ANTHONY BOONE 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NOT FOR PUBLICATION WITHOUT THE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-0585-08T3

ANTHONY BOONE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

September 11, 2009

S

July 1, 2011

Resubmitted June 1, 2011 - Decided

Before Judges Payne and Waugh.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Anthony Boone, appellant, pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Melissa H. Raksa,

Assistant Attorney General, of counsel,

Susan M. Scott, Deputy Attorney General,

on the brief).

PER CURIAM

In an appeal from a final administrative determination by the Department of Corrections (DOC), appellant Anthony Boone challenged his transfer, on September 25, 2007, from New Jersey State Prison to East Jersey State Prison, as well as a determination on December 10, 2008 by the Institutional Classification Committee that he remain in medium custody and that he be assigned to "any housing."

We issued a decision in the matter on September 11, 2009. In that decision, we concluded that the discretionary transfer of Boone to East Jersey State Prison did not infringe on any protected liberty interest. State v. Boone, No. A-0585-08T3 (App. Div. September 11, 2009) (slip op. at 4). We also found no evidence that the Classification Committee abused its discretion when it continued Boone's custody status at the medium level. Id. at 5.

However, we noted that Boone's principal argument concerned his assignment to "any housing" including a dormitory setting. Ibid. Although we rejected Boone's argument that the rules adopted at East Jersey State Prison governing housing were invalid, because they were not promulgated pursuant to the procedures set forth in the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, ibid., we discerned what appeared to be an inconsistency between the rules and procedures implemented by the Prison. We stated:

The Dorm Classification Chart supplied by the State indicates that "[i]nmates serving sentences in EXCESS OF 10 YEARS cannot be classified to an 'ANY HOUSING STATUS OR DORM' unless they are minimum eligible and meet the requirements for full minimum." Boone, who is serving a sentence in excess of ten years has not met the requirements for full minimum status. Hence, the chart suggests that he is ineligible for "any housing" status. It is also possible that Boone fits within the "no dorm" status of ND-15, which is listed variously as "excessive length of sentence (cannot lock near wall)" and "15 yr mm" descriptions that are unclear to us and have not been discussed by the State.

[Id. at 6.]

We also noted that we could not reconcile the provisions that we have quoted with a certification given by Assistant Prison Superintendent Steven Johnson, which stated that "Boone was also assigned to 'Any Housing" status, which is given to any inmate at East Jersey State Prison who has completed fifty percent of their mandatory-minimum sentence." Id. at 7. Accordingly, we remanded the matter for further briefing on the apparent rules conflict, as well as a specification of Boone's present housing and the likelihood he would in the future be housed in a multiple-bunk cell or dormitory during the remainder of his prison term. Jurisdiction was retained. On November 25, 2009, the DOC filed a motion for a complete remand, which was granted on January 8, 2010.

On remand, it was determined that an outdated policy had been mistakenly provided to us by the DOC in support of its opposition to Boone's appeal. On February 3, 2010, a further review of Boone's housing classification was completed by the Institutional Classification Committee utilizing then-current standards. At that time it was determined, in accordance with those standards, that Boone was properly assigned to "any housing" status because he had completed the majority of his eighteen-year mandatory minimum sentence and he was eligible for reduced custody.

At the time that Boone initially filed his appeal, he was housed in a single-man cell. Thereafter, in or around December 2009, he was assigned to a two-man cell, which assignment remains in force. Boone, who remains in custody, has not complained about that assignment, and he has not submitted a request for reassignment to a single-man cell. Further, he has not filed any response to the State's brief on remand or otherwise sought to participate in the remand proceedings. Accordingly, being satisfied that the classification procedures utilized in this matter accord with applicable policies and that Boone has not been deprived of his constitutional rights in that regard, we affirm the determination of the Institutional Classification Committee to assign Boone to "any housing."