JESSE CASTILLO v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2702-05T22702-05T2

JESSE CASTILLO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted September 26, 2006 - Decided October 20, 2006

Before Judges Graves and Lihotz.

On appeal from a Final Decision of the State of New Jersey, Department of Corrections.

Jesse Castillo, appellant pro se.

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Jesse Castillo, an inmate at South Woods State Prison, appeals from a final decision of the Department of Corrections (DOC), which upheld the finding appellant committed prohibited act .701, the "unauthorized use of mail or phone." N.J.A.C. 10A:4-4.1(a). Senior Corrections Officer L. Fawcett observed appellant dial a call, speak, then hand the receiver to another inmate, Drew Camarota, who said to appellant's party, "[w]ho is the team leader?" Appellant asserts he merely handed the phone to the next inmate after completing his call to his wife. Appellant requested production of the prisoner telephone logs. These logs showed, on the day in question, appellant made several calls and Camarota made no calls.

On appeal, appellant argues the alleged violation is erroneous because handing a prisoner telephone to another inmate is not a third party call as characterized in the disciplinary report, and otherwise is not specifically defined as a prohibited act. Further, appellant asserts the sanction issued is disproportionate to the offense, making it cruel and unusual punishment. U.S. Const. amend. VIII.

After a disciplinary hearing, Hearing Officer Kathy Ireland found appellant violated the prison telephone policy, and recommended sanctions, including ten days detention, sixty days loss of commutation time (suspended if no further infractions occurred), and thirty days loss of telephone privileges. Assistant Superintendent of Corrections, James W. Finger, upheld the hearing officer's decision but modified the sanction by suspending the enforcement of the loss of telephone privileges for thirty days if no further infractions occurred.

Our scope of review is limited. We "will reverse the decision of [an] 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); accord Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005).

When entering the custody of the DOC, each inmate receives a copy of the Handbook on Discipline and is advised in writing of those acts and activities which are prohibited. N.J.A.C. 10A:4-2.1(a). Additionally, at the time of admittance, each correctional facility provides prisoners with a copy of the Inmate Handbook, containing the facility's rules and procedures. N.J.A.C. 10A:4-2.1(b).

Appellant suggests he cannot be disciplined because the prohibited use referenced by .701 refers to an inmate's use of a staff telephone, and not one inmate handing a prisoner telephone to another inmate. Although section .701 does not list each specific act encompassed by the phrase "unauthorized use of . . . phone," its scope is not limited to an inmate's prohibited use of an institutional telephone. The proscriptions of the code section incorporate the violation of any specific facility rules governing telephone usage. The rules pertaining to telephone usage outlined in the South Woods' Inmate Handbook include the permitted length and manner of inmate's calls. One provision prohibits inmates from using staff telephones. A separate provision sets forth rules for the use of prisoner authorized telephones, including the requirement that each inmate use his assigned "Inmate Personal Identification Number" (IPIN) to place a call. When appellant handed the telephone to another inmate, who then began speaking, appellant ignored the requirement to use his IPIN for only his calls, which "violated [the] telephone rules," as found by the hearing officer.

After analyzing the record, we are satisfied that the hearing officer's decision finding appellant guilty of the disciplinary offense charged was based on substantial credible evidence, which included SCO Fawcett's eyewitness testimony and the daily prisoner telephone records. We also reject appellant's argument that the sanctions imposed constituted cruel and unusual punishment as being of insufficient merit to warrant discussion in written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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4

A-2702-05T2

 

October 20, 2006