McMillian v. Krygier

• Decision Date: 05 August 2021
• Docket Number: 531720
• Citation: 153 N.Y.S.3d 198,197 A.D.3d 800
• Parties: In the Matter of Frederick MCMILLIAN, Appellant, v. Joyce KRYGIER, as Grievance Supervisor, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

197 A.D.3d 800

153 N.Y.S.3d 198

In the Matter of Frederick MCMILLIAN, Appellant,

v.Joyce KRYGIER, as Grievance Supervisor, et al., Respondents.

531720

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

Calendar Date: June 17, 2021

Decided and Entered: August 5, 2021

Frederick McMillian, Alden, appellant pro se.

Letitia James, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Clark, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Garry, P.J.

(1) Appeal from a judgment of the Supreme Court (McDonough, J.), entered April 23, 2020 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Superintendent of Wende Correctional Facility denying his grievance, and (2) motion to strike prejudicial matter from respondents' brief.

Petitioner, an incarcerated person, was assigned to work in the prison mess hall. In January 2018, the Department of Corrections and Community Supervision (hereinafter DOCCS) reduced his pay rate due to his refusal to participate in certain programming. After attempting to informally resolve his dispute, he filed a grievance challenging the pay reduction (see 7 NYCRR 701.3 [a]; see also 7 NYCRR 701.1 [a], [b]). The matter came before the Inmate Grievance Review Committee, which deadlocked on the issue. The grievance was referred to the facility Superintendent, who denied relief. Petitioner appealed the denial to the Central Office Review Committee (hereinafter CORC). Eight months later, not having received a decision from CORC, petitioner commenced this CPLR article 78 proceeding challenging the Superintendent's denial. Following joinder of issue, Supreme Court dismissed the petition on the merits. This appeal by petitioner ensued.¹

Initially, we reject respondents' argument that the petition should have been dismissed due to petitioner's failure to exhaust administrative remedies.² Exhaustion is not required where, among other things, "an administrative challenge would be futile or where the issue to be determined is purely a question of law" ( Matter of Police Benevolent Assn. of N.Y. State, Inc. v. State of New York, 150 A.D.3d 1375, 1376, 55 N.Y.S.3d 457 [2017] [internal quotation marks and citation omitted]; see Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ; Matter of Cady v. Clark, 176 A.D.2d 1055, 1056, 575 N.Y.S.2d 201 [1991] ). Here, we find that both of these stated exceptions apply. Petitioner admits that, on January 11, 2018, he refused to participate in a recommended alcohol and substance abuse treatment program. It is undisputed that, on January 15, 2018, DOCCS reduced his hourly pay rate from $0.25 to $0.16 based on that refusal. Petitioner further admits that, in May 2018, he refused to participate in aggression replacement training when it was recommended. DOCCS asserts that this later refusal to participate in recommended programming would also warrant the reduction in petitioner's pay rate. With these facts undisputed, petitioner has presented pure questions of law regarding which of DOCCS's directives or manuals apply to this situation, and whether such written policies exceed DOCCS's statutory authorization.

Moreover, pursuant to a DOCCS's regulation, "CORC shall review each appeal, render a decision on the grievance, and transmit its decision to the facility ... and any direct parties within 30 calendar days from the time the appeal was received" ( 7 NYCRR 701.5 [d][3][ii]). Although use of the word "shall" generally denotes a mandatory requirement (see e.g. Matter of Haynie v. Mahoney, 48 N.Y.2d 718, 719, 422 N.Y.S.2d 370, 397 N.E.2d 1174 [1979] ; Matter of Kardos v. Ryan, 28 A.D.3d 1050, 1051, 814 N.Y.S.2d 336 [2006] ), when addressing time limits imposed on agencies and officials, courts have held that, " ‘unless the language used [in a statute or regulation] shows that the designation of time was intended as a limitation on the power of the body or officer, the provision is directory rather than mandatory’ " ( Matter of Meyers v. Maul, 249 A.D.2d 796, 797, 671 N.Y.S.2d 848 [1998], lv denied 92 N.Y.2d 807, 678 N.Y.S.2d 593, 700 N.E.2d 1229 [1998], quoting Matter of Grossman v. Rankin, 43 N.Y.2d 493, 501, 402 N.Y.S.2d 373, 373 N.E.2d 267 [1977] [noting that a failure to timely comply does not divest the agency of jurisdiction]). Thus, interpreting this regulation, this Court has previously held that the language is merely directory, requiring a grievant seeking to avoid exhausting administrative remedies to demonstrate that he or she was substantially prejudiced by CORC's delay in issuing a decision (see Matter of Hendricks v. Annucci, 179 A.D.3d 1232, 1233, 116 N.Y.S.3d 443 [2020], lv denied 35 N.Y.3d 913, 128 N.Y.S.3d 475, 152 N.E.3d 167 [2020] ; Matter of Golston v. Director of Div. of Nutritional Servs., 168 A.D.3d 1299, 1300, 93 N.Y.S.3d 448 [2019] ).

A regulation addressing the three-step grievance process – (1) Inmate Grievance Review Committee, (2) facility superintendent, then (3) CORC – provides that, "[a]bsent [an] extension, matters not decided within the time limits may be appealed to the next step" ( 7 NYCRR 701.6 [g][2]). There have been differing interpretations of this language in the relevant decisions rendered in the federal courts. Some have noted that "it is not clear whether the language in [that regulation] applies to ... CORC, and if so, what the ‘next step’ is. The regulations do not describe a mechanism for appealing or advancing a grievance when a grievant does not receive a response from CORC" ( Sherwood v. Senecal, 2019 WL 4564881, *3, 2019 U.S. Dist LEXIS 160295 [N.D.N.Y., Sept. 20, 2019, No. 9:17–CV–00899 (BKS/TWD)] [internal quotation marks and citations omitted]; compare Matter of 101CO, LLC v. New York State Dept. of Envtl. Conservation, 169 A.D.3d 1307, 1311–1313, 95 N.Y.S.3d 404 [2019] [noting that an agency's failure to respond to a Freedom of Information Law administrative appeal within the required time frame constitutes a constructive denial], lv dismissed 34 N.Y.3d 1010, 115 N.Y.S.3d 206, 138 N.E.3d 1089 [2019] ; Matter of Jackson v. Albany County Dist. Attorney's Off., 176 A.D.3d 1420, 1421, 113 N.Y.S.3d 313 [2019] [same], citing Public Officers Law § 89[4][a] ).³ One court compared prior cases and described a "split in [federal] district court cases within the Second Circuit regarding whether a failure by CORC to timely decide an appeal ... renders a prisoner's administrative remedies unavailable," such that exhaustion is not required ( Mayandeunas v. Bigelow , 2019 WL 3955484, *3, 2019 U.S. Dist LEXIS 142452 [N.D.N.Y., Aug. 22, 2019, No. 9:18–CV–1161 (GTS/TWD)] ). That court concluded that a reasonable limit must be placed on the time that CORC takes to issue a decision, after which a prisoner can deem the administrative appeal to have been constructively denied ( Mayandeunas v. Bigelow, 2019 WL 3955484 at *4, 2019 U.S. Dist LEXIS 142452 ).⁴

Under that analysis, delays by CORC ranging from 80 to 134 days beyond the regulation's 30–day limit have been deemed too long for a CORC determination to be considered an available administrative remedy; "[a]t some point CORC must face the consequences of its delays" ( Mayandeunas v. Bigelow, 2019 WL 3955484 at *5, 2019 U.S. Dist LEXIS 142452 at *13 ; compare Matter of Hendricks v. Annucci, 179 A.D.3d at 1233, 116 N.Y.S.3d 443 [finding that exhaustion rule applied where inmate commenced court proceeding less than two months after 30–day period expired]). Here, petitioner filed his administrative appeal with CORC on December 12, 2018 and commenced this proceeding on August 19, 2019. He waited more than eight months without having received a decision – which is seven months after CORC's 30–day limit had expired – before he commenced this proceeding.⁵ To the extent that the regulations are unclear regarding whether CORC's failure to decide an appeal within 30 days constitutes a constructive denial, a grievant is placed in a catch–22 situation – if he or she files a CPLR article 78 proceeding before receiving a decision from CORC, DOCCS may seek dismissal based on the defense of failure to exhaust administrative remedies, but, if the grievant does not commence a court proceeding within four months after the 30–day decision period, he or she risks the possibility of DOCCS seeking dismissal based on a statute of limitations defense (cf. Matter of Jewish Press, Inc. v. New York City Dept. of Hous. Preserv. & Dev., 193 AD3d 483, 483, 147 N.Y.S.3d 8 [2021] [dismissing proceeding as untimely because not commenced within four months of agency's constructive denial of administrative appeal]). This untenable position, which arises from the confluence of CORC's failure to comply with the regulation's time frame for deciding administrative appeals and the lack of clarity in a different DOCCS regulation, creates substantial prejudice to a grievant such as petitioner (compare Matter of Walker v. Uhler, 185 A.D.3d 1363, 1364, 129 N.Y.S.3d 197 [2020] ). Under the circumstances, we find that exhaustion should be excused based on the futility exception.⁶

Turning to the merits, petitioner first contends that DOCCS incorrectly applied Directive No. 4802, entitled Inmate Payroll Standards, to reduce his pay rate, despite that document explicitly stating that "[i]nmates employed in the facility food service program will have their wages and working conditions governed by the ‘Food Service Operations Manual’ " (Dept of Corr & Community Supervision Directive No. 4802 § I[B]). Other directives applicable to all inmates provide that inmates are expected to accept program assignments and those who refuse such assignments, including educational or therapeutic programs, may be subject to administrative action, including being limited to the lowest pay rate (see Dept of Corr & Community Supervision...