State of New York Supreme Court, Appellate Division Third Judicial Department
January 26, 2012
IN THE MATTER OF SHAWN GREEN, PETITIONER,
MARK L. BRADT, AS SUPERINTENDENT OF ELMIRA CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Rose, J.
MEMORANDUM AND JUDGMENT
Calendar Date: November 22, 2011
Before: Mercure, Acting P.J., Peters, Rose, Lahtinen and Garry, JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Chemung County) to review (1) a determination of the Central Office Review Committee denying petitioner's grievance, and (2) a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.
In December 2009, petitioner, a prison inmate, filed a grievance seeking to, among other things, modify restrictions on the items of clothing that inmates are permitted to wear while being transported to other facilities during cold weather months. Specifically, while the relevant directives permit the wearing of a winter coat where appropriate, petitioner sought revision of the policy to permit inmates to bring and wear "a sweater, winter socks, hat as well as [thermal underwear]." Ultimately, in April 2010, the Central Office Review Committee (hereinafter CORC) denied petitioner's grievance, ruling that petitioner failed to present "any compelling reasons to revise departmental policy regarding clothing."
In a misbehavior report dated April 8, 2010, petitioner was charged with failing to dispose of a plastic spoon upon departure from the mess hall, refusing a direct order and creating a disturbance. These charges stemmed from an incident whereby a correction officer observed that petitioner failed to drop his spoon into the bucket set aside for that purpose after his meal, causing him to order petitioner to comply. According to the misbehavior report, petitioner "became vocally loud [and] argument[ative] and proceeded to exit the mess hall into [a] corridor." Petitioner was then frisked and, when no contraband was found, he was escorted back to his cell. Following a tier II disciplinary hearing, petitioner was found guilty of creating a disturbance. The determination of guilt was affirmed on administrative appeal.
Petitioner subsequently commenced this CPLR article 78 proceeding challenging CORC's determination denying the grievance, as well as respondent's determination finding him guilty of creating a disturbance. Thereafter, petitioner served upon the Attorney General an "amended/supplemental verified petition," which used the same index number as the above proceeding and sought to add entirely new causes of action challenging the results of two unrelated disciplinary hearings held after the events described in the original verified petition. Supreme Court denied that request, and transferred the proceeding to this Court pursuant to CPLR 7804 (g).
Initially, we are unpersuaded by petitioner's contention that the denial of his grievance must be overturned. It is beyond dispute that, "[t]o prevail, petitioner must demonstrate that [CORC's] determination was arbitrary and capricious or without a rational basis" (Matter of Simmons v New York State Dept. of Correctional Servs., 82 AD3d 1382, 1383  [internal quotation marks and citation omitted]). Here, the grievance determination, as well as our in camera review of the relevant directives, confirms that the denial of petitioner's grievance was rationally based upon legitimate security and identification concerns and limitations on storage. Winter coats are allowed when appropriate, and respondent further noted that inmates may wear additional clothing during transport based upon documented medical needs. Under these circumstances, we find no basis to disturb CORC's denial of petitioner's grievance.
Turning to the determination finding petitioner guilty of creating a disturbance, the misbehavior report standing alone was sufficient to provide substantial evidence to support that finding (see People ex rel. Vega v Smith, 66 NY2d 130, 140 ; Matter of Rizzuto v Murphy, 3 AD3d 801, 802 ; Matter of Daum v Goord, 274 AD2d 715, 716 ). While petitioner claims that the record does not support the Hearing Officer's finding that the incident occurred in front of other inmates, we note that the misbehavior report specifically charges that a loud exchange took place in the mess hall. As for petitioner's assertion that he was, among other things, improperly restricted from calling a witness, the record discloses that petitioner responded in the negative at the end of the hearing when he was asked whether he chose to call any witnesses or had any procedural objections. Accordingly, any issues in that regard were waived (see Matter of Cornwall v Fischer, 74 AD3d 1507, 1509 ).
The remaining issues raised by petitioner have been examined and found to be lacking in merit, including his claim that Supreme Court erred in denying his request to serve an "amended/supplemental verified petition" seeking to add challenges to unrelated disciplinary proceedings. We find no abuse of the court's discretion in that regard, inasmuch as "the new causes of action asserted impermissibly expand[ed] the scope of the original proceeding" (Matter of Miller v Goord, 1 AD3d 647, 648 ).
Mercure, Acting P.J., Peters, Lahtinen and Garry, JJ., concur.
ADJUDGED that the determinations are confirmed, without costs, and etition dismissed.
Robert D. Mayberger Clerk of the Court
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