Opinion
DOCKET NO. A-4879-13T2 DOCKET NO. A-0043-14T3
07-29-2016
MATT GERALD GREEN, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Matt Gerald Green, appellant pro se, in A-4879-13 and A-0043-14. John J. Hoffman, Acting Attorney General, attorney for respondent in A-4879-13 (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent in A-0043-14 (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Carroll and Sumners. On appeal from the New Jersey Department of Corrections. Matt Gerald Green, appellant pro se, in A-4879-13 and A-0043-14. John J. Hoffman, Acting Attorney General, attorney for respondent in A-4879-13 (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent in A-0043-14 (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief). PER CURIAM
Matt Green, an inmate at New Jersey State Prison (NJSP), filed separate appeals of decisions by the New Jersey Department of Corrections (DOC). We have consolidated these appeals for the purpose of issuing a single opinion. In A-4879-13 (disciplinary appeal), Green appeals the May 19, 2014 agency decision that he was guilty of prohibited act *.704, perpetrating fraud, deceptions, confidence games, riots or escape plots, N.J.A.C. 10A:4-4.1(a), and imposed sanctions. In A-0043-14 (indigency appeal), Green appeals the July 14, 2014 agency decision that he did not qualify as an indigent inmate under N.J.A.C. 10A:1-2.2, which would have entitled him to receive medical, dental, hygiene, and legal needs free of charge. Without the indigency status, the DOC made loans to Green's inmate trust account (inmate account) to cover his expenses, which Green had to pay back.
For the reasons that follow, we affirm the determination that Green was not indigent and owes the DOC for loans made to his inmate account, and reverse the determination finding Green guilty of prohibited act *.704.
I.
The disputes emanate from a two-year investigation commencing in 2012 by the DOC's Special Investigations Division (SID) which revealed a large scale conspiracy between NJSP inmates, NJSP staff, and civilians, to provide contraband, such as controlled dangerous substances (CDS) and cell phones, to NJSP inmates. Contraband was smuggled into the prison and paid for by civilians depositing money orders to inmate accounts. The scope of the conspiracy was delineated in 403 pages of confidential criminal investigation reports prepared by SID.
Referred to as, Confidential Appendix in the DOC's opposition brief in A-4879-13, the reports were provided to the court upon request and were not provided to Appellant.
One of the reports prepared by Senior Investigator Rafael Dolce detailed his interview with a confidential cooperating witness (CW), who described an extensive scheme of staff corruption, narcotics distribution, and money laundering. Green was among the approximately thirty inmates identified by the CW as a participant. According to the CW, Green's mother, identified as Denise Ring, received money from NJSP inmates to pay-off gambling debts owed to Green and mailed the proceeds to Green's inmate account. Dolce subsequently obtained a $200 money order dated December 27, 2012, payable to Green mailed to his inmate account.
On April 4, 2014, Dolce issued a disciplinary report charging Green with prohibited act *.803/*.207, conspiracy to possess monies in excess of $50. The charge stated that "[a]n investigation has determined that inmate Green conspired with other inmate(s) and civilian(s) to receive monies which were the proceeds of criminal activity. $200 was credited to [Green's inmate] account on [January 7, 2013]. It is requested that the captioned funds be seized as contraband." After the charges were investigated and served on Green, it was determined that the charges had merit and were referred for a disciplinary hearing.
At the hearing on April 11, the disciplinary hearing officer (DHO) modified the charge to prohibited act *.704, perpetrating fraud, deceptions, confidence games, riots or escape plots. The DHO determined this was a more appropriate charge due to Green "defrauding [the] DOC system by having a money order sent into the facility while knowingly false and fraudulent information [sic]." According to the hearing record, Green requested and was provided counsel substitute. However, Green contends on appeal that he did not request counsel substitute and protested his appointment, claiming the inmate assigned to him was a confidential informant for the DOC. The hearing was postponed to April 30, when Green requested confrontation of Dolce.
Set forth in document titled "Adjudication of Disciplinary Charge."
At the hearing, and in accordance with procedure, Green's confrontation of Dolce was through his prepared written questions given to the DHO to ask Dolce. Four of the nineteen questions were determined by the DHO to be irrelevant or as inappropriately seeking confidential information and were not posed to Dolce. According to Dolce, Green conspired with other inmates and civilians to receive monies that were the proceeds of criminal activity. The DHO was given the SID criminal investigative reports but they were not shared with Green "due to an ongoing criminal investigation and to avoid violence and retaliation."
Green was shown a copy of the $200 money order sent by "Denise Maxfield." Green contended that she was his aunt - not his mother - which could be verified by DOC records, and that her maiden name was "Ring." The DHO denied Green's request to obtain a statement from Maxfield, or have her testify because she was not in the custody of the DOC. Green submitted a written statement in his defense.
Pursuant to N.J.A.C. 10A:4-9.13(a)(8), an inmate's witness must be in the custody of the DOC to be called as a witness.
The hearing was to be continued on May 2. However, it was postponed to allow the DHO to review the SID investigation reports and prepare a summation of the evidence. On May 5, the DHO found Green was guilty and issued the following summation:
DHO relies on A1 & A2 copy of the money order and inmate[']s account statement showing a credit for $200[]. Refer A6, summary prepared by DHO listing a confidential witness confirms monies were sent into inmate Green as payment of narcotics. Additionally, confidential records support CW's statement. Inmate Green's defense of never possessing the money is not supported, inmate admitted in his statement he used said funds to purchase commissary. Refer A7, definition of possession is to control or maintain something. Once funds are put into inmate[']s account he does have control over its use. Further, DHO modified charge to a [*.]704, due to inmate defrauding DOC system by having a money order sent into the facility while knowingly false and fraudulent information. Inmate provides no defense that the money order was sent [] from the sender listed on the document, "Denise Maxfield.["] Refer D4 Q&A #18. Confirming evidence supports "Denise Maxfield" was not the actual sender of said funds. Totality of evidence supports the charge. DHO notes ability to keep hearing within normal time frames. Inmate Green D1, D2, D3 request[s] are repetitive and ask for irrelevant evidence to determine guilt or innocence. DHO has ability to keep hearing from becoming an adversarial process. All due process rights [were] afforded to inmate Green. DHO notes A2 & A3, no prejudice in inmate preparing defense.Green was sanctioned to ten days detention, with credit for time served, 210 days administrative segregation, 210 days commutation time, and confiscation of $200. Accordingly, $200 was removed from his inmate account.
[(Emphasis added).]
That same day, Green filed an administrative appeal. He supplemented his appeal eleven days later. The appeal was denied on May 19, based upon the finding that a "preponderance of evidence presented supports the decision of the [DHO] and the sanction imposed is appropriate." Green subsequently filed an appeal with this court.
In the meantime, as a result of the sanction confiscating $200 from Green's inmate account, the DOC placed a hold on the remaining balance, reducing the account to zero. On May 22, Green filed an Inmate Remedy System Form (IRF) seeking a declaration of indigency, and that the DOC provide for his medical, dental, hygiene, and legal needs free of charge. Thereafter, Green's inmate account received loans from the DOC to cover his expenses.
On June 9, the NJSP business office denied Green's request on the basis that he did not satisfy N.J.A.C. 10A:1-2.2, which provides an "'indigent inmate' means an inmate who has no funds in his or her [inmate] account and is not able to earn inmate wages due to prolonged illness or any other uncontrollable circumstances, and who has been verified as having no outside source from which to obtain funds." Green filed an administrative appeal asserting that he had a zero balance in his inmate account and no outside sources from which to obtain outside funds.
On July 14, 2014, Green's administrative appeal was denied because he did not qualify as an indigent inmate under N.J.A.C. 10A:1-2.2 as his inability to work was due to his administrative segregation, a circumstance he controlled. Green's appeal with this court ensued.
II.
Our standard of review is well-known. Our review of agency action is limited. Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)). Decisions of administrative agencies carry with them a "presumption of reasonableness." Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div. 2015) (quoting City of Newark v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). We reverse an agency's decision only when it is arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence. In re Herrmann, 192 N.J. 19, 27-28 (2007).
Disciplinary Appeal A-4879-13
Initially, we address Green's contentions that the DHO deprived him of basic due process rights. Specifically, Green contends the DHO: (1) did not provide him written notice of the revised disciplinary charge, prohibited act *.704, at least 24 hours prior to the hearing; (2) altered the adjudication record and destroyed material defense documents; (3) denied him his basic right to defend himself by appointing a counsel substitute who was controlled by the DHO in order to obtain relevant information during the hearing; (4) did not allow him to impeach Dolce through the use of a motion for request for admissions; (5) denied him his right to attend and participate in the May 2 disciplinary hearing; (6) only allowed counsel substitute to put forth a leniency defense; (7) relied on a dictionary definition of "possession" to prove he received funds from illegal activity contrary to prohibited act *.704, instead of the guidelines regarding inmate mail and receipt of funds into inmate accounts as set forth in N.J.A.C. 10A:3-6.6(a)1-5 and (b), N.J.A.C. 10A:18-2.13(a) and (b), and N.J.A.C. 10A:31-19; (8) denied him the right to defend himself during the administrative appeal by not providing him with a copy of the disciplinary decision; (9) denied him his right to call Maxfield as a witness; and (10) denied him his right to a written statement of the evidence.
Prison disciplinary hearings are not a criminal prosecution, and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights, defined in Avant, include: written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal that may consist of personnel from the central office staff of the DOC; a limited right to call witnesses and present documentary evidence in defense of the charges; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute. Id. at 525-33.
When a DHO relies on confidential evidence in finding an inmate guilty, the adjudication shall contain:
i. A concise summary of the facts on which the Disciplinary Hearing Officer . . . concluded that the informant was creditable or his or her information reliable; and
ii. The informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in such statement.
[N.J.A.C. 10A:4-9.15(b)(1)(i)-(ii).]
The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. McDonald v. Pinchak, 139 N.J. 188, 192 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995). The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.
We have carefully reviewed the record and conclude Green's due process contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Green was provided with adequate due process protections in the processing and hearing of the charge filed against him.
Next, we address Green's argument that the DOC's decision was arbitrary, capricious, and unreasonable, and not supported by substantial credible evidence in the record. Green contends that there was no substantial evidence to lead a reasonable person to believe the $200 money order was sent to him as part of any fraud. Rather, he contends it was sent by his aunt in conformance with DOC regulations. He argues the DOC provided no proof that his aunt was not the person sending him the money, or that it was payment for selling narcotics as determined by the DHO. He points out that the SID never contacted his aunt to confirm if, and why, she sent Green the money order. Green also contends the lack of proof was confirmed when he was again charged with prohibited act *.704 arising from the same $200 money order; the DOC alleged that Green "provided his mother[']s information to another inmate confined at [NJSP] in order to conceal an illicit transaction." On November 17, 2014, a different DHO determined that, based upon her review of the same confidential documents considered in this appeal, Green was not guilty.
Although not an issue before us, we concluded in Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999), that the double jeopardy prohibition does not per se bar successive prison disciplinary prosecutions for the same infraction.
"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). When reviewing a DOC prison discipline decision, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates due process. See McDonald, supra, 139 N.J. at 194-95. Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Plainfield-Union Water Co., 14 N.J. 296, 307 (1954)).
"Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)), certif. denied, 127 N.J. 323 (1990). Thus, we may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis, supra, 202 N.J. Super. at 489-90.
Based upon our review of the record on appeal, including the confidential appendix, we are constrained to conclude there was no substantial evidence to support the DOC's finding that Green was guilty of prohibited act *.704. First of all, there are conflicting allegations of Green's underlying illicit activity forming the alleged basis for the $200 deposit into his inmate account. According to the criminal investigation report, the CW stated that Green's mother sent him money as payment for gambling debts owed to Green. However, according to the DHO's summary of evidence, the CW stated the money was sent to Green's inmate account as payment for narcotics. While this discrepancy might be considered an immaterial misinterpretation of the criminal investigation reports, we view it as an indication of the lack of substantial evidence against Green. Other than the CW's statement, there is no corroboration that Green was involved in gambling or narcotics. In fact, the CW did not state how much money "Denise Ring" sent to Green.
We find no significance in the fact that the sender of the money order may have been Green's aunt, as he contends, and not his mother, as contended by the CW. --------
There is also no indication how the CW's allegation as to Green was credible or reliable. The 403 pages of investigation reports contain detailed corroboration of the conspiracy involving the infiltration of narcotics and cell phones into NJSP, but hardly any mention of Green. There is one sentence reciting the allegation, with another sentence identifying the money order in question. Further, the reports identify thirteen inmates as suspects, but not Green.
Moreover, regardless of whether Green's illicit activity was gambling or narcotics, the DOC provides no direct or circumstantial evidence that Green's "mother" or "aunt" received money from other civilians on behalf of NJSP inmates as compensation to Green for illegal activity. There is no indication that the SID contacted her or ever attempted to do so.
Accordingly, the CW's allegation that Green was sent money for a gambling debt is not sufficient credible evidence that the deposit of the $200 money order into his inmate account was part of a fraud on the DOC.
Indigency Appeal A-0043-14
Green contends that he qualifies as indigent because his ability to earn inmate wages was due to circumstances that he could not control. Specifically, he argues that although he had previously worked while in administrative segregation in 2010, the DOC had changed its policy since so that inmates could no longer work while in administrative segregation. Green also contends that due to his history of exercising his constitutional rights in filing grievances and civil litigation against the DOC, he is more likely to be disciplined and he has no control over the DOC's decision to place him in administrative segregation. We disagree.
We defer to the agency's fact-finding and to the agency's interpretation of regulations that are "'within its implementing and enforcing responsibility.'" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We do so in part because the agency that drafted and promulgated the rule should know its meaning. Essex Cty. Bd. of Taxation v. Twp. of Caldwell, 21 N.J. Tax 188, 197 (App. Div.) (citation omitted), certif. denied, 176 N.J. 426 (2003). However, "[a]n appellate tribunal is . . . in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Thus, we may intervene when an agency's decision rests upon a misinterpretation of a regulation. Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995). We are also mindful that the Department has "broad discretionary powers" to promulgate regulations governing correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). We have noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo, supra, 324 N.J. Super. at 584.
The New Jersey state prison system is maintained and operated by the DOC, N.J.S.A. 30:1B-8, which is headed by the Commissioner of Corrections. N.J.S.A. 30:1B-4. Administrative segregation is defined in N.J.A.C. 10A:1-2.2 as "removal of an inmate from the general population of a correctional facility to a close custody unit because of one or more disciplinary infractions or other administrative considerations." It is within the DOC's discretion to determine whether an inmate in administrative segregation has the opportunity to work and earn wages. See Lorusso v. Pinchak, 305 N.J. Super. 117, 118-19 (App. Div. 1997) (explaining that inmate has no constitutional right to work in a facility and the DOC's classification of inmates may prohibit an inmate in a job assignment), certif. denied, 153 N.J. 403 (1998).
Considering these principles, we will not disturb the DOC's decision. Green did not satisfy the definition of an indigent inmate pursuant to N.J.A.C. 10A:1-2.2. The sole question is whether his inability to work and earn inmate wages was due to "uncontrollable circumstances." Ibid. At the time the DOC determined Green was not indigent, he was unable to work because he was in administrative segregation due to the finding that he was guilty of prohibited act *.704. In accordance with DOC's authority to manage the operations of its facilities, Green was prohibited from earning inmate wages while in administrative segregation.
The fact that we have now concluded that Green should not have been found guilty does not mean that the DOC incorrectly applied N.J.A.C. 10A:1-2.2. At the time of the DOC's decision, Green was in administrative segregation based on an adjudication that he committed prohibitive act *704.
We also find no merit to Green's contention that by his frequent challenges to the DOC, he has no control over being placed in administrative segregation. Green has not shown that the DOC's decision to restrict an inmate from earning wages during administrative segregation is arbitrary, capricious or unreasonable. Administrative segregation was a temporary condition that does not limit an inmate's ability to earn wages upon return to general population.
In sum, we affirm the agency decision under review in A-0043-14 that Green was not indigent, but reverse the agency decision under review in A-4879-13 that Green violated prohibited act *.704. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION