QUDDOOS FARRA'D 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NOT FOR PUBLICATION WITHOUT THE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-5320-07T15320-07T1

QUDDOOS FARRA'D,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted: September 14, 2009 - Decided:

Before Judges Baxter and Fall.

On appeal from the New Jersey Department of

Corrections.

Quddoos Farra'd, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Quddoos Farra'd, an East Jersey State Prison inmate, appeals from final administrative decisions issued by respondent Department of Corrections on May 12, 2008 and on January 29, 2009, denying his claim for property damage. We reverse, and remand for payment of appellant's claim. The following factual and procedural history informs our decision.

In November 2007 appellant was an inmate at South Woods State Prison. Appellant was charged with committing certain prohibited acts, N.J.A.C. 10A:4-4.1, as the result of an incident occurring on or about November 15, 2007, and he was placed in administrative segregation or detention pending adjudication of the charges. At the time those charges were filed against him, appellant was the owner and in possession of a certain Brother Word Processor in his cell that was in proper working condition. On November 30, 2007, appellant was found to have committed the charged prohibited acts and he received a sanction of fifteen days of detention; one-hundred-and-eighty days administrative segregation; and one-hundred-and-eighty days loss of commutation time.

On December 7, 2007, appellant was transferred to New Jersey State Prison, and then to East Jersey State Prison on December 13, 2007. Following his transfer, personnel at South Woods State Prison packaged appellant's word processor, and arranged for it to be shipped to appellant at East Jersey State Prison by the Central Transportation Unit of the Department of Corrections. The word processor was delivered to appellant at his cell by East Jersey State Prison personnel on January 8, 2008. When appellant attempted to use the word processor that day, it failed to operate as the "type/print mechanism just started knocking like a wheel."

On that same day January 8, 2008 appellant filed an "Inmate Claim for Lost, Damaged or Destroyed Personal Property" on Form 943-I with the Administrator of East Jersey State Prison against South Woods State Prison for damage to his word processor. N.J.A.C. 10A:2-6.1, entitled "Filing a claim at a correctional facility or satellite unit," provides in pertinent part:

(a) When an inmate claims the loss, damage or destruction of personal property, . . . the inmate shall complete and submit Form 943-I Inmate Claim For Lost, Damaged Or Destroyed Personal Property to the Administrator or designee.

(b) The Administrator or designee shall submit Form 943-I to the Director of Custody Operations or designee for investigation and preparation of a report. The investigation conducted by the Director of Custody Operations or designee shall consist of, but not be limited to:

1. Obtaining statements from the inmate, witnesses and correctional facility staff; and

2. Verifying that the inmate was authorized to have and did in fact, possess the personal property named in the claim.

3. Verification of possession of lost, damaged or destroyed personal property may be made by review of applicable documentation such as the IIS-IM Inmate Inventory Sheet maintained by the correctional facility (see N.J.A.C. 10A:1-11).

(c) Upon completion of the investigation, Form 943-I and a copy of the investigative report shall be submitted to the Business Manager of the correctional facility for review.

(d) The Business Manager shall review Form 943-I and the Custody Operations investigative report, and complete Form 943-II Certification of Inmate Claim indicating a recommendation to approve or deny the claim with substantiating reasons.

(e) The claim packet shall include Forms 943-I and 943-II and the Custody Operations investigative report. The claim packet shall be submitted by the Business Manager to the Administrator for review and recommendation for approval or denial.

(f) Claims that are denied by the Administrator shall not be processed any further. In all cases of denial, the inmate shall be notified of the denial in writing by the Administrator with substantiating reasons.

By inter-office correspondence dated January 15, 2008, appellant was notified by East Jersey State Prison Administrator T.M. Power that his claim form had been received and "is pending the results of an investigation." Appellant supplemented his claim with a certification (misnamed as an "affidavit") of South Woods State Prison inmate A. Curcione, inmate number 411218, dated January 21, 2008, that stated, inter alia, "that the word processor was in working order prior to Inmate Farra'd being locked up in detention in 2007." Appellant also submitted an estimate from Karl Business Machines Co. Inc. dated January 31, 2008, that reflected repair of the print wheel latch assembly on appellant's word processor would cost $161.55. Finally, by certification directed to the Claims Committee at East Jersey State Prison dated February 6, 2008, East Jersey State Prison inmate Arlington King, inmate number 245589 and appellant's cellmate, stated, inter alia, that after the word processor was brought into their cell on January 8, 2008, appellant "plugged it in, it came on and started making a knocking noise and would not type." These certifications and the repair estimate were forwarded by appellant to the East Jersey State Prison's Claims Committee as attachments to Part 1 of an Inmate Remedy System Form, Form IRSF 101, dated February 13, 2008.

Inter-office correspondence dated February 11, 2008, from Lieutenant R. Hampe of East Jersey State Prison to that prison's Executive Assistant Steve Johnson, advised that since the word processor had been received damaged, "this claim should be referred to [South Woods State Prison] and [Central Transportation Unit] for further investigation." It was also noted that appellant had been sent a repair request form "to get an estimate of repair for the word processor."

On Part 2 of the same Form IRSF 101 that appellant had submitted to the Claims Committee on February 13, 2008, Lieutenant Hampe replied to appellant on March 3, 2008, stating that his claim had been forwarded to South Woods State Prison for investigation, and that

[a]ny additional information you have regarding this claim must be forwarded there. It would be your responsibility to forward this information there since it was not included with your original claim. Write to: Ms. Karen Balicki, Administrator South Woods State Prison/215 South Burlington Road/Bridgeton, NJ 08302.

By memorandum dated April 8, 2008, East Jersey State Prison Administrator Power forwarded appellant's property claim to the Central Transportation Unit of the Department of Corrections stating the claim had "been investigated by a member of [his] staff and it has been determined that the loss occurred during transport." Captain Robert L. Flowers of the Central Transportation Unit replied to Administrator Power by memorandum dated May 2, 2008, stating:

I have reviewed with property staff members Mr. Ruiz the Central Transportation property receipt and movement paperwork that relates to the above inmate and his claim. My investigation revealed no sign of negligence on the part of Central Transportation or its staff. As you are aware, all property boxes are packed and sealed by the sending institution prior to Central Transportation's arrival. Central Transportation makes every effort to ensure safe, damage-free transport of all property.

On May 12, 2008, Administrator Power issued a "Disposition of Inmate Claim" directed to appellant, denying his property damage claim and providing the following reasons:

1. The investigation proved that youR claim is invalid, because the word processor was packed intact with no noticeable damage from Central Transportation Unit pick-up and delivery.

Therefore, in accordance with N.J.S.A. 10A:2-6.3(a)2-5, and 8, I recommend that this claim is DENIED.

It does not appear that the procedures set forth in N.J.A.C. 10A:2-6.1(d) and -6.1(e) were strictly followed by prison personnel with respect to the completion of Form 943-II. Nevertheless, the prison administrator did issue a decision on appellant's claim setting forth substantiating reasons for its denial.

N.J.A.C.. 10A:2-6.2, entitled "Decision making factors for approving or denying a claim," provides:

(a) The following factors shall be considered before recommending approval or disapproval of claims:

1. Whether the investigation revealed any neglect by the correctional facility;

2. Whether care was exercised by facility staff preventing property loss, damage or destruction;

3. Whether the inmate exercised care in preventing property loss, damage or destruction;

4. Whether it has been proven that the inmate was authorized to have and did, in fact, possess the item(s) named in the claim;

5. Whether sufficient information has been supplied by the inmate, including proper receipts, witnesses and investigative reports;

6. Whether the inmate submitted the claim in a timely manner;

7. Whether the loss or damage exceeds authorized amounts of correctional facility personal property limits;

8. Whether the personal property is considered contraband; and

9. Whether other reviewers recommended denial of the claim and the reasons therefor.

Meanwhile, by letter to South Woods State Prison Administrator Karen Balicki dated May 12, 2008, appellant forwarded information pertaining to his property damage claim, noting he had been informed by East Jersey State Prison personnel that his claim had been sent to South Woods State Prison, and indicating he had previously forwarded information concerning his claim to South Woods State Prison, asking to excuse his "neglect in not placing the repair cost estimate in [his] last certified letter."

Following his receipt of the May 12, 2008 claim denial, appellant requested reconsideration of that decision by letter to Administrator Power dated May 31, 2008, enclosing copies of all documents relevant to his claim, and stated, "I submit this to you, because they were mailed to South Woods State Prison and I am not sure if they all were used in the determination of disposition of inmate claim."

In the interim, South Woods State Prison Administrator Balicki issued a memorandum to appellant dated May 30, 2008, stating:

We are in receipt of correspondence from you regarding a claim for a broken word processor. While the paperwork you forwarded indicates your claim was forwarded to [South Woods State Prison] for investigation, we have no record of ever receiving it. An investigation cannot begin without a property claim signed and filled our properly by the inmate. Once this is received, the claim can be investigated following guidelines for property claim submittals.

On July 7, 2008, appellant filed a notice of appeal with this court from the May 12, 2008 final administrative decision issued by East Jersey State Prison Administrator Power.

On July 16, 2008, appellant completed Part 1 of an Inmate Remedy System Form IRSF 101, directed to Administrator Power, complaining that he had received no answer to his request for reconsideration. In reply to that complaint and to appellant's reconsideration request, Lieutenant Hampe, on Part 2 of that same IRSF 101 Form, stated:

Claim #08-01-005 claims you received your word processor from [South Woods State Prison] on 1/8/08 and it was damaged. This was after your transfer from [South Woods State Prison] to [New Jersey State Prison] on 12/7/07 and [New Jersey State Prison] to [East Jersey State Prison] also on 12/13/07. You were previously instructed to correspond with Ms. Karen Balicki, Administrator of [South Woods State Prison] to inquire on the status of your claim since it was forwarded there for investigation. Since your word processor was received damaged from [South Woods State Prison] on 1/8/08, there is no liability on the part of [East Jersey State Prison] regarding this.

By order entered on August 20, 2008, we granted appellant's application to proceed as an indigent, but denied his motion for summary disposition. By order issued on December 5, 2008, we granted the motion of respondent for a temporary remand to permit further review of appellant's claim.

On remand, South Woods State Prison Administrator Balicki issued a memorandum to Lieutenant Coslop dated December 19, 2008, directing that appellant's claim be investigated. On December 31, 2008, Lieutenant Chard, the Claims Coordinator of South Woods State Prison, issued an "Inmate Claim Acknowledgment Form" to appellant requesting: (1) proof of purchase/ownership of the word processor to include the date of original purchase; (2) any inventory slips associated with the word processor between January 1, 2007 and May 2008; and (3) pay statements verifying that the money for repair of the word processor was taken out of his account.

In an inter-office memorandum from Lieutenant Chard to Administrator Balicki dated January 27, 2009, he advised that appellant's claim did not fit the criteria for a claim submission in that:

1. Inmate personal property consists of items owned by an inmate that have been approved for retention in his or her possession while incarcerated in a Correctional Facility (10A:2-6[.2]).

2. While incarcerated within a correctional facility, the inmate shall be responsible for his own personal property and shall keep personal property at his or her own risk.

3. You have failed to demonstrate that this institution was negligent in the handling or storage of property.

In that January 27, 2009 inter-office memorandum, Lieutenant Chard went on to explain his conclusions, as follows:

[Appellant] never claimed that his Word Processor (WP) was damaged at [South Woods State Prison]. When he claimed to have received the WP at [East Jersey State Prison], as per the package authored by [appellant] supplied for this investigation, there was not any visible damage noted by him to the WP. He claims that only after he plugged the WP in that he realized an internal component was broken. This could indicate normal wear and tear to the internal moving parts.

Per the supplied [certification] of I/M Curcione . . . he states that he had [appellant] complete some work for him as a paralegal but did not witness him actually using the WP to do this. The only one who claims the WP was operational at [South Woods State Prison] is [appellant]. Any paralegal work would/could easily have been completed in the law library.

Once again, no claim was ever made the WP was ever damaged at [South Woods State Prison]. As per the supplied package, his property was sent to [New Jersey State Prison] and then to [East Jersey State Prison] where he claims that his property was held in storage and then given to him in three separate increments from Jan 2008 to Feb 2008. As per my findings his property, all seven boxes, was sent out from [South Woods State Prison] in one shipment.

Lieutenant Chard also stated that he had received no response from appellant to the "Inmate Claim Acknowledgement Form" dated December 31, 2008. He explained that he had requested the proof of ownership and purchase information to determine the age of the word processor on the issue of whether the failure of the machine to work might be due to normal wear and tear, and that he had requested the inventory slips associated with the transfer of appellant's property to determine whether any noticeable damage to the word processor had been noted by the mailroom. Lieutenant Chard noted that he had contacted the investigating staff at East Jersey State Prison to secure any evidence or documentation concerning appellant's claim, with negative results. In conclusion, Lieutenant Chard recommended that Administrator Balicki deny appellant's claim. Again, although the record contains no Form 943-II as required by N.J.A.C. 10A:2-6.1(d) and -6.1(e), Lieutenant Chard's January 27, 2009 inter-office memorandum to Administrator Balicki sufficiently sets forth his analysis and rationale for recommending denial of appellant's claim.

On January 29, 2009, South Woods Prison Administrator Balicki issued a memorandum to appellant denying his property claim, stating:

Your claim for a damaged word processor has been investigated and it has been determined that your claim does not fit the criteria for a claim submission. A detailed explanation of why your claim is being denied is outlined below.

You never actually claimed the word processor was damaged at [South Woods State Prison]. You claim that only after you received your word processor at [East Jersey State Prison] and plugged it in, you realized an internal component was broken which would indicate normal wear and tear to the internal moving parts.

On 12/31/08, the [South Woods State Prison] Claims Coordinator requested additional information from you, specifically proof of ownership and the age of the machine, also inventory slips associated with the transfer of your property. You failed to comply with this request. He also contacted [East Jersey State Prison] investigating staff in an attempt to secure any evidence or documentation concerning the claim with negative results.

Due to the fact that no claim or accusation was made by you against [South Woods State Prison], your neglecting to supply necessary supporting documentation and the fact that there is absolutely no evidence to even insinuate that [South Woods State Prison] was in anyway negligent in the handling of your property, your claim is denied.

On appeal, appellant presents the following arguments for our consideration:

POINT I

RESPONDENT FAILED TO FOLLOW PROCEDURE IN DETERMINING CLAIM DENYING DUE PROCESS.

POINT II

RESPONDENT MISDIRECTED CLAIM TO SOUTH WOODS STATE PRISON AND DENIED DUE PROCESS.

POINT III

DENIAL OF CLAIM WAS AGAINST THE WEIGHT OF THE EVIDENCE.

Appellant's brief was filed prior to the remand proceedings and only addressed the May 12, 2008 final administrative decision issued by East Jersey State Prison Administrator Power. However, we do not need supplemental briefing by appellant addressing the January 29, 2009 final administrative decision issued by South Woods State Prison Administrator Balicki in order to complete a meaningful review of both decisions.

We must, however, conduct that review in light of the applicable standard governing our review of final administrative decisions. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is also not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will reverse only where an agency's decision is arbitrary, capricious, or unsupported by credible evidence in the record. Id. at 579.

The essence of the procedures set forth in N.J.A.C. 10A:2-6.1 governing the handling of personal property damage claims filed by prison inmates is that the institution conduct a thorough investigation; that the factors enumerated in N.J.A.C. 10A:2-6.2 be considered when recommending approval or denial of such a claim; and that "substantiating reasons" in writing accompany the denial of a claim. See N.J.A.C. 10A:2-6.1(f).

Here, the May 12, 2008 final administrative decision issued by East Jersey State Prison Administrator Power denied appellant's claim on the basis that "the word processor was packed intact with no noticeable damage from Central Transportation Unit pick-up and delivery." The essence of the January 29, 2009 final administrative decision issued by South Woods State Prison Administrator Balicki is that there was no evidence "to even insinuate" that South Woods State Prison was negligent in its handling of appellant's property.

We conclude from the record on appeal that prior to his word processor being delivered to him by East Jersey State Prison personnel on January 8, 2008, appellant last had possession and control of it in his cell prior to being placed in administrative segregation or detention on November 15, 2007, in connection with the disciplinary action taken against him while at South Woods State Prison. Thus, between November 15, 2007 and January 8, 2008, the word processor was in the possession and control of South Woods State Prison personnel; was then packed by them for shipping; was then in possession of the Central Transportation Unit; and was thereafter in possession of East Jersey State Prison personnel. All of these entities are subdivisions or units of respondent, New Jersey Department of Corrections. The investigation conducted by each such entity concludes there is no evidence of any incident occurring while the word processor was in its control and possession that could account for its damage.

Nevertheless, the only reasonable conclusion supported by the credible evidence in the record is that the word processor was in proper working condition prior to it coming into the sole possession and control of Department of Corrections personnel, and that when it was returned to appellant it was no longer operational.

At common law, it is ordinarily a claimant's burden to establish a defendant's negligence when seeking to recover damages. See Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139 (1951). However, it has long been recognized that there is a place in our system of justice for application of the res ipsa loquitur doctrine. See Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269-70 (1958). This doctrine, "which can be translated from Latin as the maxim `the thing speaks for itself,'" permits an inference of negligence in certain circumstances, under which negligence, and thereby responsibility, can be established by circumstantial evidence. Khan v. Singh, 200 N.J. 82, 91 (2009).

The three predicates for application of the doctrine of res ipsa loquitur are that (1) the occurrence ordinarily bespeaks of negligence; (2) the instrumentality was within the exclusive control of the defendant; and (3) there is no indication in the circumstances that the injury was the result of the claimant's own voluntary act or neglect. Ibid.; Bornstein, supra, 26 N.J. at 269. When these elements are present, a permissive presumption is created that furnishes reasonable grounds for the conclusion that if due care had been exercised by the entity having exclusive control of the instrumentality, the damage would not have occurred. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 398 (2005).

Here, since the record establishes that the word processor was working properly before appellant lost control and possession of it, in these circumstances, its failure to operate on the next attempt ordinarily bespeaks of negligence in its handling, packaging, transportation, storage or delivery at some point between November 15, 2007 and January 8, 2008. During that time period, the word processor was solely and exclusively in the possession and control of Department of Corrections personnel, and there is no indication that the damage to the word processor was the result of claimant's own voluntary act or neglect. Thus, the doctrine of res ipsa loquitur is properly applied in these circumstances, placing the burden on respondent to provide explanatory or exonerating evidence. NOPCO Chemical Div. v. BLAW-Knox Co., 59 N.J. 274, 283 (1971). Whether the damage to the word processor occurred while in the possession and control of South Woods State Prison, the Central Transportation Unit, New Jersey State Prison or East Jersey State Prison is irrelevant, as all are units or subdivisions of the Department of Corrections.

We are mindful that the record on appeal discloses that appellant did not respond to the December 31, 2008 request by Lieutenant Chard for proof of purchase and ownership; inventory slips; and pay statements verifying that the money for payment of the repair was taken from his account. However, the latter two requests were for records that are maintained by the Department of Corrections and could have easily and reasonably been obtained during its regulation-required investigation. Moreover, the word processor could have easily been inspected at any time by Department of Corrections personnel during its investigation as it was and is located within one of its facilities; the possibility advanced by Lieutenant Chard that the malfunctioning of the word processor could be due to wear and tear was mere conjecture. In these circumstances, we do not view the failure of appellant to respond to Lieutenant Chard's request as fatal to the validity of his claim.

Accordingly, in these circumstances, we conclude that the final administrative decisions issued by East Jersey State Prison and South Woods State Prison are arbitrary and capricious and are not supported by credible evidence in the record.

 
Reversed and remanded for the processing and payment of appellant's claim for personal property damage in the amount of $161.55.

Apparently, after discovering the malfunction, appellant had shipped the word processor to Karl Business Machines for inspection and a repair estimate.

The proper reference is N.J.A.C. 10A:2-6.2(a).

We note that following completion of the remand proceedings by issuance of the January 29, 2009 final administrative decision, appellant corresponded to the clerk of this court inquiring whether he would be required to file another notice of appeal "and restart the process of this appeal over again." There is nothing in the record indicating a reply was sent to that letter. However, the record submitted is sufficient for us to conduct appellate review of both the May 12, 2008 and January 29, 2009 final administrative decisions in this opinion, and we discern no basis for requesting additional briefing by appellant specifically addressing the January 29, 2009 final administrative decision.

The record is not clear as to whether there was also a short period of time when the word processor was being held by New Jersey State Prison personnel.

(continued)

(continued)

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A-5320-07T1

October 22, 2009