Opinion
DOCKET NO. A-1582-13T1
06-24-2016
LESTER ALFORD, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Lester Alford, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the New Jersey Department of Corrections. Lester Alford, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief). PER CURIAM
In this prison disciplinary appeal, Lester Alford challenges the August 2, 2013 final decision of the New Jersey Department of Corrections (DOC), continuing his placement in the Management Control Unit (MCU). Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
I.
Alford is serving a fifty-year sentence with a thirty-year mandatory-minimum term for murder and unlawful possession of a weapon. Since his incarceration in 1996, Alford has been found guilty of thirty-three disciplinary infractions including cell phone possession, narcotics possession, weapons possession, damaging government property, refusing to submit to a search, attempting to take a hostage, performing sexual acts with others, and assault. Most significantly, in June 2006, Alford was found in possession of a letter detailing the armed take-over of four correctional institutions in New Jersey and containing information on smuggling of contraband into the institution and his ability to corrupt staff. On June 16, 2006, Alford was placed under the highest security precautions in an administrative segregation unit cell in the Administrative Close Supervision Unit (ACSU) of the East Jersey State Prison (EJSP) in Rahway.
On March 5, 2009, EJSP-ACSU Assistant Superintendent wrote a letter to the EJSP Administrator advising him that Alford's housing status at EJSP-ACSU should be reviewed for possible placement at the MCU in New Jersey State Prison (NJSP) in Trenton. 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.
On June 4, 2009, after conducting a review of Alford's status, the EJSP Administrator sent a letter to the DOC's Director of Operations, requesting some direction regarding Alford's housing status in EJSP-ACSU. The administrator suggested:
At this point in time, if [Alford] is to remain in [ACSU] I would recommend that the security precautions currently in place be discontinued with the exception of his [h]igh [r]isk [s]tatus. However, in the event it is determined that Alford still poses too great of a security risk to the [DOC,] he might be better suited to placement in [MCU] at [NJSP].
Two weeks later, on June 17, the EJSP-ACSU Assistant Superintendent sent a memo to all ACSU lieutenants advising that, effective immediately, all additional security precautions with respect to Alford, with the exception of his high risk status, were removed. Accordingly, Alford was no longer restricted to an administrative segregation unit cell and was subsequently placed within the general population at EJSP. In March 2010, Alford was transferred from EJSP to NJSP.
Three years later, on June 25, 2013, the Associate Administrator at NJSP notified Alford that he was being placed in a pre-hearing detention-MCU that day to await his classification hearing before the Management Control Unit Review Committee (Review Committee) scheduled for July 5, 2013. The Associate Administrator noted, "[p]rofessional reports and information received indicate[d] that [Alford] pose[d] a substantial threat to the safety of others, and a threat of interrupting the operation of the institution if . . . housed in general population of any State [c]orrectional [i]nstitute." That same day, Alford requested the assistance of counsel substitute, a paralegal, in preparation for the MCU hearing.
At the hearing, Alford confirmed that he received a copy of the placement notification, but he informed the Review Committee that this was the first time he met with the paralegal and as such, they did not have sufficient time to prepare for the hearing. According to Alford, the Review Committee gave him only five minutes to meet with the paralegal. Thereafter, Alford submitted fifteen exhibits, a four-page written statement prepared by him, and a two-page written statement prepared by the paralegal. In its written decision, the Review Committee summarized the arguments expressed in both statements, yet assigned Alford to MCU, stating:
Since being committed to the care and custody of the [DOC], inmate Alford continues to display an unwilling attitude to follow the rules, orders, and regulations of any [DOC] facility. Inmate Alford has been found guilty of thirty[-]three [] infractions since his incarceration. Inmate Alford was also found to be the author of a letter detailing the armed take[-]over of four correctional facilities in New Jersey. Reports further provide [that] inmate Alford has admitted to influencing custody staff to assist with Security Threat Group activities within the facility by trafficking/smuggling cellular phones and other contraband into the institution. According to investigative reports, as a result of inmate Alford[']s ability to engage in unduly familiar relationship[s] with custody staff resulting in unlawful behavior and the compromising of safety and security also supports the propensity[,] if presented the opportunity, to further influence staff to engage in such behavior. Also, although inmate Alford[']s last disciplinary infraction occurred five years ago, he has been confined to Administrative Segregation and the circumstances have not mitigated.
In conclusion, the [Review Committee] must take into consideration if an alternate housing location, custody status, or the possibility of transferring [Alford] to another facility would alleviate the need for MCU placement. The committee has evaluated the options available to include transfer to an out of state facility. In accordance with [N.J.A.C.] 10A:5-2.5, and [] inmate[] [Alford's] past history and the seriousness of the infractions committed, it is the decision of this committee that a highly secure and structured environment such as the [MCU] would best serve the Administration and the inmate population to
maintain the safe orderly operations of a [DOC] facility.
On July 12, 2013, Alford administratively appealed the Review Committee's decision arguing, in part, that he was denied proper assistance of substitute counsel, as required by N.J.A.C. 10A:6-2.12 and N.J.A.C. 10A:6-2.14, because he was "unprepared, un-organized and [unable] to properly defend" himself as he was given only five minutes before the hearing began to meet with the paralegal. Alford also alleged that the evidence considered by the Review Committee at the hearing, including the alleged disciplinary infractions contained in his criteria sheet, was "false and vague" and thus, he should be afforded a re-hearing.
On August 2, 2013, the Associate Administrator rejected Alford's arguments and upheld the decision of the Review Committee to place him in MCU. The Associate Administrator explained:
The record reflects [Alford's] allegations of not being prepared due to not being able to speak with a paralegal until the hearing itself. However, a review of the record shows [Alford] provided [sixteen] documents for admittance into the record[,] not including a [four-]page . . . statement [written] by [Alford,] as well as a [two-]page written statement prepared by . . . the paralegal. [The paralegal's] statement details [Alford's] history which could not be know[n] to him without speaking with [Alford]. Furthermore[,] [Alford] w[as] given time by the [Review Committee] to speak with the paralegal before the
proceeding continued. No objection was noted after allowing [Alford] to speak with the paralegal. [Alford] offered voluntary statements and documents to the committee. [Alford's] statements of being [] "unprepared, un-organized, and unable to properly defend [him]self" are unfounded.
Moreover, with respect to Alford's argument concerning the infractions listed on his criteria sheet, the Associate Administrator found:
The materials provided by the [Review Committee] are facts surrounding [Alford's] incarceration history that are used to consider if proper placement into the [MCU] is warranted. These items are gathered from [Alford's] classification folder as well as reports from the Special Investigations Division[,] [(SID)]. While [Alford sets forth his] opinion on the facts of [his] criteria sheet, these items are substantiated through disciplinary hearings, investigations, video tape, etc.For those reasons, the Associate Administrator concluded:
[T]he decision of the [Review Committee] is in compliance with [N.J.A.C.] 10A:5-2.6 and are based on substantial credible evidence provided to them. [Alford's] release to [the] general population at this time would pose a threat to the security and orderly running of the institution. I am satisfied that housing in the [MCU] is in the best interest of the [DOC], the staff, and the inmate population. There is no alternative housing or program which would be more beneficial for [Alford] or the department given the facts of [Alford's] incarceration. In conclusion[,] [Alford's] appeal for [his] MCU initial placement is denied and [Alford is] to remain housed in the [MCU].
Thereafter, on November 26, 2014, the DOC filed a motion with this court for a remand to determine if Alford was entitled under N.J.A.C. 10A:5-2.6(t) to a summary of confidential information provided to the Review Committee. On December 29, 2014, the motion was granted and the DOC was ordered to complete the proceedings on remand within sixty days and notify the court when the proceedings have been completed and a new decision has been issued. The DOC complied, advising this court on February 25, 2015, that Alford was not entitled to the summary of confidential information because the information was not provided by a confidential informant, as required by the N.J.A.C. 10A:5-2.6(t), but by the SID. Therefore, the DOC agreed with the Assistant Administrator's final decision issued on August 2, 2013, to keep Alford in the MCU.
Alford appealed pro se, raising the following points on appeal:
POINT [I]
APPELLANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS WAS VIOLATED, CREATING A LIBERTY INTEREST[,] WHEN[] RESPONDENT[] WITHOUT AFFORDING APPELLANT A HEARING, PLACED HIM WITHIN THE CONFINEMENTS OF A STEEL[-]CAGED CELL, BYPASSING THEIR OWN POLICIES AND INVENTING A NEWLY SUPER-MAX STATUS OUTSIDE OF ANY STANDARD OPERATING PROCEDURE TO SUPPORT IT.
POINT [II]
APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED, CREATING A LIBERTY INTEREST[,] WHEN RESPONDENT[] REFUSED TO CONSIDER EVIDENCE THAT WAS SUBMITTED BY APPELLANT TO DISPUTE RESPONDENT[']S REQUEST FOR [MCU] PLACEMENT.
POINT [III]
APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED, CREATING A LIBERTY INTEREST[,] WHEN[] RESPONDENT[] WAITED MORE THAN FIVE YEARS TO USE ALLEGED ACTS SUPPOSEDLY COMMITTED BY APPELLANT AND USING PREVIOUS[LY] RELIED UPON EVIDENCE TO PLACE HIM WITHIN THE [MCU] CONTRARY TO [N.J.A.C.] 10A:5-2.4.
POINT [IV]
APPELLANT'S RIGHT TO DUE PROCESS WAS VIOLATED, CREATING A LIBERTY INTEREST, WHEN RESPONDENT[] REFUSED APPELLANT A CONCISE SUMMARY OF CONFIDENTIAL INFORMATION USED TO PLACE HIM WITHIN THE [MCU] VIOLATING [N.J.A.C.] 10A:5-2.6(J). RESPONDENT[']S REFUSAL TO ALLOW APPELLANT APPROPRIATE TIME TO PREPARE HIS DEFENSE WITH THE ASSISTANCE OF A PARALEGAL [IS A] VIOLATI[ON] [OF] [N.J.A.C.] 10A:5-2.6(C).
II.
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)). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citation omitted). Substantial evidence needed to sustain guilt of an infraction is "such evidence [that] 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 Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).
We are obligated to give deference to credibility determinations made by the fact finder. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); Doering v. Bd. of Review, 203 N.J. Super. 241, 245 (App. Div. 1985). However, we do not "rubber stamp" its decisions. In re Taylor, 158 N.J. 644, 657 (1999) (quoting Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)). Moreover, 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 v. Pinchak, 139 N.J. 188, 194-95 (1995). 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. Classification of state prisoners is confined to the Commissioner's sole discretion. N.J.S.A. 30:1B-6, -9; N.J.S.A. 30:4-91.1 to -91.3, -92. "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).
Notably, the United States Constitution and our Constitution do not recognize an inmate's right to a less restrictive custody status. Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001). Thus, inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Ibid. As we further observed:
[U]nder State law, the Commissioner of the [DOC] 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 [DOC]. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1.Accordingly, the Commissioner of the DOC has considerable discretion in determining the custody status of inmates. Id. at 29. Further "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id. at 30 (citing N.J.A.C. 10A:9-4.2).
[Id. at 29-30.]
Applying these principles, we discern no reason to disturb the DOC's decision. Alford's appeal pertains to his placement in MCU; thus, the DOC did not violate his liberty interest or due process rights in limiting his confinement. The record reflects that the agency properly considered his extensive disciplinary history and all the evidence Alford submitted in opposition to the placement. Moreover, there are no restrictions in the administrative code on placing Alford in MCU years after he was transferred and placed in general population at another correctional institution. Therefore, our review of the record convinces us that the DOC's decision was supported by substantial evidence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION