Matter of Barnes v Fischer

Matter of Barnes v Fischer 2013 NY Slip Op 06042 Decided on September 26, 2013 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 26, 2013
514888

[*1]In the Matter of JESSIE J. BARNES, Appellant,

v

BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: July 29, 2013
Before: Lahtinen, J.P., Stein, McCarthy and Spain, JJ.


Jessie J. Barnes, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Kathleen M. Treasure of counsel), for respondents.


MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Zwack, J.), entered February 28, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review two determinations of the Central Office Review Committee denying petitioner's grievances.

Petitioner, a prison inmate, has an extensive prison disciplinary record demonstrating his predilection toward violent and abusive behavior (see e.g. Matter of Barnes v Prack, 101 AD3d 1277, 1277-1278 [2012]; Matter of Barnes v Fischer, 93 AD3d 967, 967-968 [2012]; Matter of Barnes v Prack, 87 AD3d 1251, 1251-1252 [2011]). As a result of that behavior, he was placed under a fixed protective hatch cover order and a retention strap order in 2010 [FN1]. Petitioner filed grievances challenging both orders and, after they were denied by the Central [*2]Office Review Committee, he commenced the present CPLR article 78 proceeding. Supreme Court found the determinations to be neither arbitrary nor capricious and dismissed the petition, prompting this appeal.

We affirm. In light of petitioner's penchant for disruptive and assaultive conduct, the denials of his grievances were "rationally based upon legitimate security" concerns (Matter of Green v Bradt, 91 AD3d 1235, 1237 [2012], lv denied 19 NY3d 802 [2012]; see Turner v Safley, 482 US 78, 89 [1987]; Matter of Malik v Wilhelm, 159 AD2d 755, 756 [1990], lv denied 76 NY2d 704 [1990]). As the Central Office Review Committee correctly noted, neither a retention strap nor a hatch cover constitutes restraints to which the notice and renewal requirements of 7 NYCRR 305.4 apply (see 7 NYCRR 305.3 [a]; cf. Matter of Malik v Wilhelm, 159 AD2d at 756). Petitioner's remaining contentions have been examined and found to be unpersuasive.

Lahtinen, J.P., Stein, McCarthy and Spain, JJ., concur.

ORDERED that the judgment is affirmed, without costs. Footnotes

Footnote 1: A retention strap is a three-foot long nylon cord tied to the center piece of handcuffs that is intended to prevent their theft or use as a weapon by the restrained inmate. A protective hatch cover blocks the feed-up hatch in a special housing unit cell door and stops an inmate from, among other things, throwing items at correction officers.