Matter of Donah v Annucci
Annotate this CaseDecided on December 16, 2015
Supreme Court, Franklin County
In the Matter of the Application of Jason Donah, No.13-R-1720, Petitioner, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
against
Anthony J. Annucci, Commissioner, NYS Department of Corrections and Community Supervision, and FRANKLIN CORRECTIONAL FACILITY MEDICAL DEPARTMENT, Respondents.
2015-307
S. Peter Feldstein, J.
This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the Petition of Jason Donah, verified on March 27, 2015 and filed in the Franklin County Clerk's office on April 3, 2015. At the time of filing the Petition was apparently lacking a page three. Petitioner subsequently supplied chambers with an additional copy of page three and such additional copy was filed in the Franklin County Clerk's office (to be added to the underlying petition). Petitioner, who is an inmate at the Franklin Correctional Facility, purports to challenge the accuracy of the medical records/reports apparently supplied to the DOCCS Central Office in connection the review of his applications for presumptive work release.
The Court issued an Order to Show Cause on April 30, 2015 and has received and reviewed respondents' Notice of Motion to Dismiss, supported by the Affirmation of Christopher John Fleury, Esq., Assistant Attorney General, dated June 19, 2015, as well as by the Affidavit of Priscilla A. Ledbetter, DOCCS Director of Temporary Release Programs, sworn to on June 17, 2015 (the "Ledbetter Affidavit"). Respondents' motion to dismiss is premised upon the assertion that petitioner failed to exhaust available administrative remedies. The Court has also received and reviewed petitioner's Affirmation in Opposition to Motion to Dismiss, sworn to on August 15, 2015, received directly in chambers on August 24, 2015 and intended to be filed in the Franklin County Clerk's office simultaneously with this Decision, Order and Judgment.
On or about June 3, 2014 petitioner submitted an application (#201406500) for presumptive work release to participate in the DOCCS Comprehensive Alcohol and Substance Abuse Treatment (CASAT) program. That application was approved at the facility level on June 12, 2014 but disapproved by the Central Office Reviewer on July 21, 2014 based upon the following: "PER FACILITY THE INMATE IS NOT MEDICALLY SUITABLE TO PARTICIPATE IN TEMPORARY RELEASE PROGRAMS." The July 21, [*2]2014 disapproval determination specified that petitioner could reapply for presumptive work release after September 15, 2014.
On or about October 7, 2014 petitioner again submitted an application (#201412776) for presumptive work release to participate in the CASAT program. This application was approved at the facility level on October 10, 2014 but disapproved by the Central Office Reviewer on February 27, 2015 based upon the following: "PER FACILITY MEDICAL STAFF THE INMATE HAS CONTRAINDICATION TO PARTICIPATING IN TEMPORARY RELEASE PROGRAMS." The February 27, 2015 disapproval determination specified that petitioner could reapply for presumptive work release after August 27, 2017. A second, presumably superceding, disapproval determination was issued by the Central Officer Reviewer on March 11, 2015 with respect to application #201412776. The second disapproval determination was identical to the first except that it specified petitioner could reapply for a presumptive work release after August 1, 2015, rather than August 27, 2017.
The record with respect to petitioner's administrative appeals from any of the Central Office Reviewer's disapproval determinations is uncertain. Respondents' motion papers make no reference to any administrative appeal from the Central Office Reviewer's July 21, 2014 disapproval determination with respect to application #201406550. In paragraph 15 of counsel's supporting Affirmation of June 19, 2015, however, it is asserted, upon information and belief, that " . . . the [DOCCS] Central Office Temporary Release received Petitioner's administrative appeal of the denial of his [presumptive work release/CASAT] application no. 201412776 on March 26, 2015. See Exhibit's A and H." (Emphasis in original). Exhibit A is the Ledbetter Affidavit and Exhibit H is a letter from petitioner to Karl Koenigsmann, DOCCS Chief Medical Officer, dated February 24, 2015. In paragraph five of the Ledbetter Affidavit it is asserted that "[t]he [DOCCS] Central Office received an administrative appeal from Inmate Jason Donah . . . on March 26, 2015 challenging the denial of his CASAT application (Application No. 201412776). See Exhibit A." (Emphasis in original). The Exhibit A, annexed to the Ledbetter Affidavit includes a copy of the previously-referenced February 24, 2015 letter from petitioner to Chief Medical Officer Koenigsmann. Although it is not clear precisely how petitioner's February 24, 2015 letter came into the possession of the DOCCS Director of Temporary Release Programs in the context of an administrative appeal from the Central Office Reviewer's presumptive work release/CASAT disapproval determination of February 27, 2015/March 11, 2015, it certainly appears that the Director of Temporary Release Programs considered (is considering?) the letter as constituting petitioner's administrative appeal. In paragraphs seven and eight of the Ledbetter Affidavit the following is asserted: "In reviewing Inmate Jason Donah's . . . administrative appeal . . . the Central Office has ordered new and up-to-date medical reports regarding his medical suitability for the CASAT program. It will rely upon these reports in making its final determination regarding his appeal . . . As of this writing [June 17, 2015], a final determination for Inmate Donah's . . . administrative appeal has not yet been made by the Central Office."
Petitioner, for his part, makes no mention in the petition of any formal administrative appeal from the Central Office Reviewer's disapproval determination with respect to application #201412776. After referencing his receipt of the two disapproval determinations (February 27, 2015 and March 11, 2015), the following is asserted in paragraphs 10, 11 and 12 of the Petition: "Petitioner has filed grievances, and has written [*3]many letters to and from facility staff members. Petitioner has been to sick-call several times, and has not of yet been evaluated by a doctor or certified physician to make an accurate assessment of his present condition . . . Finally, petitioner F.O.I.L. requested the medical document that the Temporary Release Reviewer has relied on to deny him Temporary Release, and upon inspection of this document is found to be NOT from any medical doctor or certified physician, but from a Key Board Specialist . . . a clerk at the facility . . . Dated June 12, 2014, this document has prejudiced the petitioner in receiving a favorable decision from Central Office. The Temporary Release Reviewer is relying on erroneous information to deny Mr. Donah Temporary Release." In paragraph 6(a) of his Affirmation in Opposition to Motion to Dismiss, moreover, petitioner affirmatively states that he did not take an administrative appeal from the February 27, 2015/March 11, 2015 Central Office Reviewer disapproval determination with respect to application #201412776. Although no reference to an administrative appeal from the Central Office Reviewer's July 21, 2014 disapproval determination with respect to application #201406500 is included in the main body of the Petition, Exhibit C (annexed to the Petition) includes a cover sheet identifying one of the documents set forth therein as "Appeal to K. Scanlon, T.R. Reviewer [Central Office Reviewer]." The document in question is a memorandum from petitioner to Central Office Reviewer Scanlon dated July 22, 2014 relating to "Application for Presumptive Work Release." Although petitioner's memorandum does not reference the aforementioned June 12, 2014 "medical document," it does not appear that petitioner could have referenced that document in his July 22, 2014 memo to Central Office Reviewer Scanlon. The record herein suggests that petitioner did not receive a copy of the June 12, 2014 "medical document" - through the FOIL process - until October 27, 2014.
The June 12, 2014 "medical document," a copy of which is annexed to the Petition as Exhibit E(b) thereof, consists of a memorandum to the Facility Health Services Director from an unspecified individual with the title "KBS II - Franklin C. F. Guidance - Temporary Release Program," regarding petitioner's medical suitability for work release. The memorandum describes petitioner as being "wheelchair bound" with "spastic neuropathy [and] Atrophy/weakness all extremities . . ." The memorandum concludes by asserting that " . . . [b]ased upon the above assessment, the inmate . . . is not eligible to participate in a Temporary Release program." Petitioner, on the other hand, maintains that his medical limitations are substantially less severe then described in the June 12, 2014 "medical document" and should not prevent him from participating in the temporary release program.
Based upon the Court's reading of the Petition it is questionable whether or not petitioner even purports to challenge any disapproval determination of the Central Office Reviewer. In paragraph 21 of the Petition it is asserted that " . . . the petitioner in no-way is challenging the Temporary Release Program, and it's Reviewer, because the Reviewer is only going by what Franklin C. F. medical department has written and that report is inaccurate, and erroneous . . . That report must be Ordered NULL & VOID and the determination VACATED . . . However, if that medical report is the only thing the T.R.P. Reviewer is relying on than that determination must be Vacated as well." (Emphasis in original).
"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of [*4]law. This doctrine furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency, preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgment.'" Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52, 57 (citations omitted). See CPLR §7801.
To the extent the petition might be construed as including a challenge to the accuracy of the medical information set forth in the June 12, 2014 "medical document" apparently provided to the Central Office Reviewer and allegedly utilized in connection with the review/disposition of both of petitioner's presumptive work release/CASAT applications, respondents argue that such challenge must be dismissed based upon petitioner's failure to exhaust available administrative remedies. In this regard the following is asserted in paragraphs 10 and 12 of the June 19, 2015 Affirmation of Christopher John Fleury, Esq. Assistant Attorney General:
"Pursuant to the New York State Department of Corrections and Community Supervision Division of Health Services Policy Manual (herein- after HSPM') Item #4.02, an inmate may challenge the accuracy of a medical record by submitting Form HS120 ( Request to Change my Health Record') to the Nurse Administrator or Designee. The request will then be forwarded to the author of the disputed record, who will fully investigate the request and make a determination . . . Upon information and belief, Petitioner has failed to submit Form HS 120 in accordance with HSPM Item #4.02 to challenge the accuracy of the medical reports he now challenges in his Article 78 petition. Petitioner has failed to utilize the administrative process that could have provided him the remedy he now seeks prior to the commencement of this proceeding. Therefore, he has failed to exhaust his administrative remedies, this matter is not properly before the Court, and the Petition must be dismissed in its entirety." (Reference to exhibit omitted).
The Court has some concerns with respect to the respondents' reliance on the review process set forth in Item #4.02 of the Health Services Policy Manual as the basis for their exhaustion defense. However, even if it was ultimately determined that petitioner was not required to challenge the accuracy of his health records in accordance with the procedures set forth in the manual, he would still be required to challenge the accuracy of such records in the context of the Inmate Grievance Program set forth in 7 NYCRR Part 701.
Although the record is not entirely clear, it does appear petitioner commenced a grievance proceeding (FKN -11074-14) wherein his medical suitability to participate in a temporary release program was front and center. The record suggests, however, that inmate grievance FKM-11074-14 was dismissed and closed at the Inmate Grievance Resolution Committee (IGRC) level based upon a unanimous determination of the committee that petitioner was, in effect, " . . . seeking a decision or an appeal of a decision otherwise obtainable through the established procedures for . . . temporary release . . ." 7 NYCRR §701.5(b)(4)(i)(c)(1). See 7 NYCRR §701.3(e)(2). Petitioner sought review of the IGRC dismissal by application to the facility Inmate Grievance Program Supervisor [*5]pursuant to the provisions to 7 NYCRR §701.5(b)(4)(iii). By memorandum dated September 9, 2014, however, the Inmate Grievance Program Supervisor at the Franklin Correctional Facility upheld the IGRC determination to dismiss petitioner's grievance FKN-11074-14. As part of the September 9, 2014 memorandum, petitioner was advised that he " . . . may pursue a complaint that the IGP supervisor failed to reinstate an improperly dismissed grievance by filing a separate grievance." See 7 NYCRR §701.5(b)(4)(iii). There is nothing in the record of this proceeding to suggest that petitioner ever filed such a separate grievance.
On or about September 26, 2014 petitioner did file an additional grievance (FKN-11171-14), stating, in relevant part, as follows: " . . . I do not want any more medical trip and release Franklin Corr. Fac. Medical Staff on my medical issue. I will gladly sign any paper work that's needed to release Franklin Corr. Fac. as well as DOC[CS] medical. I don't need to be under their care for my medical issue. What I like done. Want Franklin Fac. to deem myself work suitable." Thus, in his September 23, 2014 inmate grievance complaint petitioner failed to articulate a specific challenge to the accuracy of any information set forth in his medical records. As noted previously, however, it does not appear that he received a copy of the June 12, 2014 "medical document" until October 27, 2014.
By Decision dated October 14, 2014 the Superintendent of the Franklin Correctional Facility denied petitioner's grievance (FKN-11171-14) as follows:
"The grievant's assertion, that he should be permitted to file a blanket statement refusing all medical treatment, is without merit. Medical professionals have an obligation to help patients to understand their medical issues, the treatments/options available and recommended, and the risks. Once the risks and benefits are explained, the grievant may chose to refuse a specific treatment. However, there is no process to create or apply a one-time refusal of all possible future medical interventions.
The grievant's assertion, that his medical condition should not be the basis for any program or work restrictions, is likewise without merit. Inasmuch as DOCCS is charged to protect the inmates under its care, it would be irresponsible to take no action when faced with a known risk. It is important to note that grievant is not restricted from programs and activities, but only certain work assignments and activities that have likely health impacts."
Petitioner took an administrative appeal from the superintendent's decision of October 14, 2014 to the Inmate Grievance Program Central Office Review Committee (CORC). A copy of the June 12, 2014 "medical document" was apparently included by petitioner as part of his administrative appeal to the CORC. By decision dated February 4, 2015, however, the CORC upheld the determination of the facility superintendent for the reasons stated by the superintendent. In its decision the CORC noted as follows:
" . . . [T]he grievant is eligible for programs and is currently assigned as a computer operator; he is only restricted from working in the mess hall. It is also noted that he was evaluated in June 2014, and the Facility Health Services Director (FHSD) determinated that he was not medically suitable to participate in the Temporary Release Program. The CORC asserts that he [petitioner] has the right to refuse medical care at the point of service.
CORC asserts that, consistent with Health Services Policy Manual (HSPM) Item #1.43 - Specialty Care Referrals, the FHSDs have the sole responsibility for providing treatment to the inmates under their care and the responsibility of determining what outside health referrals are needed by the target population.
In regard to grievant's appeal, CORC asserts that all relevant information must be presented at the time of filing in order for a proper investigation to be conducted at the facility level. CORC advises him [petitioner] that the accuracy of medical records can be challenged in accordance with HSPM, Item #4.02, and to address medical concerns via sick call. CORC has not been presented with sufficient evidence of improper medical care or malfeasance by staff."
Given petitioner's complete failure to challenge the accuracy of his medical records in accordance with the procedure set forth in Item #4.02 of the DOCCS Division of Health Services Policy Manual, and given petitioner's failure to specifically challenge the accuracy of his medical records in the context of any inmate grievance proceeding, the Court agrees that petitioner has failed to exhaust administrative remedies with respect to this issue. To the extent the Petition might be construed as including a challenge to any determination(s) denying a presumptive release/CASAT application, the Court likewise finds that petitioner has failed to exhaust administrative remedies. In this regard it is noted that an administrative appeal from a temporary release disapproval determination of the Central Officer Reviewer is properly taken to the DOCCS Director of Temporary Release Programs. See 7 NYCRR §1900.6. There is nothing in the record to indicate that petitioner took such an administrative appeal from the Central Office Reviewer's July 21, 2014 disapproval determination with respect to application #201406500. Petitioner's July 22, 2014 memorandum to the Central Officer Reviewer does not function as an administrative appeal from the disapproval determination since it was not addressed to the DOCCS Director of Temporary Release Programs. As far as petitioner's Presumptive Work Release /CASAT application #201412776 is concerned, petitioner's specifically denies that he ever took an administrative appeal from the Central Office Reviewer's February 27, 2015/March 11, 2015 disapproval determination. To the extent DOCCS officials perceive that such an appeal was taken, the Court simply notes that no decision on administrative appeal had been issued at the time that this proceeding was commenced by filing on April 3, 2015. See CPLR §304(a).
Based upon all of the above, it is, therefore, the decision of the Court and it is hereby
ORDERED, that respondents' motion is granted; and it is further
ADJUDGED, that the petition is dismissed.
Dated:December 16, 2015 at
Indian Lake, New York.__________________________
S. Peter Feldstein
Acting Supreme Court Justice
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