JOSE DELGADO v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1724-05T51724-05T5

JOSE DELGADO,

Plaintiff-Appellant

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Defendant-Respondent.

_______________________________________

 

Submitted July 31, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from a Final Decision of the Department of Corrections.

Jose Delgado, appellant pro se.

Zulima V. Farber, Attorney General,

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Lisa A.

Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

On November 9, 2005, we granted Jose Delgado, an inmate who is currently incarcerated at South Woods State Prison in Bridgeton, leave to appeal as within time from the Department of Corrections' (Department) calculation of pay owed to him for work performed in 2003. On April 3, 2006, the Department moved for summary disposition of the appeal. The Department advised that as a consequence of Delgado's appeal, it reviewed Delgado's records and determined that he was entitled to additional pay: $96.00 for June 1 to June 30, 2003, and $99.20 for October 1 to October 31, 2003. The Department submitted records for Delgado's trust account that show that the amount the Department deemed owing was credited to his account on February 6, 2006. On May 1, 2006, Delagdo filed a brief in opposition to the Department's motion. He contended that the Department had failed to credit his account for March and April of 2003, a time when he was unable to work due to surgery. Delgado submitted a "Test Form" from Northern State Prison, where he was incarcerated in 2003. That form states that he was placed on "No Work-No Rec" status from March 17, 2003 to March 25, 2003. He also filed a "Health Request Form" dated April 8, 2003, indicating that he needed a medical lay-in signed.

By order dated May 30 and filed on June 1, 2006, we denied the Department's motion for summary disposition and afforded the parties an opportunity to submit additional materials on or before June 20, 2006. On June 20, 2006, the Department filed a supplemental letter brief. The Department argued that Delgado was not entitled to pay for the period in which he was unable to work due to surgery.

Pursuant to N.J.S.A. 30:4-92 and N.J.A.C. 10A:9-5.1(b)(1), an inmate is entitled to work "consistent with [his or her] health, strength and mental capacity and shall receive such compensation therefor . . . ." Compensation may be in the form of pay or credit against the inmate's sentence. N.J.A.C. 10A:9-5.1(b)(2). Pursuant to N.J.A.C. 10A:9-5.2(e), compensation is not applied in cases when an inmate does not work because of medical lay-in unless the injury is work-related.

Delgado has failed to produce any evidence indicating that his surgery and resultant temporary inability to work was a consequence of a work-related injury. He simply asserts that his medical records would show that he did not have the problem with his back that required surgery at the time of his incarceration.

As the Department argues, Delgado's reliance on Rowe v. Fauver, 533 F. Supp. 1239 (D.N.J. 1982), is misplaced. In Rowe, the court held that the Department's regulation distinguishing between inmates who were unable to work as a consequence of a work-related injury and inmates who were unable to work for other medical reasons was not unreasonable. Id. at 1247; see also Van Winkle v. New Jersey Dep't of Corr., 370 N.J. Super. 40, 48 (App. Div. 2004) (discussing Rowe and contrasting its approval of a distinction between inmates injured on a prison job and those who are ill with a distinction based upon the state in which an inmate serves a concurrent sentence).

Because Delgado has failed to demonstrate that the Department's decision is arbitrary or inconsistent with its regulation, we affirm. See In re Musick, 143 N.J. 206, 216 (1996).

 

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A-1724-05T5

August 14, 2006