Matter of Kroeger v Fischer
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Matter of Kroeger v Fischer 2012 NY Slip Op 32978(U) December 4, 2012 Sup Ct, Albany County Docket Number: 3990-11 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 YORK SUPREME COURT COUNTY OF ALBANY In The rntter of ANTHONY P. KROEGER, Petitioner, -against- 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 RSI # 01-1 1-ST2958 Index No. 3990-1 1 Appearances: Anthony P. Kroeger Inmate No. 08-B1220 Petitioner, Pro Se Coxsackie Correctional Facility 11260 Route 9W P.O. Box 999 Coxsackie, New York 12051-0999 Eric T. Schneiderman Attorney General State of New York Attorney For Respondent The Capitol Albany, New Yo& 12224 (William McCarthy, Assistant Attorney General of Counsel) DECISIONIORDEIUJUDGMENT George B. Ceresia, Jr., Justice The petitioner, an inmate in the custody of the New York State Department of [* 2] Correctionsand Community Supervision (L DOCCS )at Coxsackie CorrectionalFacility, has commenced the instant CPLR Article 78 proceeding to review a determination denying a grievance i which he complained that his legaI mail was improperly opened on November n 9,2010 in violation of DOCCS Directive 442 1. The grievance was denied with clarification by the Inmate Grievance Resolution Committee ( IGRC ) on November 23,20 IO. The determination recited as follows: All grievances are processed i accordance with Directive n #4040. All relevant information must be presented at the h e of filing i order for a proper investigation to be conducted at n the faciiity level. Staff needs to see the envelope [to which] grievant refers to determine if the mail was properly addressed. Grievant has not presented any evidence to substantiate his claim that his mail was not properly processed. T h e petitioner appealed to the Superintendent, who also denied the grievance in a decision dated December 3,2010 which recited as follows: Superintendentconcurs with the decision of the IGRC. Action requested by grievant is denied with clarification. AI1 grievances are processed in accordance with Directive #4040. All relevant information must be presented at the time of filing i order for a proper investigation to be conducted at the facility n level. Staff needs to see the envelope [to which] grievant refers to determine if the mail was properly addressed. Grievant has not presented any evidence to substantiate his claim that his mail w s not properly processed. a The petitioner then appealed to CORC, which accepted the apped in part in the foIlowing decision dated February 10,20 11: upon fill hearing of the facts and circumstancesi the instant n 2 [* 3] case, the action requested herein is hereby accepted in part. CORC notes that the mail from Northcare Regional Me4tal Health Services was improperly processed as regular correspondence when it should have been handled as privileged correspondence. Appropriate action has been taken i that staff n have been advised that it was entitled to privileged handling. CORC notes, however, that the grievant does not identify what other mail he alleges was not handled as privileged correspondence. Future incidents should be addressed at that time. Directive #4040 Section 70 1.6 (k) (1) states in part:... copies no of the grievance documents may go into an employee s file without the direct written consent of the employee. With regard to the grievant s appeal, CORC asserts that it is not necessary to submit a copy of the envelope with the grievance if the sender and date are identified. However, it may be necessary for investigating staff to see the envelope to confirm the allegations. CORC advises him to address any future similar concerns regarding the investigation of his grievances to the IGP Supervisor for any remedial action deemed appropriate, CORC notes that Directive #4040, Section 701.1, states, i n part, that the grievance program is not intended to support an adversary process. CORC notes that the grievant has been transferred. 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 1000,100 1 [3d Dept., 20 121; Matter of Pride v New York State Department of Correctional Services, 91 AD3d 1.003, 1004 [3d Dept., 20123; Matter of Hernandez v Fischer, 79 AD3d 1544, 1546 [3d Dept., 20 103; see also Matter of 3 [* 4] Green v Bradt, 69 AD3d 1269 [3rd Dept., 20101; Matter of Clark v Fischer, 58 AD3d 932 [3rd Dept., 20091). Phrased differently, [t]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 136 Dept., 2012; Matter of Fre-iomil v Fischer, 68 AD3d 1371 [3d Dept., 20091; Matter of Simmons v New York State Dexrmtment of CorrectionaI Services, 82 AD3d 1382, 1383 [3d Dept., 201 l]). In this instance, CORC accepted the grievance in part, and took corrective action by instructing s t a f f with regard to the proper handling of privileged correspondence. At %he same time, it also pointed out that where it is claimed that m i was not properly handled, it al is helpful to produce the subject envelope for examination, so that the allegations can be confirmed by the investigating oficer. The Court is of the view that this constitutes a reasonable and respectful resolution of the grievance. 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 4 [* 5] being delivered by the Court to the County Clerk for filing. The signing of this decisiodorderljudgment and delivery of this decision/order/judgment 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 8 December ,2012 Troy, New York Dated: Supreme Court Justice Papers Considered: 1. 2. 3. Order To Show Cause Dated June 24,201 1, Amended Order To Show Cause dated August 15,201 1, Petition, Supporting Papers and Exhibits Respondent s Answer Dated April 1 0,2012 Petitioner s Reply Dated September 10,2012 5
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