Opinion
DOCKET NO. A-6213-12T2
04-07-2015
PAUL ROCCIA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Paul Roccia, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the New Jersey Department of Corrections. Paul Roccia, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief). PER CURIAM
Inmate Paul Roccia appeals from a July 15, 2013 final decision of the Department of Corrections (DOC). The decision upheld a hearing officer's finding that Roccia committed prohibited act .210, "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels," in violation of N.J.A.C. 10A:4-4.1. In his appeal, Roccia asserts that he lacked proper notice that his possession of various art supplies violated agency regulations. Finding merit in his argument, we reverse.
Roccia is currently serving a lengthy sentence at the Adult Diagnostic and Treatment Facility (ADTC). On July 9, 2013, Senior Corrections Officer J. Leary conducted a search of Roccia's bunk area and found a large amount of paint and painting materials. Leary confiscated the art supplies and charged Roccia with violation of prohibited act .210.
In Leary's report, he listed the confiscated materials: "131 small paint containers, 5 large tubes of paint, 31 unmarked containers of paint, 12 pens, 29 pencils, 45 paint brushes, 1 altered laundry bag, 45 paint brushes, 1 big paint brush altered, 7 containers of [miscellaneous] liquid, 3 hard plastic spatulas, 34 squeeze tubes of paint, [and] 1 aspirin bottle [of] unknown liquid."
On July 12, 2013, a hearing was held before Hearing Officer Nolley. Roccia pled not guilty and requested and was granted counsel substitute. Roccia claimed he was unaware of any limitations on the amount of art supplies an inmate was allowed to possess. An updated version of the Revised Limitations on Possessions List was shown to Roccia and his counsel substitute at the hearing, but that revised version had not yet been published to the inmate population. Rather, Roccia and the other inmates still relied upon the 2006 Revised Limitations on Possessions List, which did not specify a limit on art supplies. Although the new list was not known to the inmates, the hearing officer found Roccia guilty of the .210 charge and sanctioned him to ten hours of extra duty and ten days loss of recreation privileges.
Roccia filed an administrative appeal from the hearing officer's determination. Assistant Superintendent Bruce Davis summarily denied Roccia's appeal on July 15, 2013, concluding that the hearing officer's decision was "based on substantial evidence." This appeal follows.
In his appeal, Roccia argues in a single point:
FAILURE TO PROVIDE APPELLANT WITH PRIOR NOTICE OF PROHIBITED CONDUCT VIOLATES APPELLANT'S DUE PROCESS RIGHTS AND AGENCY REGULATIONS.
Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 ( 1980)). When reviewing a final decision imposing disciplinary sanctions, we consider whether there is substantial evidence to support the agency's factual findings and whether it afforded the inmate due process when rendering its decision. McDonald v. Pinchak, 139 N.J. 188, 201-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995). Our function is to determine whether the administrative action was "arbitrary, capricious or unreasonable or . . . not supported by substantial credible evidence in the record as a whole." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citation and internal quotation marks omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Having reviewed the record, we find insufficient evidence to support the DOC's determination that Roccia committed prohibited act .210. The DOC concedes in its brief that the Revised Limitations on Possessions List that was in force at the time did not contain a limitation on the amount of art supplies an inmate was permitted to possess. Further, there is no evidence that Roccia intended to use the art supplies for a nefarious purpose.
Inmates are entitled to notice of the rules and regulations with which they must comply. Under N.J.S.A. 30:4-8.5, "[u]pon the arrival of a prisoner in any correctional institution in the State, he shall be furnished with a copy of the institution's rules and regulations and shall have the meaning of the same explained to him." These rules and regulations are mandated by N.J.S.A. 30:4-8.4, which states:
Subject to guidelines set down by the Director of the Division of Correction and Parole, every State penal and correctional institution shall formally promulgate and publish rules and regulations governing the rights, privileges, duties and obligations of the inmate population confined therein. Among other things, such publications shall set forth the authorized sanctions for various classes of violations of the aforesaid rules and regulations, and detail the procedures for imposing summary and administrative punishment as well as for appealing therefrom. No punishment may be meted out other than of the type and in the manner prescribed by such rules and regulations.
Although the full spectrum of rights due to a criminal defendant do not apply in a prison disciplinary hearing context, inmates are entitled to "notice of a specific alleged violation, plus the amplitude of general notice of prison rules, offenses, sanctions and the like . . . to fully satisfy constitutional and 'fairness' requirements of notice." Avant v. Clifford, 67 N.J. 496, 522, 525 (1975). Such notice cannot be vague and must "be sufficiently clear and precise so that people are given fair notice and adequate warning of the law's reach." Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n. 21 (1983).
Because due process protects an inmate's right to notice, "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926). Specifically in the prison context, "where prohibited conduct does not carry with it its own indicia of wrongdoing the need for clearly drawn prison regulations is particularly acute." Rios v. Lane, 812 F.2d 1032, 1038 (7th Cir.), cert. denied, 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729 (1987); see Smith v. Rowe, 761 F.2d 360, 364 (7th Cir. 1985) (holding that an inmate of reasonable intelligence could not be expected to understand that cameras, films, and microphones were considered contraband according to prison regulations).
Here, the 2006 Revised Limitations on Possessions List did not provide notice to Roccia that his possession of art supplies violated a prison rule or regulation. The Possessions List is made up of columns listing the various items prisoners may possess, followed by a column with the maximum amount of each item permitted, and a column noting any comments or restrictions. Most items on the list have maximum limits noted: for example, two blankets, two cough drops, and six posters. However, "painting" has comments about the type of supplies that are permissible and impermissible, but the maximum limitation column is blank. Thus, Roccia did not have notice that there was a limit on art supplies, let alone that the amount he possessed was in violation of that limit.
The DOC has not provided evidence that the 2006 Possessions List was rescinded, revised, or superseded. Any revisions relied upon by Hearing Officer Nolley have neither been provided to the court nor shown to have been published to the inmates. Importantly, the DOC's brief concedes that "there was no specific limit on paint and art supplies" in the 2006 Revised Limitations on Possessions List. The DOC claims, however, that Roccia could not reasonably have believed he was entitled to the large amount of paint and other art supplies he possessed, and that even without a specific limit, the amount he possessed was patently excessive. We find these arguments unpersuasive, and conclude that the DOC failed to establish that Roccia had sufficient notice that his possession of these art supplies was prohibited.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION