MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Roger D. McDonough, J.), entered July 14, 2021 in Albany County, which dismissed petitioners 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, petitioners friend attempted to send him an email – together with six attached photographs – through petitioners 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 petitioners friend should have received a notice to that effect directly from JPay. Upon petitioners 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 CORCs determination. Following service of respondents’ answer and petitioners reply, Supreme Court dismissed petitioners 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 argue that, notwithstanding the notification provisions set forth in the earlier version of the directive, it consistently has been JPays policy to only notify the sender when an incoming message is rejected and, given that “petitioner failed to offer any evidence showing that the sender ․ did not receive notification of the rejection[,] ․ the denial of petitioners grievance was proper.” The flaw in respondents’ argument is two-fold. First, it is facility personnel – not JPay representatives – who screen incoming content and decide what constitutes an acceptable message or attachment. More to the point, regardless of what JPays practices may have been, the plain language of the directive in effect at the time in question required facility staff to “enter the rationale for the rejection in the kiosk provider software,” thereby enabling incarcerated individuals such as petitioner to “be notified of the rejection when they log into the kiosk” (Dept of Corr & Community Supervision Directive No. 4425 former § [K][3] [eff Feb. 20, 2019]).
Although Directive No. 4425 subsequently was amended to provide that petitioner and other incarcerated individuals would only be notified when outbound secure messages were rejected, petitioner should have been provided with an explanation for the rejection of the photographs in question at the time that such request was made (see Matter of Bush v. Fischer, 93 AD3d 982, 983 [3d Dept 2012]). Petitioners remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.
ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed that part of the petition challenging the denial of petitioners grievance insofar as it requested an explanation for the rejection of certain photographs; petition granted to that extent and matter remitted to respondents for further proceedings not inconsistent with this Courts decision; and, as so modified, affirmed.
FOOTNOTES
1
. A JPay tablet is a device that allows incarcerated individuals to, among other things, send and receive email and related attachments.
2
. Petitioner variously claimed that he received only two or three of the photographs at issue.
Garry, P.J., Egan Jr., Ceresia, Fisher and McShan, JJ., concur.