Opinion
2015-09-17
In the Matter of John MUGGELBERG, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
John Muggelberg, Sonyea, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
John Muggelberg, Sonyea, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, EGAN JR. and ROSE, JJ.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered December 2, 2014 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of the Central Office Review Committee denying petitioner's grievance.
Petitioner is an inmate at Livingston Correctional Facility, which is located in what the Department of Corrections and Community Supervision (hereinafter DOCCS) designates as the Wende Hub. Relying on DOCCS Directive No. 4017(IV)(c), petitioner sought a transfer to another correctional facility within that hub to accommodate visitation by his father, who has limited mobility. After his offender rehabilitation coordinator refused to submit his intra-hub transfer request finding that it was impermissible, he filed a grievance. The Central Office Review Committee ultimately denied the grievance, finding that neither the directive nor department policy permits inmate requests for intra-hub facility transfers, and that the directive permits such transfers only “for departmental or programmatic needs” but not for “inmate preference.” Petitioner thereafter commenced this CPLR article 78 proceeding challenging the denial of his grievance, seeking, among other relief, an order compelling respondent to process his request to be transferred to another facility in the Wende Hub. Supreme Court dismissed the petition, prompting this appeal.
We affirm. Respondent has broad discretion in deciding whether to transfer inmates from one correctional facility to another, and an inmate has no right to be housed at any particular facility ( seeCorrection Law § 23; Matter of Davis v. Fischer, 81 A.D.3d 1011, 1012, 916 N.Y.S.2d 850 [2011], lv. dismissed17 N.Y.3d 921, 934 N.Y.S.2d 370, 958 N.E.2d 548 [2011]; Matter of Lugo v. Goord, 49 A.D.3d 1114, 1115, 853 N.Y.S.2d 747 [2008], lv. denied 10 N.Y.3d 714, 861 N.Y.S.2d 274, 891 N.E.2d 309 [2008] ). Mandamus to compel does not lie to compel the performance of a discretionary decision ( see Matter of Borrell v. New York State Div. of Parole, 123 A.D.3d 1206, 1206–1207, 998 N.Y.S.2d 513 [2014], lv. denied25 N.Y.3d 901, 2015 WL 1422311 [2015]; Matter of Swinton v. Travis, 16 A.D.3d 851, 853, 792 N.Y.S.2d 207 [2005] ). Moreover, the interpretation of the directive as not permitting intra-hub transfer requests by inmates is rational and, therefore, the determination that his request for such a transfer was not permissible was not arbitrary and capricious ( see Matter of Davis v. Fischer, 76 A.D.3d 1152, 1152, 907 N.Y.S.2d 718 [2010]; Matter of Binkley v. New York State Dept. of Correctional Servs., 64 A.D.3d 1063, 1063–1064, 881 N.Y.S.2d 922 [2009], lv. denied13 N.Y.3d 886, 893 N.Y.S.2d 832, 921 N.E.2d 599 [2009]; Matter of Fullwood v. Lamy, 28 A.D.3d 1016, 1016, 814 N.Y.S.2d 328 [2006] ).
With regard to his claim that DOCCS' policy violates his right to equal protection, petitioner has not shown that he was treated differently than “similarly situated” inmates or that any disparate treatment was based upon “impermissible considerations” (Matter of State of New York v. Myron P., 20 N.Y.3d 206, 211, 958 N.Y.S.2d 71, 981 N.E.2d 772 [2012] [internal quotation marks and citation omitted] ). Petitioner's remaining claims are either unpreserved or lack merit.
ORDERED that the judgment is affirmed, without costs.