Opinion
DOCKET NO. A-0330-12T1 DOCKET NO. A-1426-12T1 DOCKET NO. A-2612-12T2 DOCKET NO. A-6065-12T3 DOCKET NO. A-2663-13T4 DOCKET NO. A-3981-13T1
09-12-2016
JUSTICE RASIDEEN ALLAH, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Justice Rasideen Allah, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney general, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, O'Connor and Suter. On appeal from the New Jersey Department of Corrections. Justice Rasideen Allah, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney general, on the briefs). PER CURIAM
In these back-to-back related appeals, consolidated for the purposes of this opinion, petitioner challenges six final determinations of the Department of Corrections (DOC) that affirmed his continued placement in the Management Control Unit (MCU) of the New Jersey State Prison. 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.
By order dated August 1, 2013, A-0330-12 and A-1426-12 were already consolidated.
After carefully reviewing the briefs, the extensive record, and the applicable legal principles, we affirm in part and remand in part.
I
Petitioner is serving a life sentence, with a thirty-year period of parole ineligibility, for murder. On January 25, 2007, the DOC's Management Control Unit Review Committee ("MCURC" or "committee") decided to place petitioner in the MCU because petitioner had developed an
extremely elaborate sophisticated system . . . that circumvented institutional safeguards with respect to financial transactions as well as the mail and telephone systems. This scheme effectively laundered money that was utilized to
introduce a variety of contraband into the security perimeter of the New Jersey State Prison.
What is of serious concern to the MCURC is the extent and complexity of the system developed by Inmate Allah. Inmate Allah has demonstrated that he is willing to go to great lengths to circumvent institutional safeguards to violate departmental rules and regulations all in an effort to further his own interests. This activity has led to the introduction of various types of contraband into a correctional institutional setting. This activity poses a threat to the safety and security of New Jersey State Prison. This illegal contraband creates a fierce competition between the inmate population.
Inmate Allah has clearly demonstrated that he is unable to successfully house in a general population setting in the New Jersey Department of Corrections. The MCURC has considered a reduction of privileges in the case of Inmate Allah. This will have little effect in modifying the behavior of Inmate Allah. Due to Inmate Allah's length of service, [l]ife with 30 years and poor institutional adjustment[,] Inmate Allah would not be a suitable candidate for an institutional transfer. A housing unit change will have little effect on Inmate Allah's conduct.
It is the opinion of the Committee that the security and structure provided by the Management Control Unit are essential in order to house Inmate Allah in a safe and secure manner. Therefore it is the decision of the MCURC that Inmate Allah be assigned to the Management Control Unit at New Jersey State Prison . . . . Inmate Allah should participate in the following programs, "Cage Your Rage" and "Thinking for a Change[.]"
To determine whether an inmate has to be assigned to the MCU, the MCURC must consider the following criteria specified by regulation:
1. Disciplinary records during the inmate's present term of confinement and any previous terms served. Weight shall be assigned to this criterion where there are a substantial number of minor charges, or one or more charges of a serious nature;
2. Past criminal offenses, including those for which incarcerated, which indicate the capability and propensity to commit or precipitate serious acts of disruption or violence;
3. Number and location of previous institutionalizations including the disciplinary records, progress reports, classification reports, or any other records which indicate involvement in serious misbehavior;
4. Reports by professional staff (for example, psychologists, social workers, psychiatrists);
5. Reports indicating present involvement in criminal activities in the community or within the correctional facility;
6. Evidence of an attitude which indicates an unwillingness to follow rules and obey orders;
7. Inability to maintain a satisfactory work record as indicated in reports by work supervisors and/or frequency of job changes;
8. Information indicating unsatisfactory adjustment to, or performance in, treatment or rehabilitative programs; and
9. Evidence of the inmate's inability or unwillingness to house with other inmates in a nondisruptive and nondestructive manner.We note that before his admission into the MCU, petitioner had committed thirty-one disciplinary infractions. These included, among other things, encouraging group demonstrations, possession of Security Threat Group (STG) materials, fighting, assault, disruptive conduct, and the use of narcotics.
[N. J.A.C. 10A:5-2.4(a).]
N.J.A.C. 10A:5-2.10(a) required that an inmate's placement into the MCU be reviewed at a "routine review" hearing at least every three months. N.J.A.C. 10A:5-2.10(a). During such hearing the MCURC was required to review the information upon which the decision was based to place the inmate into the unit, as well as reports of his conduct while in the unit. See N.J.A.C. 10A:5-2.10(a) and (e). The MCURC was not permitted to release an inmate from an MCU until he ceased being a substantial threat to the safety of others, property, and to the orderly operation of the prison. See N.J.A.C. 10A:5-2.10(f).
N.J.A.C. 10A:5-2.10 has since been modified, effective October 5, 2015.
An inmate's placement in the MCU also had to be reviewed annually to determine whether his release from the unit was appropriate. See N.J.A.C. 10A:5-2.11(a). At an annual review hearing, the inmate had the initial burden of demonstrating he had participated in the requisite jobs, and educational and recreational programs; complied with any criteria mandated by the MCURC; had not committed any "asterisk" acts; and "[a]greed to reaffirm the obligation to adhere to the rules and regulations for inmate behavior." N.J.A.C. 10A:5-2.11(b).
N.J.A.C. 10A:5-2.11 has since been repealed, effective October 5, 2015.
Prohibited disciplinary acts preceded by an asterisk "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1; N.J.A.C. 10A:4-5.1.
Petitioner administratively appealed his initial placement into the MCU. When the DOC administrator denied his appeal, petitioner appealed to us. We affirmed, finding the decision to place him into the MCU was supported by substantial, credible evidence. Allah v. N.J. Dep't of Corr., No. A-4422-06 (App. Div. June 3, 2008) (slip op. at 8-9). The Supreme Court denied certification. Allah v. Dep't of Corr., 196 N.J. 463 (2008).
Since petitioner's initial placement, the MCURC has conducted both annual and routine reviews; following each hearing, the committee determined he had to remain in the MCU. Petitioner challenged a February 24, 2011 final determination of the DOC continuing his placement in the MCU. We affirmed that determination, again noting there was substantial, credible evidence in the record to support the agency's decision. Allah v. N.J. Dep't of Corr., No. A-3837-10 (App. Div. June 21, 2012). The Supreme Court denied certification. Allah v. Dep't of Corr., 213 N.J. 538 (2013).
In his current appeals, petitioner challenges six separate DOC determinations that affirmed six successive committee decisions to retain petitioner in the MCU following a routine or annual review hearing. These six hearings were conducted at various times between June 2012 to January 2014. We briefly address the primary issues that arose during those hearings or were raised in petitioner's administrative appeals and are relevant to the contentions on appeal. For petitioner's benefit, we acknowledge he raised other arguments at these hearings or in his appeals to the DOC administrator; however, we emphasize we do not explicitly address every issue he raised. We confine our focus to only those issues that are pertinent to the contentions on appeal.
A
June 29, 2012 Hearing (A-0330-12)
During his June 29, 2012 review hearing, petitioner claimed, among other things, that the initial and subsequent review hearings were "fraudulent" because committee members did not review the evidence presented at those hearings or participate in the committee's decision to retain petitioner in the MCU.
Following the review hearing, the committee denied petitioner's request for a new initial placement hearing or, in the alternative, release from the MCU, for the following reasons:
At this time the Committee believes that continued placement in the MCU is necessary due to the nature surrounding your initial placement as well as your extensive disciplinary history. While housed within the general population, you received several fighting and assault infractions as well as threatening with bodily harm, setting a fire, possession and use of narcotics, engaging/encouraging a group demonstration, attempted conduct which disrupts, attempted misuse of electronic equipment, unauthorized use of mail/phone, and possession/exhibition of anything related to a security threat group.
In September 2010, while housed within the MCU, you were found guilty of refusing to submit to a search, refusing to obey, possession of anything not authorized for retention, and possession of another's property. As a result of your actions, you received an Administrative Segregation sanction. Furthermore, you have yet to complete the necessary programs required for consideration of release from the MCU. Based on the above, you have demonstrated an inability to successfully house within a general population setting. Your actions and lack of regard for the rules and regulations continues to pose a threat to
the safety and security of any correctional facility.
Petitioner administratively appealed the committee's decision. His primary contentions were as follows. As he had argued before the committee, he claimed the initial review hearings were "fraudulent." In support of his argument he cited testimony from a June 5, 2009 deposition of Dr. Flora DeFilippo, Ph.D., taken in federal litigation, Conquest v. Hayman, 2011 U.S. Dist. LEXIS 35668 (D.N.J. Mar. 31, 2011). DeFilippo has been the prison's clinical supervisor of the mental health outpatient program since 2003. Before setting forth the highlights of DeFilippo's testimony, we note the DOC does not dispute that she and two others comprised the committee that placed petitioner initially into the MCU on January 25, 2007.
At her deposition in the federal case, DeFilippo testified that she had been unaware that she had served as a member of the MCURC. She believed she had been merely "attending" the review hearings as the DOC's "mental health representative." Moreover, DeFilippo admitted she had never evaluated any evidence placed before the committee concerning an inmate; had never made any recommendations about whether an inmate should be placed into the MCU or, if already placed, should continue in placement; had never voted on or observed other committee members vote on whether to release an inmate from or continue an inmate in the MCU; was unaware of the standards for admitting an inmate into the MCU; did not have "any idea" about the process the MCURC used to reach a decision; had only "a general idea of what [routine and annual review] hearings are about"; and was not familiar with those sections of the New Jersey Administrative Code addressing Management Control Units.
In light of DeFilippo's deposition testimony, petitioner argued the committee's decisions to place and retain him in the MCU were invalid, and requested that the DOC Administrator vacate those decisions. In addition, he pointed out that certain members of the committee that were present at the June 29, 2012 review hearing failed to sign the committee's final written decision, having instead arranged for another prison employee to sign the notice on the member's behalf.
Petitioner further argued that, when initially placed into the MCU, he had not been provided with a summary of a confidential report on which the committee had relied. As a remedy, he wanted either the document "stricken from the record" or that he be given the opportunity to confront the prison's investigators.
On July 23, 2012, the administrator affirmed the committee's decision, noting, among other things, that petitioner's "release to the general population at this time would pose a threat to the security and orderly running of the institution."
September 25, 2012 Hearing (A-1426-12)
At the September 25, 2012 hearing, petitioner again contended the initial placement and subsequent review hearings were not properly conducted, warranting his release from the MCU. The committee declined to address these contentions, and determined to retain petitioner in the MCU because of a "demonstrated inability to successfully house within a general population setting."
Petitioner appealed and, on October 19, 2012, the administrator affirmed the committee's decision to retain him in the MCU, finding, among other things, that the committee's decision was based upon substantial, credible evidence.
December 13, 2012 Hearing (A-2612-12)
At petitioner's annual and routine review hearings on December 13, 2012, petitioner again argued his initial placement and subsequent review hearings had been improperly conducted, referring to the evidence revealed during DeFilippo's deposition. The committee again declined to address this contention.
Because of petitioner's failure to complete certain programs and to "demonstrate[] an inability to successfully house within a general population setting," the committee continued petitioner's placement in the MCU.
Petitioner's appeal to the administrator was again unsuccessful. On January 7, 2013, the administrator affirmed the committee, determining, among other things, that the committee's decision was grounded in substantial, credible evidence and that petitioner "continue[d] to pose an identifiable threat to the safety, security and the orderly operations of any NJDOC facility."
June 20, 2013 Hearing (A-6065-12)
At a June 20, 2013 review hearing, petitioner again asserted the initial placement and subsequent review hearings were "fraudulent," warranting his release from the MCU. He also argued he had completed all required programs and, thus, was eligible for release.
The committee determined petitioner had to remain in the MCU for the reasons he had been initially placed, and because of his extensive disciplinary history and his failure to complete the programs necessary for the committee to consider his release.
On appeal to the administrator, among other things, petitioner again argued the previous hearings had been improperly conducted and that, contrary to the committee's finding, he had completed all required programs.
On July 8, 2013, the administrator affirmed the committee's decision, finding "[a]ll of the topics in [petitioner's] appeal . . . ha[d] been addressed in previous appeals and are repetitive."
September 26, 2013 Hearing (A-2663-13)
At a review hearing held on September 26, 2013, petitioner argued he was entitled to a new placement hearing because his initial and subsequent review hearings had been improperly conducted. He also requested to be released from the MCU because he had completed all necessary programs and "remained charge and incident free for years." The committee decided to continue petitioner's confinement in the MCU "due to the nature surrounding [his] initial placement as well as [his] extensive disciplinary history."
On appeal to the administrator, petitioner argued he was entitled to a new hearing because his initial placement hearing was "a complete fraud," and other hearings had not been properly conducted. On October 7, 2013, the administrator rejected petitioner's appeal. He acknowledged petitioner had been charge free since September 16, 2010, but nevertheless found the committee's decision was based upon substantial, credible evidence.
January 23, 2014 Hearing (A-3981-13)
At the January 23, 2014 review hearing, petitioner relied upon "all of his previous arguments" and further maintained that he completed all required programs. The committee declined to release him from the MCU for the reasons he had been initially placed, and because of his extensive disciplinary history, the fact that he had been found guilty of "giving/taking anything of value from another" in December 2013, and had been demoted to "Phase I."
There are three "Phases" to which an inmate may be assigned while in the MCU. When initially admitted to the MCU, an inmate is placed into Phase I, which affords the least number of privileges. Phase III provides the greatest number of privileges. After an initial placement into the MCU, an inmate advances or is demoted to a particular Phase depending upon his conduct.
On administrative appeal petitioner again argued, among other things, that previous hearings had not been properly conducted, that he had completed all necessary programs, and that one of the committee members had failed to sign the committee's final decision, having instead arranged for the assistant superintendent to sign the member's name on his behalf.
On February 19, 2014, the administrator rejected all of petitioner's arguments and affirmed the committee's decision. The administrator acknowledged petitioner had completed various programs but, because he had been found guilty of taking an item of value from another inmate, was no longer eligible for release from the MCU.
B
As a result of the revelations that emerged during DeFilippo's deposition testimony, on September 25, 2014, we forwarded to the DOC specific questions for it to answer about DeFilippo's role as a member of the committee. One question sought clarification about whether DeFilippo "was contemporaneously provided with the evidence in each of the MCURC reviews concerning Allah, whether she individually approved the MCURC's decision to continue Allah's assignment to the MCU and if she was consulted on each of the decisions before they were made and issued." Another question inquired how DeFilippo's role on the committee comported with N.J.A.C. 10A:5-2.4(a), which sets forth the criteria a MCURC is to use to determine whether an inmate should be placed in the MCU.
The DOC responded to these questions with respect to only those committee decisions that were made following the June 29, 2012, September 25, 2012, and December 13, 2012 hearings. Because petitioner had not yet filed his brief addressing the June 20, 2013 and September 26, 2013 hearings, we do not fault the DOC for failing to address the latter two hearings, but absent from the DOC's response was any reference to the initial placement hearing or to any review hearings thereafter in which DeFilippo participated before her deposition on June 5, 2009.
The DOC did submit a certification from DeFilippo, dated September 22, 2014, in which she references certain remedial steps taken by the DOC after her June 5, 2009 deposition. She does not address her role on the committee before June 5, 2009. We assume the DOC does not refute that which DeFilippo revealed during her deposition testimony.
In her certification, DeFilippo noted that she has been the mental health representative for the committee since 2005, and that the statements she made during her deposition referred only to that which occurred from 2005 to the day of her deposition. Thereafter, she was briefed on what her responsibilities were as a member of the committee, as provided in the New Jersey Administrative Code.
She further certified that, since that briefing, all members of the committee have taken into consideration the evidence before it before making a decision about an inmate. That evidence includes documents supporting an inmate's initial placement; disciplinary reports; program participation reports; social services reports; medical reports; psychological interview reports; compliance with MCU placement phases; and housing reports.
DeFilippo's certification indicates that, since her deposition, she has participated in the deliberations of the committee and has voted, as have the other committee members, on whether or not to retain petitioner in the MCU. She has been voting to retain him because he was not a suitable candidate to be considered for release.
II
On appeal, petitioner filed a separate brief with respect to five of the six DOC determinations under review. In three of his five briefs, petitioner's sole argument in each brief is the same; similarly, the sole argument point made in the other two briefs is identical.
Because petitioner's appeal of the DOC's determination to affirm the committee's decision following the June 29, 2012 and September 25, 2012 hearings was consolidated, petitioner filed only one brief with respect to these two determinations.
With respect to his appeal of the DOC's final determination arising out of the June 29, 2012, September 25, 2012, December 13, 2012, and June 20, 2013 hearings, petitioner's only argument point is:
The corresponding docket numbers are A-0330-12, A-1426-12, A-2612-12 and A-6065-12.
POINT I - THE FINAL ADMINISTRATIVE AGENCY DECISIONS . . . WHICH UPHELD THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S CONTINUED PLACEMENT DECISION WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. HENRY vs. RAHWAY STATE PRISON, 81 N.J. 571, 579-80 (1980) AND ALSO IN RE TAYLOR, 158 N.J. 644, 657 (1999).As for his appeal of the agency's final determination arising out of the September 26, 2013 and January 23, 2014 hearings, his only argument point is:
POINT I: THE FINAL ADMINISTRATIVE AGENCY DECISION[S] . . . WHICH UPHELD THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S . . . CONTINUED PLACEMENT DECISIONS WAS NOT SUPPORTED BY THE RECORD AS A WHOLE, AND IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. HENRY vs. RAHWAY STATE PRISON, 81 N.J. 571, 579-80 (1980) AND ALSO IN RE TAYLOR, 158 N.J. 644, 657 (1999).
The corresponding docket numbers are A-2663-13 and A-3981-13.
As clarified in his briefs, petitioner's principal arguments are that (1) the committee's decisions following the initial placement hearing, as well as any review hearings in which DeFilippo participated as a member, are invalid for the reasons indicated in her deposition testimony and, thus, such decisions must be vacated, entitling his release from the MCU; (2) that before the initial placement hearing, petitioner was not provided with a summary of a certain confidential report and that, because such report was not utilized during the initial placement hearing, such report has to be stricken from the record; (3) that he was entitled to be released from the MCU because he completed certain programs; and (4) following the June 29, 2012, December 13, 2012, and January 23, 2014 committee hearings, some members of the committee failed to sign the committee's final written decision and instead allowed a prison representative to affix the member's signature to the decision by proxy.
In some briefs, petitioner requests that all other issues raised in his appeals before the DOC administrators be addressed. We summarily dispose of the latter argument by noting that issues not briefed are waived. See In re Bloomingdale Convalescent Ctr., 233 N.J. Super. 46, 48-49 n.1 (App. Div. 1989); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2016).
As for petitioner's remaining arguments, we briefly review the law governing the scope of our review in an appeal from a final decision of a state administrative agency. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).
Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to [] deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). The Legislature has provided for the broad exercise of the DOC's discretion in all matters regarding the administration of a prison facility. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).
Neither the United States Constitution, nor our Constitution, recognizes a right to a less restrictive custody status. Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing Jenkins v. Fauver, 108 N.J. 239, 249 (1987)). Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Id. at 29. As we have observed:
[U]nder State law, the Commissioner of the Department of Corrections has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have
no liberty right to be assigned to any particular custody level); . . . Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1.
[Id. at 29-30 (internal citations omitted).]
"Basic to the resolution of any proceeding seeking review of prison administrative action is the legal principle that courts will not interfere with the internal administration of the institution, absent action by the prison authorities which deprives an inmate of his constitutional rights or is clearly capricious or arbitrary." State v. Rydzewski, 112 N.J. Super. 517, 521 (App. Div. 1970).
Along with the Commissioner's considerable discretion in determining the custody status of inmates, "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Smith, supra, 346 N.J. Super. at 30 (citing N.J.A.C. 10A:9-4.2). However, although an inmate has no constitutionally protected right to a reduced custody status, appellate courts have not hesitated "to strike down arbitrary action" and have insisted upon "procedural fairness in the administrative process." White v. Fauver, 219 N.J. Super. 170, 180 (App. Div.), modified sub nom., Jenkins, supra, 108 N.J. 239 (1987).
As we have explained:
MCU confinement for inmates is not imposed as punishment but is used to prevent a potentially dangerous situation within the prison. It is a housing assignment within NJSP [New Jersey State Prison] where inmates are housed after a determination by the Special Classification Committee-MCU (Committee) that 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.
[Taylor v. Beyer, 265 N.J. Super. 345, 346-47 (App. Div. 1993) (footnote omitted).]
At the time of petitioner's initial review hearing in 2007, the MCURC was required to be composed of either the associate administrator or the assistant superintendent of a correctional facility; a representative from the Education or Social Services Department; and the person designated as the supervisor of the MCU. See former N.J.A.C. 10A:5-2.2(a) (Effective October 2, 2002). It is not disputed that at that initial hearing, DeFilippo acted as the representative from either the Education or Social Services Department.
N.J.A.C. 10A:5-2.2(a) was modified, effective April 21, 2008, to add as a fourth member of the committee a representative from Mental Health Services. N.J.A.C. 10A:5-2.2 was again modified, effective October 5, 2015.
The written decision pertaining to petitioner's initial placement does not indicate whether DeFilippo was a representative from the Education or the Social Services Department; the decision merely shows she signed the decision as the representative from "Professional Services."
As referenced above, before placing an inmate into the MCU, nine comprehensive criteria had to be considered by the committee. N.J.A.C. 10A:5-2.4(a)(1)-(9). Once an inmate was placed into the MCU, at each review hearing thereafter the MCURC was obligated to review the information upon which the decision was based to assign the inmate to the MCU, including disciplinary reports, program participation records, and reports of the inmate's behavior and attitude while in the MCU. See N.J.A.C. 10A:5-2.10(e). An inmate could be released from the MCU only when the inmate no longer posed a substantial threat to the safety of others, to property, or to the safe and secure operation of the prison. See N.J.A.C. 10A:5-2.10(f).
In addition, N.J.A.C. 10A:5-2.11 required the DOC to conduct an annual hearing to review the status of the inmate and determine whether release from the MCU was appropriate. See N.J.A.C. 10A:5-2.11. The inmate had the initial burden of demonstrating he had participated in the required programs, complied with the criteria mandated by the MCURC, remained free from prohibited acts preceded by an asterisk for the program year, and had agreed to reaffirm the obligation to adhere to the rules and regulations. Ibid. An inmate was to be considered for release unless the DOC could demonstrate through substantial evidence that the inmate continued to pose a threat. Ibid.
We first address petitioner's argument that any decision made by the committee on which DeFilippo was a member is invalid because, as of the time of her deposition on June 5, 2009, she had never evaluated any evidence before the committee, and had never made any recommendations about or voted upon whether an inmate should be placed into or retained in the MCU.
We are mindful inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status, see Smith, supra, 346 N.J. Super. at 29-30, and that the classification of prisoners and the privileges they receive generally rests within the discretion of the Commissioner of the DOC, N.J.S.A. 30:4-91.1. Nevertheless, as we noted above, to ensure fairness in the administrate process, appellate courts will intervene to correct arbitrary action. White, supra, 219 N.J. Super. at 180. This is one of those instances where intervention is necessary to address arbitrary and unreasonable action.
At the time of the initial hearing, the committee was made up of three members, all of whom were obligated to consider the criteria set forth in N.J.A.C. 10A:5-2.4(a). There is unrefuted evidence that at least one of the members of the committee not only did not consider this criteria, but also did not vote upon whether petitioner should be placed into the MCU.
At each review hearing, the members of the committee were obligated to review the information that led to petitioner's initial placement, as well as information pertaining to his conduct after placement in the MCU. See N.J.A.C. 10A:5-2.10(e). According to DeFilippo's deposition testimony, when she served on the committee, it was not adhering to the mandates of N.J.A.C. 10A:5-2.10(e). It is not clear how often — if at all — DeFilippo served as a member of the committee for any of petitioner's review hearings before her deposition on June 5, 2009.
The committee acted arbitrarily, capriciously, and unreasonably by placing petitioner into the MCU before all three members reviewed the information required by N.J.A.C. 10A:5-2.4(a) and in the absence of voting upon whether his placement into the MCU was warranted. There was no justification for the committee's disregard for its responsibilities under the applicable regulations. The same is true if, at any review hearing in which DeFilippo served as a committee member, the committee took action before all members reviewed the information required by N.J.A.C. 10A:5-2.10(e) or if the members failed to vote upon whether petitioner should remain in or be released from the MCU.
Where we part company with petitioner is the remedy that should be applied. In our view, the record contains substantial evidence that petitioner's placement into the MCU was warranted. However, that decision is not ours to make; that is a decision that must be made by the committee in accordance with the applicable regulations. Nonetheless, for purposes of ordering a remedy, we cannot overlook the evidence that indicates that, in 2007, petitioner's conduct threatened the safety and security of the prison.
Accordingly, we find it would be inappropriate on this record to summarily release petitioner from the MCU at this time. We instead remand this matter to the DOC with the instruction that the initial placement hearing be repeated. The entire committee shall consider all of the evidence that was before the committee at the initial hearing in 2007, and all members of the committee shall vote upon whether or not petitioner shall be placed into the MCU. No new facts may be introduced at the hearing; only that evidence that was placed before the committee at the initial hearing in 2007 may be considered.
Further, the composition of the committee shall be that as the law required at the time of the initial hearing. However, under the circumstances, DeFilippo is not to act as a member of the committee. Her replacement shall be selected in compliance with N.J.A.C. 10A:5-2.2(a) as it existed at the time of the hearing. If the other or both remaining members of the original committee are unavailable, then a new member or members also shall be chosen as replacements in compliance with this regulation as it existed in January 2007. Finally, the full committee is to adhere to the mandates of the applicable regulations in effect at that time.
Any review hearing before June 5, 2009 that concerned the petitioner and in which DeFilippo participated as a committee member shall also be repeated. The same conditions that apply to repeating the initial hearing shall apply to rehearing the review hearings. In addition to the other conditions outlined above, the composition of the committee shall be that as was required by N.J.A.C. 10A:5-2.2(a) at the time the review hearing was first conducted. Again, DeFilippo shall not participate as a member of the committee in any of these re-hearings, and no new evidence may be considered. Only that evidence that was put before the committee at any given review hearing may be considered.
The rehearings shall be completed within forty-five days. The rehearing of the initial hearing shall be conducted first. If the committee determines that petitioner should never have been placed into the MCU, petitioner shall be released from the MCU and returned to the general prison population. If the committee determines his initial placement into the MCU was warranted on the evidence, then the rehearing of the review hearings shall be conducted in chronological order, starting with the oldest review hearing. If as a result of any re-hearing it is determined petitioner should have been released, then he shall be placed back into the general prison population.
As for the six later hearings that are the primary subject of this appeal, we conclude there is no evidence that any of these hearings suffered from the same infirmities as did the initial hearing. DeFilippo certified that, since June 5, 2009, she has considered all the evidence put before the committee at each hearing in which she participated as a member and that the entire committee has voted on the decisions made by the committee. We shall not disturb the committee's decision with respect to any one of these six hearings on the ground the initial hearing and perhaps one or some of the review hearings before June 5, 2009 were not properly conducted. If on remand it is determined as a result of any of the rehearings that petitioner is to be released to the general prison population, then any decision to retain petitioner in the MCU after June 5, 2009 shall be deemed moot.
The DOC contends that we have previously considered and rejected petitioner's contention that the committee had improperly conducted the initial and review hearings. We disagree. At the time we considered petitioner's appeal of the committee's decision to place him in the MCU, petitioner was not even aware and thus did not bring to our attention that DeFilippo had not reviewed any of the evidence at the initial hearing, nor had cast a vote on whether to place him in the MCU.
Although at the time of his subsequent appeal petitioner brought to our attention the contents of DeFilippo's deposition testimony, because the transcript was not a part of the record on appeal, we declined at that time to consider this evidence and the arguments petitioner had asserted about it. Hence, our prior determinations on appeal, made without the benefit of the additional evidence that has emerged, including DeFilippo's certification, does not bind us here. See also R. 4:50-1 (independently providing for relief from judgment based on, among other things, newly discovered evidence).
Petitioner next argues he was not provided with the summary of a confidential report before the initial hearing. As we observed in Allah v. N.J. Dep't of Corr., No. A-3837-10 (App. Div. June 21, 2012), petitioner was provided with a summary of this report when he received the disciplinary charges in August 2006. We shall not revisit this issue again.
Petitioner contends he successfully completed certain programs while in the MCU, warranting his release from the unit. As the committee and the administrators have repeatedly pointed out to petitioner, the completion of certain programs does not necessarily signal an inmate is ready to be returned to the general prison population. Whether an inmate can be released from the MCU depends upon a variety of factors.
We are satisfied from our review of the record of the subject six hearings that the decisions to retain petitioner in the MCU were supported by substantial, credible evidence. The grounds for remand instead pertain to the soundness of petitioner's initial confinement to the MCU and several review hearings that followed until DeFilippo was properly advised of her role in the hearings.
After carefully considering the record and the briefs, we conclude petitioner's remaining arguments, including those which were not explicitly identified in this opinion, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and remanded in part for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
The day before this opinion was to be released, we were notified by the Deputy Attorney General representing the DOC that he had just discovered petitioner had been released from the MCU to the general prison population on or about March 18, 2016. In light of the fact that the State has not argued or indicated in any way the issues raised in this appeal are moot, we determined to issue this opinion, as scheduled. --------
CLERK OF THE APPELLATE DIVISION