Kibbe v. Scully

In a proceeding pursuant to CPLR article 78 to, inter alia, compel Charles J. Scully, Superintendent of Green Haven Correctional Facility, to recompute petitioner’s prison wages and to apply a higher wage scale, retroactive to his arrival at Green Haven Correctional Facility, the appeal is from a judgment of the Supreme Court, Dutchess County (Rosenblatt, J.), dated July 13,1982, which, after a hearing, dismissed the proceeding. Judgment affirmed, without costs or disbursements. Although petitioner has apparently failed to exhaust his administrative remedies by-appealing the determination of his inmate pay rate, thus rendering this proceeding premature (Matter of Patterson v Smith, 53 NY2d 98), it is manifest upon this record that such administrative proceedings would be futile. We note that the guidelines of the Department of Correctional Services provide: “Inmates transferred from one facility to another for reasons other than ‘distribution of population’ will be placed in an assignment position at a grade level determined appropriate by the Program Committee of the receiving facility. Inmates transferred specifically for ‘distribution of population’ reasons (transfer orders will be so marked) will be continued at a base daily pay scale equal to what he was receiving prior to his move. Inmates transferred for these reasons must maintain a level of program participation equal to the pay in his/her new assignment. Inmates failing to do so should be reviewed and reduced in pay.” Having been transferred from Auburn Correctional Facility to Green Haven Correctional Facility for reasons other than distribution of population, petitioner is not entitled to the same rate of pay under Department of Correctional Services payroll guidelines. Mollen, P. J., Damiani, Mangano and Gulotta, JJ., concur.