| Matter of Justice v Fischer |
| 2010 NY Slip Op 05621 [74 AD3d 1648] |
| June 24, 2010 |
| Appellate Division, Third Department |
| In the Matter of John D. Justice, Appellant, v Brian Fischer, asCommissioner of Correctional Services, Respondent. |
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Spain, J.P. Appeal from a judgment of the Supreme Court (Sackett, J.), entered August 28,2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed thepetition.
The Office of Mental Health (hereinafter OMH) provides services in correctional facilities tomentally ill inmates who require psychiatric treatment (see Correction Law § 401).The treatment needs of a particular inmate are determined following an assessment performed byOMH personnel. Here, petitioner was designated as a "service level one"recipient—indicating that he suffered from "major/serious mental illness . . .with active symptoms requiring treatment." After petitioner's request to be reassigned to servicelevel two was denied by his treatment team, petitioner filed an inmate grievance challenging hislevel one status and arguing that OMH did not have an appeal procedure in place for inmateswho are dissatisfied with their service level designation. Petitioner also asserted that the inmategrievance process was unconstitutional because it does not apply to actions taken by "outsideagencies" even though such actions, like those administered by OMH employees here, areperformed in a correctional [*2]facility and may detrimentallyimpact inmates (see 7 NYCRR 701.3 [f]).[FN1]
Petitioner's grievance was denied and, after the Central Office Review Committee failed totimely rule on his administrative appeal, petitioner commenced this CPLR article 78 proceeding.While this proceeding was pending in Supreme Court, however, OMH reclassified petitioner toservice level three. Consequently, Supreme Court granted respondent's motion to dismiss theproceeding as moot. Petitioner appeals.
We agree with Supreme Court that petitioner's redesignation to a lower service levelclassification[FN2]has rendered moot the controversy underlying this judicial proceeding. Moreover, the AttorneyGeneral has advised this Court that OMH has instituted an administrative appeal policyapplicable to inmate complaints. Accordingly, as these issues do not fall within the exception tothe mootness doctrine, Supreme Court properly dismissed the petition (see Matter of McKethan v Leclaire, 47AD3d 1151 [2008]; Matter ofKarlin v Goord, 18 AD3d 906, 907 [2005], lv denied 5 NY3d 717 [2005]).Finally, as petitioner is no longer aggrieved, his constitutional challenge to the inmate grievanceprocess does not present a justiciable controversy (see Matter of Cliff v Goodman, 274AD2d 723 [2000]; Matter of Hall v State of N.Y. Dept. of Corrections, 88 AD2d 1102[1982]).
Lahtinen, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: Certain correctional facilitiesare unequipped to provide level one services. Thus, a level one inmate otherwise eligible to servehis or her sentence in a medium security facility might nonetheless be confined in a maximumsecurity facility.
Footnote 2: Petitioner's subsequentreclassification to service level two—because OMH no longer employs a service levelthree designation—does not change our holding. Petitioner initially requested that hisservice level be changed from one to two.