With regard to petitioner s argument that Directive #492 1 constitutes an unfiled rule i violation ofIdy Constitution art 4 0 8 and Executive Law Q 102, said Directive sets forth n a procedure for approval of possession of televisions within correctional facilities. The approval process, which relates to the internal management of DOCCS, is exempt fiom the filing requirements applicable under Executive Law Q 102 & Executive Law 6 102 [b]). Moreover, Directive # 492 1 is not a fixed general principal having any direct application to the petitioner. Rather it establishes a routine practice implemented at certain correctional facilities, after a vote by prison inmates, and only as authorized by the Commissioner (see Shabazz v Portuondo, 260 AD2d 733 [3d Dept,, 19991). Apart from the foregoing, as The only reference to televisions in Directive 449 1 1 is the folIowing: B. This directive applies to inmates housed in facilities wherein the inmate population has elected under Directive #4921, Inmate Televisions Sets to possess personal television sets; however, package privileges for such inmates are restricted (see Directive #492 1 for package restrictions). 4 [* 5] pointed out by the respondents, because Sullivan Correctional Facility is not a TV facility, the petitioner has not demonstratedthat he has suffered an injury-in-fact, sufficientto acquire standing to chdlenge the Directive (seeNY State Ass n of Nurse Anesthetists v Novello, 2 NY3d 207, at 21 1 [2002], which cites Society of Plastics Indus. v County of Suffolk, 77 NY2d 76 I, 769 [ 199 1 and Matter of ColelIa v Board of Assessors, 95 NY2d 401,409-410 [2000]; see also Graziano v County of Albany, 3 NY3d 475, at 479 [2004]). The Court has reviewed and considered petitioner remaining arguments and contentions and finds them to be without merit. The Court finds that the petitioner failed in his burden to demonstrate that the grievance determination was made in violation of lawful 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 and ADJUDGED, that the petition be and hereby is dismissed. This shall constitute the decision, order and judgment of the Court. The original decisionlorderljudgmentis returned to the attorney for the Respondent. All other papers are being delivered by the Court to the County Clerk for filing. The signing of this decisionlorderljudgment and ddivery of this decisio~lorderljudgmentdoes 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: Troy, New York I I 1 5 [* 6] Supreme Court Justice Papers Considered: 1. 2. 3. Order To Show Cause dated December 12,20 11, Petition, Supporting Papers and Exhibits Respondent s Answer dated February 10, 2012, Supporting Papers and Exhibits Petitioner s Reply to Respondent s Answer, dated 6

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