| Matter of Gillard v White |
| 2010 NY Slip Op 09420 [79 AD3d 1466] |
| December 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Gary Gillard, Petitioner, v Brandi White, asInmate Grievance Supervisor, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court,entered in Washington County) to review (1) two determinations of respondent Superintendent ofGreat Meadow Correction Facility which found petitioner guilty of violating certain prison disciplinaryrules, and (2) a determination of respondent inmate grievance supervisor which denied petitioner'sgrievance.
Petitioner was served with a misbehavior report charging him with refusing a direct order after hewas ordered by a correction officer to proceed to the sergeant's office on December 7, 2008 and herefused to do so. He was found guilty of that charge following a tier II disciplinary hearing which herefused to attend and, thereafter, received no response to his administrative appeal. Subsequently,petitioner received another misbehavior report for a similar incident on December 9, 2008, and wasagain found guilty after a tier II disciplinary hearing which he did not attend. Again receiving noresponse to his administrative appeal, petitioner filed a grievance protesting the lack of response andseeking reversal of the disciplinary determinations and expungement of such determinations; hisgrievance was denied on the basis that the inmate grievance review committee "does not have theauthority to reverse misbehavior reports." He then commenced this CPLR article 78 proceeding tochallenge the disciplinary determinations and the determination denying his grievance.[*2]
We confirm. Initially, we find that the detailed misbehaviorreports, standing alone, are sufficient to provide substantial evidence to support both determinationsfinding petitioner guilty of refusing a direct order (see Matter of Rivera v Pilon, 59 AD3d 761, 762 [2009]; Matter ofIgartua v Rivera, 58 AD3d 1046 [2009]). Petitioner's contention that he received the misbehaviorreports in retaliation for grievances he filed is unpreserved for this Court's review by his failure to attendthe disciplinary hearings and present such defense to the Hearing Officers prior to the conclusion of theproceedings (see Matter of Reese vBezio, 75 AD3d 1029 [2010]; Matter of Lawson v Commissioner of Correctional Servs., 73 AD3d1296 [2010]).
Similarly, we find that the denial of petitioner's grievance had a rational basis and was not affectedby an error of law (see Matter of Bermudez vFischer, 71 AD3d 1361, 1362 [2010], lv denied 15 NY3d 702 [2010]; Matter of Green v Bradt, 69 AD3d1269, 1270 [2010], lv denied 14 NY3d 710 [2010]). Grievance procedures are not theproper vehicle to challenge individual prison disciplinary determinations (see 7 NYCRR 701.3[e] [2]; Matter of Adorno v Jones, 113 AD2d 973, 974 [1985]). To the extent petitioner nowargues that his due process rights were violated by a policy of respondents to deliberately fail torespond to appeals within 15 days pursuant to 7 NYCRR 253.8 (see 7 NYCRR 701.3 [e][3]), inasmuch as petitioner did not sufficiently articulate such argument in his grievance, respondents'denial of the grievance was proper for the reasons stated therein. Petitioner's remaining contentions, tothe extent not specifically addressed, have been examined and found to be lacking in merit.
Cardona, P.J., Peters, Rose, Stein and Garry, JJ., concur. Adjudged that the determinations areconfirmed, without costs, and petition dismissed.