Opinion
DOCKET NO. A-2698-13T4
07-21-2014
NADRELL McMILLAN, Plaintiff-Appellant, v. WARDEN EDMOND CICCHI, MIDDLESEX COUNTY ADULT CORRECTIONAL CENTER and COUNTY OF MIDDLESEX, Defendants-Respondents.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael A. Priarone, Designated Counsel, on the brief). Thomas F. Kelso, Middlesex County Counsel, attorney for respondents (Benjamin D. Leibowitz, Senior Deputy County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-96-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael A. Priarone, Designated Counsel, on the brief).
Thomas F. Kelso, Middlesex County Counsel, attorney for respondents (Benjamin D. Leibowitz, Senior Deputy County Counsel, on the brief). PER CURIAM
Plaintiff Nadrell McMillan, a pretrial detainee at defendant Middlesex County Adult Correction Center (MCACC or the jail), appeals from a final judgment dismissing his complaint for injunctive relief relating to conditions of his confinement. Because we conclude that the conditions about which plaintiff complains do not amount to punishment, see generally Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), we affirm, substantially for the reasons expressed by Judge Ciuffani in his opinions of August 23 and December 5, 2013.
The essential facts are undisputed. Plaintiff and twenty-four co-defendants are charged in a seventy-nine count indictment with "being members or associates of a criminal organization known as 'the Bloods Criminal Street Gang,' and having committed the crime of racketeering by committing crimes of violence" to protect and expand "the enterprise's criminal operation, which includes assaults, murder, intimidation, drug trafficking and threats of violence against rival gang members, law enforcement, and potential witnesses to the crimes of the enterprise." The indictment alleges that members and associates of the gang "promote a climate of fear through intimidation, violence and threats of violence intended to promote the authority of the . . . enterprise and insulate its members from criminal responsibility" for drug distribution and violent crimes committed by its members and associates. Plaintiff is alleged specifically to have committed "racketeering conduct by engaging in or conspiring to commit the crimes of [c]onspiracy, [a]ggravated [a]ssault, [c]onspiracy to [c]ommit [m]urder, [m]urder and [p]ossession of a [w]eapon for [u]nlawful [p]urpose" in eight counts of the indictment. He is being held on $1,000,000 bail.
The parties have not included a copy of the indictment in their appendices. We take this summary from Judge Ciuffani's August 23, 2013 letter opinion.
Since his arrest in November 2012, plaintiff has been confined in administrative segregation and denied the "privileges and amenities" accorded inmates in general population. He is confined alone in his cell twenty-three of twenty-four hours a day five days a week and twenty-four hours a day on weekends and holidays. The hour outside his cell is spent in a ten foot by ten foot caged recreation enclosure in which he may exercise or use the phone provided to contact family or friends. He may also use the shower during that hour. Once each week for twenty minutes, he is allowed to make use of a video monitor to participate in non-contact visits with individuals coming to the jail to see him. While in the secured recreation enclosure, plaintiff may speak to the correction officer on duty or call over to the inmate occupying another secured recreation enclosure nearby. Plaintiff, as Judge Ciuffani wrote, is
Plaintiff apparently spent twenty days in general population during April 2013.
denied contact visits, visits to the library, denied access to many of the recreation facilities in the jail, including outdoor and indoor basketball courts, gyms and exercise rooms, and is not permitted to watch television,[] to socialize or take his meals with other inmates. All of his visits with family and friends are by way of video monitor, they are like his phone calls, recorded by the facility.
During the pendency of this matter, the jail installed a television which plaintiff can watch while he is in the secured recreation enclosure.
The judge took two days of testimony from the Warden, defendant Edmond Cicchi, the Chief of Program Services, Joyce Pirre, who heads the inmate classification committee, and the correction officer responsible for overseeing the jail's administration, including its gang intelligence unit, Lieutenant Robert Grover. In addition to testifying to the facts set out above, the witnesses explained the uses of administrative segregation in the jail and plaintiff's classification.
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." Plaintiff is not in administrative segregation for disciplinary reasons but because of his alleged gang affiliation. The judge found that plaintiff's classification was as a result of the allegations of the indictment and information obtained by the jail "regarding plaintiff's gang affiliation" and "the known presence of dangerous rival gang members in the [j]ail," which poses "serious legitimate security and safety concerns . . . for plaintiff, jail staff and the public."
Plaintiff's counsel notes that plaintiff, who appears to have been twenty-one years old at the time of his arrest, has no criminal record and has not identified himself as a member of any gang.
After taking testimony and hearing argument, Judge Ciuffani denied plaintiff's request for a preliminary injunction, finding that he had failed to exhaust his administrative remedies by appealing his assignment to administrative segregation to the classification committee. Heeding the admonition of Bell that "the problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions," and thus "[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security," Bell, supra, 441 U.S. at 547, 99 S. Ct. at 1878, 60 L. Ed. 2d at 474, the judge determined that defendants "should be afforded the opportunity to consider [plaintiff's] application before any judicial intervention."
Plaintiff applied to defendants with seven specific requests designed to ameliorate the conditions of his confinement. Defendants responded by letter specifically responding to each. Defendants closed their letter by stating that "[t]o the extent that the requests . . . can be accommodated, partially if not fully, the [j]ail has undertaken to do so, without compromising the safety and security of plaintiff McMillan, other pre-trial detainees, inmates, [c]orrections [o]fficers, and civilian staff at the jail."
Defendants' letter is attached as Exhibit A to Judge Ciuffani's opinion of December 5, 2013.
Having exhausted his administrative remedies, plaintiff again applied to the Chancery Division for relief. Significantly, plaintiff did not seek to be moved to general population. As Judge Ciuffani noted, "[p]laintiff's counsel candidly acknowledged the significant security risks that such an order could create for plaintiff, other inmates, sheriff's officers, MCACC employees and visitors. Accordingly, plaintiff's application focuses on changes that 'theoretically' could be made to improve [his] day to day environment."
Plaintiff's seven requests are as follows:
1. To attend the Christian Sunday services at the jail every week;
2. To have periodic contact visits with his parent and girlfriend as per the schedule allowed other inmates;
3. To attend outdoor recreation in the courtyard basketball court twice a week and another two hours in any of the indoor gym facilities;
4. To go to the library for three hours per week;
5. To have a job within the institution;
6. To take his meals outside of his cell in a pod where he can converse with the other inmates, and;
7. To have several hours a day outside of his cell in any of the pods where he can converse with other inmates.
Applying the test enunciated in Bell, Judge Ciuffani found nothing in the record to suggest any "expressed intent" to punish plaintiff on the part of defendants. The judge accepted defendants' claim that
[T]he presence of rival gang member[s] at MCACC, and even a rival sub-gang group in the gang with which [plaintiff] has been affiliated, which MCACC personnel cannot always discern or protect against, pose a serious threat to [plaintiff's] safety and security, as well as to the safety and security of [c]orrections [o]fficers and civilian staff at the MCACC.Judge Ciuffani found that the denial of plaintiff's requests to attend religious services, enjoy contact visits, use the basketball courts and gym facilities, go to the library, have a job, take his meals with other inmates, and be allowed several hours a day outside his cell to converse with others, were all properly denied as the restrictions "are reasonably related to the preservation of internal order and the institutional security in the MCACC and are not excessive in relation to that purpose."
The judge found that
[i]n addition to the "normal" "day to day" security, internal order and discipline issues which the MCACC faces, [plaintiff] and his [twenty-four] co-defendants are alleged gang members who, along with members of rival gangs, are also detainees at the MCACC. This unique set of circumstances presents a challenging set of security, internal order and discipline issues. [Plaintiff] has acknowledged this unique situation by not requesting that he be completely released from administrative segregation. The presence of rival gang members jeopardizes his own security.Noting that "[t]he security issues presented by gang members and rival gang members attending the same religious services are obvious," the judge concluded that allowing plaintiff to use the library or recreation facilities, and take his meals or congregate with other detainees, even others in administrative segregation, presents the same challenges to security and order at the jail. The judge concluded that plaintiff had not shown that defendants had "'exaggerated' [their] response to the genuine security considerations that activated his restrictions," and that defendants had made reasonable efforts to both ameliorate the conditions of plaintiff's confinement and accommodate their legitimate security concerns by arranging for clergy of his faith to visit plaintiff in his cell, to have the librarian regularly provide him with books of his choosing, to make a television and telephone available when plaintiff is recreating in the security enclosure, and to permit him weekly video visits.
Plaintiff appeals contending that his "incarceration in solitary confinement" at the MCACC is punitive and violative of due process and the trial court erred in denying him declaratory or injunctive relief. We reject these arguments.
The parties agree that Bell controls this case. There, the Supreme Court explained that when a pretrial detainee challenges an aspect of his detention, not alleging that it infringes any express provision of the constitution, what is at issue "is the detainee's right to be free from punishment and his understandable desire to be as comfortable as possible during his confinement, both of which may conceivably coalesce at some point." Id. at 535, 99 S. Ct. at 1871, 60 L. Ed. 2d at 465 (citation omitted). When, as here, the only constitutional interest implicated is the detainee's right not to be deprived of his liberty without due process of law, the Court held that "the proper inquiry is whether those conditions amount to punishment of the detainee." Id. at 535, 99 S. Ct. at 1872, 60 L. Ed. 2d at 466.
We reject defendants' procedural arguments and consider plaintiff's appeal on the merits.
As the Bell Court explained the test:
A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which the restriction may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned to it. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to "punishment." Conversely, if a restriction or condition is not reasonably related to a legitimate goal -- if it is arbitrary or purposeless -- a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.
[Id. at 538-39, 99 S. Ct. at 1873-74, 60 L. Ed. 2d at 468 (citations and internal quotation marks omitted).]
The Court admonished that judges applying this test "must be mindful that these inquiries spring from constitutional requirements and that judicial answers to them must reflect that fact rather than a court's idea of how best to operate a detention facility." Id. at 539, 99 S. Ct. at 1874, 60 L. Ed. 2d at 469.
Judge Ciuffani heard the testimony of the Warden and two other senior administrators of the jail and could discern no intent on the part of defendants to have assigned plaintiff to administrative segregation for the purpose of punishing him. That finding is entitled to our deference. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). Although we reject plaintiff's characterization of his detention as "solitary confinement" because of the contact plaintiff is allowed with family and friends through almost daily telephone calls and weekly video visits, we do not minimize the restrictive conditions of his confinement. After careful review of the record, however, we are satisfied that the purpose of those restrictions is not punitive, but rather serves the legitimate purpose of fostering plaintiff's safety, as well as that of other inmates, correction officers, and civilian staff at the jail and maintaining security at the facility.
Plaintiff's contention that the conditions of his confinement violate Department of Corrections' regulations are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E).
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Judge Ciuffani considered plaintiff's argument that the relief he seeks "would require no great expense or elaborate renovation of the jail" in determining whether the restrictions defendants have imposed appear excessive in relation to their purpose of maintaining safety and security. The Bell Court directed that in making such determinations
courts must heed our warning that "[such] considerations are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters."
[Bell, supra, 441 U.S. at 540 n.23, 99 S. Ct. at 1875, 60 L. Ed. 2d at 469 (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495, 504
(1974).]
We are satisfied that the judge thoughtfully weighed the evidence and applied the correct standard in determining that plaintiff did not meet his heavy burden to prove that the restrictions of his administrative segregation were not the reasonable responses of MCACC officials to legitimate security concerns but instead were excessive in relation to that purpose. We affirm, substantially for the reasons expressed by Judge Ciuffani in his opinions of August 23 and December 5, 2013.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION