The petitioner, an inmate at Bedford Hills Correctional Facility ("BHCF"), has commenced the instant CPLR Article 78 proceeding in the nature of mandamus to review to require the respondents to provide the BHCF law library with two functioning computers. She also requests a determination that the BHCF be prohibited from charging inmates for photocopies of legal papers.In support of her application, the petitioner argues that while BHCF has issued over 100 floppy discs to the inmate population, there is only one functioning computer in the law library. She indicates that when the other computer broke down, it was replaced with a typewriter. She requests a judgment granting immediate injunctive relief to restore the BHCF law library to what she refers to as the "status quo" (which apparently would be the replacement of the non-functioning computer). As a part of the relief requested ^[FN1], the petitioner requests that the Court enjoin the respondents from taking "further" retaliatory action against her. The petitioner maintains that the charge of ten cents per page for photocopies of legal papers is improper by reason that it violates an inmate's court-ordered status as a poor person. Respondent, in opposition to the petition, has made a motion to dismiss. Petitioner, in turn, has made a cross-motion to amend her "complaint" and for other relief.

Turning first to the issue concerning the alleged lack of adequate computers in the BHCF law library, respondents argue that the petitioner failed to exhaust her administrative remedies with respect to this issue. "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law" (Watergate v Buffalo Sewer, 46 NY2d 52, 57 [1978], citing, Young Men's Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 375). "This doctrine furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency (see 1 NY Jur, Administrative Law, §5 pp 303-304), preventing premature judicial interference with the [*2]administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgement'" (Watergate v Buffalo Sewer, supra, citing, Matter of Fisher [Levine], 36 NY2d 146, 150, and 24 Carmody-Wait 2d, NY Prac, §145:346). This principle has been applied with consistency in dealing with administrative determinations involving inmates (see Matter of Hakeem v Wong, 223 AD2d 765, 765 [3rd Dept., 1996]; Matter of Banks v Recore, 245 AD2d 906, 907 [3rd Dept., 1997]; People ex rel. King v Lacy, 252 AD2d 701, 701-702 [3rd Dept., 1998]; Matter of Clarke v Senkowski, 255 AD2d 848, 849 [3rd Dept., 1998]).

Respondents point out that the petition is dated June 26, 2006, one day after the date of the grievance she submitted with respect to her complaint concerning the number of computers in the BHCF law library ^[FN2]. In addition, respondents submit evidence that the appeal of the Superintendent's decision with respect to the grievance was received by CORC on September 21, 2006. The petition in this proceeding was filed (and the proceeding was therefore commenced) in late June or early July 2006. The order to show cause which initiated the proceeding is dated August 22, 2006, and was filed September 25, 2006. By virtue of all of the foregoing, it is clear that the administrative process for review of the grievance had not been concluded at the time the proceeding was commenced, and that petitioner failed to exhaust her administrative remedies.

As stated in Watergate v Buffalo Sewer (supra), the exhaustion rule need not be followed in certain limited circumstances, for example: where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power; where resort to an administrative remedy would be futile; or where its pursuit would cause irreparable injury (see, id.).The Court notes that the petition does not assert a cause of action based upon a violation of petitioner's constitutional rights. Thus, this exception to the exhaustion rule does not apply ^[FN3].

Petitioner has not demonstrated that resort to an administrative remedy would be futile. In fact the filing of a grievance on June 25, 2006, and its subsequent administrative [*3]review demonstrates just the opposite. While the petitioner advances the argument that she will suffer irreparable injury if the Court does not entertain her petition, no evidence is presented to support her contention. Nor does the petitioner present evidence that respondents' actions are wholly beyond the grant of their power. By reason of all of the foregoing, the Court finds that none of the recognized exceptions to the exhaustion rule apply. The Court finds that the petition, as it relates to the adequacy of the number of computers in the BHCF law library, must be dismissed inasmuch as it is clear that the petitioner failed to exhaust her administrative remedies prior to commencing the proceeding.

Turning to Grievance Complaint # BH-14371-05 (in which petitioner argues that there should be no charge for photocopies of legal papers) respondents argue that the proceeding is untimely commenced as the final determination was issued by CORC on January18, 2006. It is well settled that an administrative determination becomes final and binding, and the applicable statute of limitations begins to run, when the administrative action has its impact upon a party and it is clear that the party is aggrieved thereby (see, Matter of Edmead v. McGuire, 67 NY2d 714, 716; New York City Off Track Betting Corp. v. State of New York Racing & Wagering Bd., 196 AD2d 15, 18, lv denied 84 NY2d 804; Matter of Hunt Brothers Contractors, Inc. v. Glennon, 214 AD2d 817, 818-819 [3rd Dept., 1995]; Matter of Biondo v State Bd. of Parole, 60 NY2d 832, 834; Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352, 357). In other words, the statute of limitations does not commence to run until the aggrieved party is notified of an administrative determination that is unambiguous and certain in its effect (see, Matter of Edmead v McGuire, supra at 716; Matter of Hunt Brothers Contractors v Glennon, supra, at p. 819; Matter of New York State Radiological Society v Wing, 244 AD2d 823 [3rd Dept., 1997], mot for lv to app denied, 92 NY2d 802 [1998]). Finality does not occur until the administrative agency has arrived at a definitive position on the issue which inflicts actual concrete injury (see, Matter of Ward v Bennett, 79 NY2d 394, 400).

In this instance, petitioner, in the statement of facts included in the petition, makes the following comment:

"September 2005, petitioner filed grievance number #BH 14, 371-05 and exhausted her grievance review on January 18, 2006. [Exhibit D]"

Inasmuch as the petitioner acknowledges that she had exhausted her administrative remedies on January 14, 2006, and inasmuch as petitioner's papers were filed in June 2006, more than four months after the exhaustion of her administrative remedies (see CPLR 217), the Court finds that the proceeding is untimely commenced with respect to Grievance Complaint # BH-14371-05.

Turning to petitioner's Grievance No. BH-14482-05 (in which, as relevant here, petitioner argued that an inmate's poor person status should qualify the inmate for free photocopying) respondents argue that the petition fails to state a cause of action. The [*4]petition contains the following allegation:

"The Bedford Hills Correctional Facility Policy to charge .10 cents per legal copy page is discriminatory and a contemptible violation of the tenets of New York State Court Orders which grant Poor Person's relief to incarcerated defendants".

Poor person orders are granted in New York State under CPLR Article 11. The primary advantage of poor person status in civil litigation is to relieve the party (in whole or in part) of the obligation of paying filing fees charged by the county clerk and, in some instances, to require the county to pay the expense of a stenographic transcript. CPLR Article 11 does not direct or require the Department of Correctional Services to provide free photocopies of legal papers to inmates. Phrased differently, petitioner's status as a poor person under CPLR Article 11 has no relevancy with regard to the policy of the Department of Correctional Services to charge inmates for photocopies of legal papers. The allegation that a ten cent charge for photocopies is "discriminatory" is nonfactual and conclusory. The Court finds that the petition fails to state a cause of action and must be dismissed.

The petitioner has made a cross-motion for permission to amend her "complaint". The proposed amended complaint attempts to set forth a cause of action predicated on a constitutional denial of petitioner's right to access to the courts. It is argued that the petitioner is being deprived of meaningful access when respondents do not furnish an adequate number of computers in the prison library (even though typewriters are provided), and where the prison does not provide free photocopies of legal papers to inmates.

Under CPLR 3025 (b) leave to amend a pleading should be freely given (see, Edenwald Contracting Co. v City of New York, 60 NY2d 957 [1983]; Murray v. City of New York, 43 NY2d 400; Ward v. City of Schenectady, 204 AD2d 779 [3rd Dept., 1994]). This, however, does not mean that motions to amend are to be granted simply for the asking. There must be some demonstration of merit to the proposed amendment (see, Dodge v. Victory Markets, 199 AD2d 917, 919-920 [3rd Dept., 1993]; see also, Mathiesen v. Mead, 168 AD2d 736 [3rd Dept., 1990]). A motion to amend will be denied where the cause of action or defense is plainly lacking in merit (see, Matter of Prendergast v Kingston City School District, 242 AD2d 773, 774-775 [3rd Dept., 1997]).

In 1977 the United States Supreme Court in Bounds v Smith (430 US 817) affirmed the venerable principle that prisoners have a constitutional right of access to the courts, and that States have an affirmative obligation to facilitate such access (id. at 824). The Court held that this fundamental constitutional right required prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law (id.). The Supreme Court revisited the issue in 1996 in Lewis v Casey (518 US 343). In Lewis, the Court reaffirmed the principles set forth in Bounds v Smith (supra), but also [*5]indicated that an inmate must establish standing when making such a claim, by demonstrating that the inmate has suffered "actual injury" ( that is, that the inmate has been hindered or impaired in a significant way in her or his ability to access the courts).

In the case at bar, the petitioner has wholly failed to allege and/or demonstrate any specific and concrete harm which she has suffered as a result of being forced to utilize typewriters rather than computers in preparing her legal papers. Nor has she demonstrated how she has been hampered in her ability to access to the courts by reason of the ten cent charge for photocopies. Specifically, the petitioner does not indicate that any action taken by the respondent has prevented her, in any significant degree or meaningful sense, from accessing the courts. As such, petitioner has not demonstrated the merit of the foregoing proposed amendments.

The proposed amended complaint contains additional allegations predicated upon a grievance she filed on November 10, 2006 against Superintendent Perez of BHCF (Grievance BH #14-879-06) alleging that Facility officials have intimidated the Inmate Liaison Committee ("ILC"), and prevented the ILC from adding the alleged law library "problem" to its monthly agenda. The amended complaint further alleges that the ILC is prepared to purchase computers for the library from inmate funds, and that an outside vendor is willing to donate computers to the library, but the respondents refuse to allow the computers to be brought into the library ^[FN4].

All of the foregoing are matters which should be reviewed administratively before they are presented to the Court. Because there is no showing that petitioner exhausted her administrative remedies, the Court finds that she has failed to demonstrate the merit of the proposed amended complaint.

The Court concludes that the petition must be dismissed, and the motion to serve an amended "complaint" denied.

As a part of her application, the petitioner has made various motions for "emergency" and "injunctive" relief. Among her many allegations, she alleges that her access to the law library has been curtailed and her computer discs were confiscated ^[FN5]. Once again, it appears that these are matters which should be addressed administratively in the first instance. More importantly, inasmuch as the Court is dismissing the petition, [*6]the Court finds that the motion must be denied.

The Court has reviewed and considered petitioner's remaining arguments and contentions and finds them to be without merit.

Accordingly it is

ORDERED, that respondents' motion to dismiss the petition is granted; and it is further

ORDERED, that petitioner's cross-motion to serve an amended complaint is denied; and it is further

ORDERED, that petitioner's motion for emergency and injunctive relief is denied; and it is

ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the Respondent who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this Decision/Order with notice of entry.

ENTER

Dated:March 22, 2007S/_______________________________________

Troy, New YorkSupreme Court Justice

George B. Ceresia, Jr.