Opinion
DOCKET NO. A-3289-14T4
02-01-2016
CARMELO ORTIZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Carmelo Ortiz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from the New Jersey Department of Corrections. Carmelo Ortiz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Adam Robert Gibbons, Deputy Attorney General, on the brief). PER CURIAM
Carmello Ortiz, an inmate of Northern State Prison, appeals from the August 7, 2015 final agency decision of the Department of Corrections (DOC), continuing his placement on gang minimum status. Following our review of the record and applicable law, we affirm.
Ortiz is serving a term of thirty years for murder. In 2013, while he was incarcerated at East Jersey State Prison, Ortiz was classified as "gang minimum." Inmates classified as that status "may be assigned to activities or jobs which routinely require them to move outside the security perimeter of the correctional facility, but on the grounds of the facility and under continuous supervision of a custody staff member, civilian instructor or other employee authorized to supervise inmates." N.J.A.C. 10A:9-4.3(d). After Ortiz's transfer to Northern State, this classification was continued.
In July 2014, Ortiz submitted a request for reduced custody status. After being denied based upon lack of eligibility due to his murder conviction and the applicable timeframe for application (one year prior to "max date"), Ortiz filed this appeal. Following appellate motion practice, we granted a motion for remand.
Upon remand, the Classification Committee (Committee) reviewed Ortiz's application and recommended him for reduced custody. Notwithstanding the Committee's recommendation, the Administrator, acting in his capacity as final arbiter, denied the application based upon the proximity of the community where the crime occurred and the risk of Ortiz's potential contact with victims. Since Ortiz would be eligible for community access through a job assignment if given a reduced custody status, the Administrator concluded in his final decision that the interests of the public were better served by maintaining Ortiz's gang minimum status. After the denial, Ortiz filed an amended notice of appeal.
Ortiz raises the following points.
[POINT I]
THE DECISION OF THE ADMINISTRATOR TO DENY THE APPELLANT FM STATUS WAS [ARBITRARY] AND CAPRICIOUS, FUNDAMENTALLY UNFAIR AND UNREASONABLE, INCONSISTENT WITH THE STATUTORY MISSION OF THE DOC, AND NOT SUPPORTED BY THE RECORD.
[POINT II]
THE PRACTICE OF APPLYING A RULE NOT PROMULGATED THROUGH PROPER CHANNELS (THE ADMINISTRATIVE PROCEDURE ACT) TO DENY AN INMATE FULL MINIMUM STATUS VIOLATES DUE PROCESS.
Our review of agency action is limited. "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 our 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)). We have noted that 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). 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.
[Id. at 29-30 (citations and quotations omitted).]
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 and transfer 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).]
The Commissioner of the DOC has considerable discretion in determining the custody status of inmates. Smith, supra, 346 N.J. Super. at 29-30. Moreover, "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). Although an inmate has no constitutionally protected right to a reduced custody status, we 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 v. Fauver, 108 N.J. 239 (1987).
We have considered the discretionary nature of the Administrator's decision to maintain Ortiz's status, the bases for the determination, the applicable law and our standard of review. We discern no reason to disturb the decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION