Morrison v. Annucci

210 A.D.3d 1156

177 N.Y.S.3d 782

In the Matter of Duone MORRISON, Appellant,

v.DOCCS Acting Commissioner Anthony J. ANNUCCI et al., Respondents.

533801

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 7, 2022

Decided and Entered: November 3, 2022

Duone Morrison, Attica, appellant pro se.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Ceresia, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), entered July 14, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

While petitioner was incarcerated at Sullivan Correctional Facility in June 2020, petitioner's friend attempted to send him an email – together with six attached photographs – through petitioner's JPay tablet.¹ When the friend subsequently inquired about the email, petitioner discovered that he had not received all of the photographs.² Petitioner thereafter filed a grievance seeking an explanation as to why access to certain photographs was denied, and the grievance was forwarded to respondent Superintendent of Sullivan Correctional Facility for review. The Superintendent denied the grievance, noting that any "correspondence that is deemed inappropriate is rejected with a reason" and that petitioner's friend should have received a notice to that effect directly from JPay. Upon petitioner's appeal to the Central Office Review Committee (hereinafter CORC), that determination was upheld. In so doing, CORC noted that, in the event that any incoming email or attached content was rejected, a rejection notification would be sent to the "community member," i.e., the sender. As a result, CORC advised, any defect in the notification process should be addressed with JPay.

Petitioner then commenced this CPLR article 78 proceeding to challenge CORC's determination. Following service of respondents’ answer and petitioner's reply, Supreme Court dismissed petitioner's application finding, among other things, that Department of Corrections and Community Supervision Directive No. 4425 (Inmate Tablet Program) did not require that petitioner be notified when incoming messages or attachments were rejected. This appeal ensued.

The current version of Directive No. 4425 indeed provides that incarcerated individuals such as petitioner "will be notified of the rejection of outbound secure messages when they log [into] the kiosk," whereas "[c]ivilian customers will be notified in writing whenever an inbound or outbound message between them and an [incarcerated individual] is rejected (Dept of Corr & Community Supervision Directive No. 4425 § [IV][K][3] [eff Oct. 15, 2020] [emphasis added]). Hence, under this version of the directive, petitioner would not be entitled to be notified of the fact that certain of the photographs sent to him were rejected. However, under the version of the directive in effect in June 2020 – when the photographs in question were rejected – the directive provided that "[s]ecure messages and associated attachments that violate policy will be rejected by ... authorized staff ... and will not be delivered. Staff will enter the rationale for the rejection in the kiosk provider software. [Incarcerated individuals] will be notified of the rejection when they log into the kiosk " (Dept of Corr & Community Supervision Directive No. 4425 former § [IV][K][3] [eff Feb. 20, 2019] [emphasis added]).

Petitioner alleges – and respondents do not dispute – that he was not notified by facility personnel that the pictures in question had been rejected. Rather, respondents...