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ALNUTT v. NEW YORK

February 10, 1993

JEFFREY ALNUTT, Plaintiff,
v.
STATE OF NEW YORK, Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

DECISION AND ORDER

 Presently before this Court is defendant's motion to dismiss plaintiff's complaint, pursuant to Fed. R. Civ. P. 12(b)(1), (6). For the reasons discussed below, this Court has determined that it has no subject matter jurisdiction over this action. Therefore, defendant's motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) will be granted, and defendant's motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6) will be denied as moot.

 FACTS

 Plaintiff is presently incarcerated at the Groveland Correctional Facility in Sonyea, New York. Plaintiff alleges that while he was incarcerated at the Wende Correctional Facility in Alden, New York he commenced a proceeding under New York State Civil Practice Law and Rules (CPLR) Article 78, CPLR § 7800 et seq., challenging a prison disciplinary determination finding him guilty of drug use. Plaintiff cites 7 N.Y.C.R.R. § 251-5.1(a),(b), which require that where an inmate is confined pending a disciplinary hearing, the hearing must take place within seven days of confinement, unless an extension is granted by the Commissioner of the New York State Department of Correctional Services or his designee (Complaint, p. 1). Furthermore, the regulations require that the hearing be completed within fourteen days following the writing of the misbehavior report, unless an extension is granted by the Commissioner or his designee. Plaintiff challenged the disciplinary determination because he alleges that a hearing extension was granted only after his conviction, and after the period provided by the regulation (Complaint, exh. C). Plaintiff has attached the affidavit of Donald Selsky, a designee of the commissioner, sworn to on March 14, 1991 (Complaint, exh. B). This affidavit indicates that the misbehavior report was dated July 12, 1990, the extension was requested on July 23, 1990, and an extension was granted to begin the hearing by July 23, 1990 and to complete the hearing by July 25, 1990. Plaintiff also attached the "Corrected Affidavit" of Donald Selsky, sworn to May 30, 1991 (Complaint, exh. C). This document indicates that the request for the extension was made as early as July 18, 1990. Plaintiff alleges that the hearing procedures denied him due process because they were untimely. Although plaintiff does not explain how the hearing was untimely, his opposition papers indicate that he alleged that there were improprieties in the granting of the extension. Plaintiff initiated his Article 78 proceeding in New York State Supreme Court, Orleans County. The matter was transferred by the county judge to the Appellate Division, Fourth Department. Plaintiff alleges error in the fact that the Appellate Division permitted defendant to file the "Corrected Affidavit" after all briefs had been submitted (Complaint, exh. A2). Plaintiff alleges that the Appellate Division relied upon CPLR §§ 2001 and 2002 in allowing the "Corrected Affidavit" to be filed and considered. These statutes provide:

 
§ 2001. Mistakes, omissions, defects and irregularities.
 
At any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded.
 
§ 2002. Error in ruling of court.

 Plaintiff objected to the Appellate Division's receipt of the "Corrected Affidavit" during the course of the state proceedings. The Appellate Division rejected plaintiff's argument, and in a memorandum opinion held:

 
Determination unanimously confirmed and petition dismissed. Memorandum: There is no merit to petitioner's challenge to the prison disciplinary determination finding him guilty of drug use. The disciplinary hearing was conducted within the required time period, as duly extended by the Superintendent's designee. . . . Further, the determination is supported by substantial evidence [citations omitted].

 (Complaint, exh. A1). The New York Court of Appeals denied plaintiff's motion for leave to appeal to the Court of Appeals (Complaint, exh. A2).

 Plaintiff then brought the present action, alleging once again that the Appellate Division's receipt of the "Corrected Affidavit" was in error. Plaintiff filed this action under 28 U.S.C. §§ 1331, 2403, *fn1" requesting a declaratory judgment that CPLR §§ 2001 and 2002 are unconstitutional because they do not afford equal protection of the laws (Complaint, p. 2). He claims that, to the extent these statutes permit a party to amend filed documents so that they will prejudice opposing parties, the statutes are unconstitutional (Complaint, p. 2). However, the essence of plaintiff's claim is that the New York State courts interpreted and applied these statutes incorrectly.

 Defendant has moved to dismiss plaintiff's complaint on two grounds. First, defendant argues that the complaint should be dismissed for this Court's lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). Defendant argues that there is no actual controversy involved, and the plaintiff is merely seeking an advisory opinion on state practice and procedure. Second, defendant moves to dismiss the complaint for plaintiff's failure to state a claim, pursuant to Rule 12(b)(6). Defendant argues that the state courts have determined that the ...


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