Charles B. V McCulloch
Annotate this CaseDecided on April 26, 2018
Supreme Court, Oneida County
Charles B., Petitioner,
against
Deborah McCulloch, Executive Director of Central New York Psychiatric Center ("CNYPC"), Respondent.
CA2018-000479
Charles B., a self-represented litigant
David A. Murad, J.
Petitioner filed a motion for poor person status under Article 11 of the Civil Practice Law and Rules (CPLR) to prosecute a habeas corpus proceeding. Petitioner submitted a "notice of motion to proceed without payment of fees", affirmed on February 8, 2018, alleging he has no assets and is unable to pay the costs, fees and expenses necessary to prosecute the matter. The Court notes that it does not appear that petitioner has served the Oneida County Attorney with notice of his application for poor person status.
In support of the merit of his proceeding, petitioner submitted a "petition for writ of habeas corpus" that was affirmed and undated, with exhibits A - C. Petitioner claims he is entitled to release from involuntary confinement as a Mental Hygiene Law (MHL) Article 10 detainee because he has not been afforded a timely evidentiary hearing pursuant to MHL § 10.09 [d].
CPLR § 1101 mandates that the Court review the merits of any potential claim in its consideration of an application to waive or reduce applicable fees and costs. Upon the most favorable reading of petitioner's papers, the Court is constrained to conclude that he is not entitled to habeas corpus relief for the following reasons.
MHL § 10.09, which governs annual examinations and petitions for discharge, provides the procedure by which the annual review process, and petitions for discharge, are to be adjudicated. While the statute allows a civil detainee to pursue a petition for discharge where that right is not affirmatively waived, a delay in holding the hearing does not result in an [*2]entitlement to immediate release from custody. Habeas corpus relief is not available when there is no entitlement to immediate release from custody, even where the petitioner's contention has merit. (People ex rel. Lewis v Graham, 96 AD3d 1423 [4th Dept 2012].)
The proposed petition for habeas corpus also is deficient in that it fails to provide a copy of the cause of petitioner's detention or mandate. The Court "is bound by the record before it . . . inasmuch as the petition . . . failed to attach or annex to it the mandate under which petitioner is detained or an explanation for why a copy of that mandate could not be obtained." (People ex rel. Chaney v Dagostino, 137 AD3d 1436 [3d Dept 2016], citing People ex rel. Medina v Senkowski, 265 AD2d 779 [3d Dept 1999]; see also NY CPLR § 7002 [c] [1].)
Finally, to the extent that petitioner may be entitled to relief under CPLR Article 78, petitioner is aware of and has submitted copies of documents in a currently pending Article 78 proceeding under Index No. CA2017-002394, and RJI No. 32-17-0901, commenced on November 14, 2017. Petitioner herein is one of several named petitioners in the pending 2017 proceeding; he appears in the caption as "Charles B., Consec. No. 262223." The pending 2017 proceeding, being prosecuted by the Mental Hygiene Legal Service (MHLS), seeks to obtain relief from the same alleged delay in the annual review of civil detainees under MHL § 10.09. As such, petitioner's rights are being protected by and advocated through the previously filed Article 78 proceeding, currently scheduled for return before this court on May 23, 2018.
Accordingly, it is
ORDERED, that Petitioner is hereby DENIED PERMISSION to proceed as a poor person in a Habeas Corpus proceeding against the Respondent herein, because he has failed to show he has a meritorious claim; and it is further
ORDERED, that the Index Number and Request for Judicial Intervention Number having already been issued by the Clerk without payment of the fees, Petitioner shall reimburse the Oneida County Clerk for said fees within 120 days of the date of this Order; and it is further
ORDERED, that if payment of these filing fees is not paid by Petitioner within the time specified by this Order, Petitioner's Habeas Corpus proceeding will be dismissed on said date without further Order of this Court.
Dated: April 26, 2018
Utica, New York
Hon. David A. Murad
Justice of the Supreme Court
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