Opinion
DOCKET NO. A-2563-14T1
10-04-2016
JOSE VEGA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Jose Vega, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal from the New Jersey Department of Corrections. Jose Vega, appellant pro se. Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief). PER CURIAM
Jose Vega, an inmate in the State's correctional system, appeals from a final determination of the New Jersey Department of Corrections (NJDOC), which continued his involuntary placement in protective custody (PC). We affirm.
Vega is currently incarcerated at New Jersey State Prison (NJSP) in Trenton. He is serving a forty-year sentence, with a mandatory minimum of thirty years and six months, for manslaughter, kidnapping, and other offenses. According to the NJDOC, Vega is a known member of the Almighty Latin King and Queen Nation gang, which the NJDOC has declared to be a Security Threat Group (STG).
A STG is a group of inmates that pose "a threat to the safety of the staff, other inmates, the community or causes damage to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies)." N.J.A.C. 10A:1-2.2. --------
It appears that Vega was assaulted, and he thereafter enlisted other gang members to retaliate against the person who assaulted him. Vega had sixteen co-defendants in his criminal trial, and eight of those individuals were identified as Vega's enemies. On February 10, 2009, Vega was involuntarily placed in PC.
On December 15, 2014, the NJDOC notified Vega that his annual review hearing had been scheduled. The notice stated that "the purpose of the hearing will be to determine whether you should be placed/retained in [PC] because of a serious threat of harm to your well-being if you remain in the general population of any State correctional facility."
The hearing took place on December 17, 2014. At the hearing, Vega was provided the assistance of counsel substitute. The hearing officer offered Vega the opportunity to obtain witness statements but he declined. Vega asserted that he does not need PC, and that the information the NJDOC had relied upon in the past for his placement in PC was the same information the NJDOC had used for the previous five years.
Vega submitted a statement from inmate Juan Rosario, who asserted that he is the godfather of Vega's two children. Rosario stated that he and Vega "do not have any problems." Rosario said the prosecutor continued to manipulate the NJDOC, and Vega should be placed in general population.
The hearing officer determined that Vega should remain in PC. The hearing officer relied on confidential reports of the Special Investigations Division (SID), dated October 23, 2013, and November 18, 2014. The hearing officer noted that the 2014 report indicated that the material facts had not changed, and that Vega's continued placement in PC was necessary to ensure his safety and the orderly running of the facility. The hearing officer noted that she could not confirm the authenticity of Rosario's statement.
On January 8, 2015, Vega appealed his placement in PC to the administrator of NJSP. On that same day, the assistant superintendent of NJSP denied Vega's appeal. The assistant superintendent stated that the hearing had been conducted in accordance with the relevant sections of the administrative code, and the evidence showed that Vega's continued placement in PC was warranted. This appeal followed.
On appeal, Vega argues that his continued placement in PC is a violation of his protected liberty interest. He contends there is insufficient credible evidence to support the NJDOC's decision to continue his placement in PC.
The scope of our review of a final decision of an administrative agency is strictly limited. In re Taylor, 158 N.J. 644, 656 (1999). When reviewing an agency's decision, we consider whether: (1) the agency's decision violates the New Jersey Constitution or the Constitution of the United States; (2) "the agency's action violates express or implied legislative policies;" (3) there is substantial evidence to support the findings of fact upon which the decision is based; and (4) "in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997) (quoting George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994)).
On appeal, Vega argues that his continued placement in PC represents a denial of his constitutionally-protected liberty interest. In a prison context, liberty interests protected by the Due Process Clause are limited to the freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995).
The Sandin Court held that an inmate's placement in disciplinary segregation is not the type of "atypical, significant deprivation" that might create a liberty interest because conditions imposed "mirrored those conditions imposed upon inmates in administrative segregation and protective custody." Id. at 486, 115 S. Ct. at 2301, 132 L. Ed. 2d at 431. See also Griffin v. Vaughn, 112 F.3d 703, 706-09 (3d Cir. 1997) (holding that administrative segregation under relevant Pennsylvania regulations did not impose an "atypical and significant hardship").
The NJDOC's regulations specify the conditions of PC. N.J.A.C. 10A:5-5.6 to -5.19. Inmates in PC are placed in cells with ventilation, reasonable temperatures, sufficient light, and good sanitary conditions. N.J.A.C. 10A:5-5.6. The inmates are served "regular correction facility meals," unless a special diet has been prescribed and approved. N.J.A.C. 10A:5-5.7. They are provided hair care services as needed, and given the opportunity to shave and shower several times a week. N.J.A.C. 10A:5-5.8.
Additionally, inmates in PC are provided with personal items for use in their cells "to the same extent as such items are provided for inmates in general population." N.J.A.C. 10A:5-5.10(b). Bedding, linen and laundry service is the same as that provided to the general inmate population. N.J.A.C. 10A:5-5.11. The inmates are provided with access to the courts, opportunity for correspondence, visits, and telephone calls. N.J.A.C. 10A:5-5.12 to -5.13.
Inmates in PC are given opportunities for recreation. N.J.A.C. 10A:5-5.14. They are also provided with educational opportunities, which "shall be comparable to those available to inmates in general population to the extent possible in accordance with security considerations, resources, budgetary constraints and [PC] Unit internal management procedures." N.J.A.C. 10A:5-5.15(c).
As indicated in the NJDOC's regulations, the conditions of PC do not impose an "atypical and significant hardship" upon inmates placed there when considered "in relation to the ordinary incidents of prison life." Sandin, supra, 515 U.S. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 438. We therefore conclude that Vega's placement in PC does not implicate any protected liberty interest. See also Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002) (holding that inmates in the New Jersey correctional system who are placed in the STG Management Unit for an indefinite time are not subjected to any "atypical and significant hardship").
Nevertheless, as noted, the NJDOC's regulations provide that inmates who are involuntarily placed in PC are entitled to an annual in-person review hearing. N.J.A.C. 10A:5-5.4. The hearing must conform to the procedures in N.J.A.C. 10A:5-5.2 and -5.3. On appeal, Vega argues that there is insufficient evidence to show that his continued placement in PC is required.
We are convinced, however, that there is sufficient credible evidence in the record to support the NJDOC's decision in this matter. Inmates may be placed in PC on the recommendation of the SID, a sentencing court, prosecutor, correctional facility staff, or by the order of the correctional officials. N.J.A.C. 10A:5-5.1(a)(1) to (4). Furthermore, an inmate may be placed in PC voluntarily or involuntarily. N.J.A.C. 10A:5-5.1(a)(5) to (6). An inmate placed in PC involuntarily is entitled to notice and a hearing. N.J.A.C. 10A:5-5.2.
The inmate is informed of all information relative to his placement in PC, "with the exception of information designated confidential." N.J.A.C. 10A:5-5.2(j). Generally, the inmate is permitted to be present for the hearing, unless "the security or order of the facility would be jeopardized." Ibid. An inmate placed involuntarily in PC may appeal the hearing officer's decision to the prison administrator or his designee. N.J.A.C. 10A:5-5.3. The inmate is entitled to an in-person hearing once a year, or more often if deemed necessary. N.J.A.C. 10A:5-5.4(b).
Here, the hearing officer relied upon the confidential SID reports, which indicate that Vega's continued placement in PC is required for his safety. Among other things, the reports note Vega's gang membership and the circumstances that led to his incarceration. The reports state the circumstances that led to Vega's placement in PC have not materially changed.
Vega argues that the hearing officer erred by relying upon the SID's reports. He contends that the hearing officer failed to provide "a concise summary of facts" to support the conclusion that the "informant was credible or his or her information reliable." N.J.A.C. 10A:5-5.2. Vega also argues that the SID's reports erroneously conclude that there has been no material change in the circumstance that led to his initial placement in PC. He further argues that he would not be in danger if returned to general population. We are convinced that these arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).
We are convinced that Vega's annual review hearing was conducted in conformance with the regulations that apply to placement in PC, and there is sufficient evidence to support the NJDOC's decision to continue Vega's placement in PC. The record supports the NJDOC's determination that Vega would be at risk of serious harm if placed in the general population of any correctional facility.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION