Opinion
390-11
07-01-2011
In the Matter of the Application of Darren Rogers, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Albert Prack, DIRECTOR INMATE DISCIPLINE/SPECIAL HOUSING, DEPARTMENT OF CORRECTIONAL SERVICES, Respondent.
Darren Rogers Petitioner Pro Se Greene Correctional Facility Hon. Eric T. Schneiderman Attorney General of New York State Attorney for Respondent (Cathy Y. Sheehan, Assistant Attorney General, of Counsel) Department of Law
Darren Rogers
Petitioner Pro Se
Greene Correctional Facility
Hon. Eric T. Schneiderman
Attorney General of New York State
Attorney for Respondent
(Cathy Y. Sheehan, Assistant Attorney General,
of Counsel)
Department of Law
, J.
Petitioner, a state inmate, challenges a disciplinary determination that he was guilty of a series of infractions of the New York State Department of Correctional Services' ("DOCS") Standards of Inmate Behavior based on his using opiates while he was participating in a drug treatment program as well as an administrative determination removing petitioner from the temporary release program on the grounds that petitioner was improperly enrolled because he did not and does not meet the requirements for the program.
The scope of judicial review of such administrative determinations is limited to analyzing whether (1) respondent agency took the action without or in excess of its jurisdiction or (2) respondent's determination was (a) made in violation of lawful procedure or of positive statutory or constitutional requirements, (b) affected by an error of law, (c) an abuse of discretion, or (d) arbitrary and capricious in that the agency took action without a sound basis in reason or without regard for the facts. Barring such wrongs, the Court must confirm the determination (Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). The Court is not authorized simply to substitute its judgment for that of the agency responsible for making the determination (Flacke v. Onondaga Landfill Sys., 69 NY2d 355, 363 [1987]; Awl Industries, Inc. v. Triborough Bridge and Tunnel Authority, 41 AD3d 141, 142 [1st Dept., 2007]).
Petitioner has failed to meet any of the requirements for a successful challenge to either the disciplinary determination or his subsequent removal from the temporary release program. The Court begins its analysis of petitioner's challenge to the disciplinary determination that petitioner was using opiates while participating in a drug treatment program by noting that petitioner's five conclusory allegations are insufficient by themselves to state a cause of action (Matter of Federation of Mental Health Centers, Inc. v. De Buono, 275 AD2d 557, 561 [3rd Dept., 2000]; Matter of Kirk v. Bahou, 73 AD2d 770, 771 [3rd Dept., 1979]; Matter of Gagnon v. Board of Educ. of Manhasset Union Free School Dist., 119 AD2d 674, 675 [2nd Dept., 1986]; Matter of Reisman v. Codd, 54 AD2d 878 [1st Dept., 1976]). To meet his burden, petitioner must support his conclusions by providing specific facts and analysis supporting them. As the petition and supporting papers lack sufficient factual allegations to support petitioner's conclusions therein, the Court finds that petitioner has failed to state a cause of action and concludes that the petition must be denied (Matter of Federation of Mental Health Centers, Inc. v. De Buono, 275 AD2d 557, 561 [3rd Dept., 2000]).
The hearing transcript of the disciplinary hearing reflects that petitioner has no legitimate complaints and that, if he did, he waived any objections by failing to raise them at the time of the disciplinary hearing when the hearing officer could have addressed them. For example, in stark contrast to petitioner's conclusory statement that he was not afforded "Advance written notice of the charges at least twenty-four (24) hours before the scheduled proceeding," the hearing transcript reveals that petitioner acknowledged receiving his copy of the formal charge more than three days before the hearing.
The hearing transcript also reveals that the witness that petitioner belatedly asked for was only being called for the purpose of corroborating petitioner's irrelevant and uncontested testimony that he was not present when his urine sample was tested. That testimony is irrelevant because, as the hearing officer informed petitioner, inmates are never present during the testing. The transcript also reveals that when petitioner was informed that the inmate witness did not want to testify or get involved, petitioner did not object to that news or the form that was handed to him notifying him of the witness' refusal. Petitioner also failed to point to any rule that was violated by testing his urine sample outside of his presence.
The hearing transcript reveals that petitioner was given the opportunity to marshal the evidence and prepare a defense. The hearing transcript reveals that petitioner did not object to the hearing officer's conduct. Petitioner has failed to meet his burden of pointing out in the record that the hearing officer was guilty of a conflict of interest, prejudgment, or other record of evidence of real bias (Matter of Couch v. Goord, 255 AD2d 720, 722 [3rd Dept., 1998]), that there was actual bias and substantial prejudice (Matter of Steward v. Selsky, 266 AD2d 605, 606 [3rd Dept., 1999]), and that the outcome of the hearing flowed from the alleged bias (Matter of Martinez v. Scully, 194 AD2d 679, 680 [2nd Dept., 1993]). Finally, the hearing transcript reveals that petitioner was offered an employee assistant, assistance was explained to him by Officer Haqq and petitioner did not object to the employee assistant's level of assistance. Petitioner has not shown that the assistance he received was so deficient as to prevent, or in any way impair, his ability to prepare and present a defense to the charges filed against him at the hearing (Matter of Scott v. Fischer, 57 AD3d 1035, 1036 [3rd Dept., 2008]; Matter of Amaker v. Selsky, 43 AD3d 547, 547-548 [3rd Dept., 2007]).
Petitioner could have but did not raise objections to any of the alleged violations of his due process rights. Petitioner's failure to make his objections at a time when the alleged errors could have been responded to or corrected by respondent is a failure to preserve the issue, which precludes petitioner from raising the issue before the Court in this challenge (Matter of Bettis v. Dufrain, 256 AD2d 872, 873 [3rd Dept., 1998]; Matter of Nelson v. Selsky, 239 AD2d 795, 796 [3rd Dept., 1997]; Hubert v. Coombe, 233 AD2d 644 [3rd Dept., 1996]; Gonzales v. Coughlin, 180 AD2d 974, 976 [3rd Dept., 1992]; Matter of Finn v. Leonardo, 160 AD2d 1074, 1076 [3rd Dept., 1990]).
Turning to petitioner's challenge to his removal from the temporary release program, the Court notes that petitioner was removed after he was found guilty of the disciplinary violations, but petitioner was not removed from temporary release because of those violations. Petitioner was removed because it was discovered that he did not qualify to participate.
Temporary release is a privilege rather than a right (Matter of Herber v. Joy, 61 AD3d 1142 [3rd Dept., 2009]; Matter of Brown v. Rivera, 299 AD2d 617, 618 [3rd Dept., 2002]; Matter of Szucs v. Recore, 209 AD2d 803 [3rd Dept., 1994]; Matter of Walker v. LeFevre, 193 AD2d 982, 983; Correction Law § 855[9]). Therefore, judicial review is limited to determining whether the challenged determination violates a positive statutory requirement, denies a constitutional right, or is affected by irrationality bordering on impropriety (Matter of Herber v. Joy, 61 AD3d 1142 [3rd Dept., 2009]; Peck v. Maczek, 38 AD3d 948, 948 [3rd Dept., 2007]; Matter of Sanchez v. Recore, 257 AD2d 835 [3rd Dept., 1999]; Matter of Williams v. Recore, 251 AD2d 833 [3rd Dept., 1998]; Matter of Bruno v. Recore, 227 AD2d 709, 709-710 [3rd Dept., 1996]; Matter of Walker v. LeFevre, 193 AD2d 982, 983 [3rd Dept., 1993]).
As petitioner does not challenge respondent's determination that petitioner was never eligible to participate in the temporary release program, the Court finds that petitioner was ineligible to participate in the program. Petitioner has failed to point to any statutory or constitutional right to continue in the program that respondent violated by removing petitioner from the temporary release program once petitioner's ineligibility was discovered. Petitioner was not entitled to participate in a temporary release program based on his having previously participated in the program (Matter of Brown v. Rivera, 299 AD2d 617, 618 [3rd Dept., 2002]). Inasmuch as participation in a temporary release program is a privilege and respondent's determination to remove petitioner neither violated a statutory requirement or constitutional right nor was it affected by irrationality bordering on impropriety, the Court finds no reason to disturb it.
Accordingly, the Court finds that petitioner has failed to meet his burden of proof in this proceeding.
Therefore, it is hereby
ORDERED, that the petition is hereby dismissed and the relief requested in this proceeding is in all respects denied.
This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for the respondent. The below referenced original papers are being mailed to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry or notice of entry the Albany County Clerk.
SO ORDERED.
ENTER.
Gerald W. Connolly
Acting Supreme Court Justice
Papers Considered:
Order to Show Cause dated January 27, 2011;
Petition dated December 29, 2010, with exhibits annexed; Memorandum of Law dated December 29, 2010;
Answer dated May 4, 2011; Affirmation of Cathy Y. Sheehan dated May 4, 2011, with exhibits annexed;
Affidavit of Darren Rogers dated May 9, 2011.