Opinion
DOCKET NO. A-0243-14T3
04-15-2016
DAVID ALLEN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
David Allen, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Marvin L. Freeman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from the New Jersey Department of Corrections. David Allen, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Marvin L. Freeman, Deputy Attorney General, on the brief). PER CURIAM
Petitioner, David Allen, an inmate at the New Jersey State Prison, appeals from a final agency decision of the Department of Corrections that continued his placement in the prison's Management Control Unit (MCU). We affirm.
I.
Petitioner is serving a life sentence with a thirty-year mandatory minimum term for murder, assault, racketeering, conspiracy to commit racketeering, conspiracy to possess, manufacture or dispense a controlled dangerous substance, and two counts of terroristic threats. Beginning in 2006, petitioner was placed in the MCU because "[p]rofessional reports and information received indicate[d] that [he] pose[d] a substantial threat to the safety of others, and a threat of interrupting the operation of the institution . . . ." Not only was he "involved in illegal gang activity[,] he maintain[ed] a leadership role in this organization . . . ." Petitioner "demonstrated that he [was] not willing to house in a General Population setting without involving himself in [c]riminal activity." Such activity was "disruptive to the community at large as well as the entire New Jersey Department of Corrections."
The MCU is "a close custody unit to which an inmate may be assigned if the inmate poses a substantial threat to the safety of others; of damage to or destruction of property; or of interrupting the operation of a State correctional facility." N.J.A.C. 10A:5-1.3; see also N.J.A.C. 10A:5-2.5(a). "MCU confinement for inmates is not imposed as punishment but is used to prevent a potentially dangerous situation within the prison." Taylor v. Beyer, 265 N.J. Super. 345, 346-47 (App. Div. 1993).
Department of Corrections (Department) regulations detail the criteria to be considered in placing an inmate in MCU. N.J.A.C. 10A:5-2.4. Inmates assigned to MCU are reviewed by the Management Control Unit Review Committee (MCURC) for continued placement in MCU on a 90-day basis. N.J.A.C. 10A:5-2.10(a). At the time relevant here, there also were annual reviews. N.J.A.C. 10A:5-2.11. An inmate can be released from MCU when the inmate no longer poses "an identifiable threat: i. [t]o the safety of others; ii. [o]f damage to, or destruction of property; or iii. [o]f interrupting the secure and/or orderly operation of a State correctional facility." N.J.A.C. 10A:5-2.6(i)(2).
The regulations have been amended, effective October 5, 2015. See 47 N.J.R. 978(a); 47 N.J.R. 2500(a). The adopted proposal relocated and amended "[l]anguage pertaining to the frequency of formal review of the need for continued [MCU] assignment and release therefrom," as well as "[l]anguage pertaining to [MCURC] hearings[,]" from N.J.A.C. 10A:5-2.10(a) and N.J.A.C. 10A:5-2.11(a) to N.J.A.C. 10A:5-2.6(a). Ibid. As amended, N.J.A.C. 10A:5-2.6(a) now provides that "[a] formal review of each inmate in the [MCU] shall be made at least every [ninety] days. During the reviews, inmates in [MCU] may be considered for release, phase change, or any other action deemed appropriate as a result of the review." Although the inmate has the "initial burden of demonstrating" participation in programs, that he has not engaged in prohibited acts and has adhered to rules and regulations, the inmate "will be considered for release from the [MCU] or for a phase change" unless the Department can "demonstrate through substantial evidence, including behavior, correctional facility adjustment, and disciplinary history that the inmate continues to pose an identifiable threat: i. [t]o the safety of others; ii. [o]f damage to, or destruction of property; or iii. [o]f interrupting the secure and/or orderly operation of a State correctional facility." N.J.A.C. 10A:5-2.6(i). --------
In July 2014, the MCURC reviewed petitioner's continued placement. After considering petitioner's three-page statement in which he advised, because of his "protective custody" status, he could not participate in required programs to earn his release from MCU, the MCURC nevertheless concluded to maintain his MCU status "due to his influential position within the '9-3' Blood Set, a security threat group (STG)." It was noted that while incarcerated, petitioner "continued to exercise [his] leadership capabilities . . . in order to orchestrate criminal activities within the NJDOC as well as within the community." The MCURC noted his arrest, while incarcerated, for theft by extortion and racketeering. He also had "received institutional infractions for participating in an activity related to an STG" and, in the past, had assaulted a person in prison. The MCURC further noted he had yet to complete any of the "necessary programs required for consideration of release from the MCU." The MCURC concluded that petitioner's "actions as well as [his] influential position within an STG continue[d] to pose a threat to the safety and security of any correctional facility."
The decision of the MCURC was upheld by the Department in a final agency decision dated August 19, 2014. Petitioner appeals that decision. Based on "substantial evidence," the Department found that petitioner's "record revealed convictions for conspiracy and racketeering, which [he] committed while incarcerated. That level of criminal activity within a correctional facility not only demonstrate[d] [his] ability to influence other inmates but also pose[d] a substantial threat to safe, secure operation of DOC institutions." The Department advised petitioner there was a separate appeal process for his placement in protective custody.
Petitioner raises the following points for our consideration on appeal:
APPELLANT['S] PLACEMENT IN DUAL CUSTODY STATUS IS CRUEL AND UNUSUAL PUNISHMENT AND A VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.
The Department opposes by contending the final agency decision was not arbitrary or capricious and was supported by substantial evidence in the record as a whole.
II.
We will not interfere with an agency's final decision unless it is "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Public Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 419 (App. Div. 1956)). We note as well that the Legislature has provided the Commissioner of the Department with "broad discretionary power" in matters involving the administration of a prison facility. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999); see also N.J.S.A. 30:1B-6(g).
Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001). Classification and transfer of State prisoners is placed within the sole discretion of the Commissioner of the Department. N.J.S.A. 30:4-91.1 to -91.3. As such, the Commissioner has considerable discretion in determining the custody status of inmates. Smith, supra, 346 N.J. Super. at 29. Further, "a reduction in custody status is a matter of privilege, not of right." Smith, supra, 346 N.J. Super. at 30; N.J.A.C. 10A:9-4.2.
We find no error in the Department's decision to continue petitioner's placement in MCU. There was substantial credible evidence on the record based both on his past record, that initially necessitated his placement in the MCU, and on the current information. Petitioner had been convicted of conspiracy and racketeering for an offense committed while incarcerated and continued to maintain an influential position within an STG, which posed a continuing threat to the safety and security of the facility. Also, petitioner had not completed the programs required for consideration of release.
Although petitioner alleged that his continuation in MCU constituted a due process violation, no such violation was shown. Administrative segregation and protective custody do not present "atypical, significant deprivation in which a State might conceivably create a liberty interest." Sandin v. Conner, 515 U.S. 472, 486, 115 S. Ct. 2293, 2301, 132 L. Ed. 2d 418, 431 (1995). Specifically, a management unit which segregates gang members in order to prevent violence and promote prison safety does not impose hardship that would give rise to due process protections. Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002). Ample "process" was afforded petitioner through the Department's regulations. The Department regulations accorded him notice, the assistance of an inmate paralegal, an opportunity to be heard and then the ability to appeal the MCURC's decision, all in keeping with appropriate process. See N.J.A.C. 10A:5-2.6(b), -(c), -(i); N.J.A.C. 10A:5-2.7.
Petitioner alleges his status constitutes constitutional "cruel and unusual punishment" because, in addition to MCU status, he also is assigned to protective custody for his own safety. We agree with the Department that petitioner's protective custody status is not part of this appeal because petitioner did not follow the applicable procedures to review that designation. See N.J.A.C. 10A:5-5.3 to -5.4. Even if his lack of "congregate" status for his own safety, arising from his protective custody status, does pose some challenge to him in completing courses, he has no constitutional right to any reduced custody status and in any event, he acknowledges having not completed the requirements.
Measures needed for petitioner's own protection are administrative decisions within the discretion of the facility. See Bell v. Wolfish, 441 U.S. 520, 547-548, 99 S. Ct. 1861, 1878-1879, 60 L. Ed. 2d 447, 474 (1979). To the extent that conditions of prison confinement "are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L. Ed. 2d 59, 69 (1981). In fact, petitioner does not even contend, much less show, that his "dual designation" fails to "conform with contemporary standards of decency[,]" is disproportionate to some offense, or goes beyond what is needed for some "legitimate penological objective[,]" all components of any Eighth Amendment "cruel and unusual punishment" analysis. See State v. Maldonado, 137 N.J. 536, 556-57 (1994).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION