Johnson v. Artus , 821 N.Y.S.2d 475 ( 2006 )

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Clinton County) to review a determination of respondent which found petitioner guilty of violating a prison disciplinary rule.

Petitioner, an inmate, went to emergency sick call complaining of nausea and difficulty breathing which he attributed to his inhalation of bleach in the laundry area. He had complained of the same symptoms a few days prior to this incident and was advised by the nurse that it was not an emergency situation. Petitioner was charged in a misbehavior report with interfering with an employee and lying. Following a tier II disciplinary hearing, he was found guilty of interfering with an employee, but not guilty of lying. The determination was affirmed on administrative appeal and this CPLR article 78 proceeding ensued.

Substantial evidence, consisting of the misbehavior report and petitioner’s own testimony, demonstrate that petitioner utilized the emergency sick call procedure for complaints that were not of an emergency nature even though he had recently been counseled against doing so (see Matter of Lamage v Selsky, 26 AD3d 699, 700 [2006]; Matter of Burr v Goord, 276 AD2d 947, 948 [2000], lv denied 96 NY2d 701 [2001], cert denied 532 US 935 [2001]). Inasmuch as this effectively precluded medical staff from attending to persons with true emergencies, the proof establishes that petitioner violated the rule prohibiting inmates from interfering with employees. Petitioner also challenges the correctional facility’s emergency sick leave policy and claims to have filed a grievance concerning the same. He concedes, however, that he has not yet received a response to his administrative appeal. Consequently, we decline to address his claim as he has not fully exhausted his administrative remedies (see e.g. Matter of Allen v Goord, 4 AD3d 635, 636 [2004]; compare Matter of Lunney v Goord, 290 AD2d 687, 688 [2002]).

Cardona, P.J., Peters, Spain, Rose and Kane, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.