L.O v. DEPARTMENT OF HUMAN SERVICES SPECIAL TREATMENT UNIT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0163-09T20163-09T2

L.O.,

Appellant,

v.

DEPARTMENT OF HUMAN SERVICES

SPECIAL TREATMENT UNIT,

Respondent.

___________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Cuff and Waugh.

On appeal from a Final Decision of the Department of Human Services, Special Treatment Unit.

L.O., appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

Appellant L.O. appeals from the determination of the Clinical Director of the Special Treatment Unit (STU), which is jointly operated by the Department of Human Services (DHS) and the Department of Corrections (DOC), declining to afford him a due process hearing with respect to his placement in the STU's Modified Activities Program (MAP) following an altercation with another STU resident. We dismiss the appeal as moot.

I.

We glean the following facts from the record. In 1989, L.O. was convicted of crimes involving sexual assault. He was sentenced to an aggregate term of thirty-eight years imprisonment, during twelve years of which he would not be eligible for parole. His conviction was reversed. State v. [L.O.], 133 N.J. 141 (1993). He was retried and convicted on some, but not all, of the same charges. He was sentenced to incarceration for thirty years, with a twelve-year period of parole ineligibility.

Upon parole, the State moved to civilly commit L.O. under New Jersey's Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which provides for the involuntary commitment of certain persons convicted of sexual offenses who require "continued involuntary commitment." N.J.S.A. 30:4-27.32(a). L.O. was temporarily committed, pending a final commitment hearing.

Persons civilly committed under the Act are housed at the STU, which is primarily operated by DOC. N.J.S.A. 30:4-27.34(a). DHS is responsible for providing treatment to STU residents. N.J.S.A. 30:4-27.34(b). The two departments are required to "participate in an interagency oversight board to facilitate the coordination of the policies and procedures of the facility," N.J.S.A. 30:4-27.34(c), and to promulgate regulations concerning "the rights and rules of conduct applicable to a person subject to involuntary commitment as a sexually violent predator," N.J.S.A. 30:4-27.34(d). See also M.X.L. v. N.J. Dept. of Human Servs., 379 N.J. Super. 37 (App. Div. 2005).

According to L.O., the following events gave rise to his transfer to MAP. On July 19, 2009, L.O. returned to his cubicle from another section of the STU. Each cubicle holds four STU residents. Another resident, A.B., who shared the same cubicle, told L.O. to stop putting his note pads on top of A.B.'s storage container. L.O. asserts that A.B.'s container was improperly placed in his area. L.O. told A.B. that the container was in his area and should be moved back to A.B.'s area. A.B. refused and left the cubicle.

L.O. then proceeded to move the container to A.B.'s side of the cubicle. A.B. ran back to the cubicle and, according to L.O., attacked him by jumping on his back, which caused L.O. to fall forward and cut his arm on the locker. L.O. asserts that, in self-defense, he pulled A.B. off his back, grabbed him by the back of his neck and pushed his head downward. L.O. held him in that position until STU guards arrived. L.O. was taken to the infirmary for treatment and then to "detention."

As a result of what it described as "a physical argument with another resident," DHS placed L.O. on Tier MAP and in a Tier MAP treatment group so that he could, according to DHS, "therapeutically process the incident." See M.X.L., supra, 379 N.J. Super. at 45-46 (generally describing the MAP levels and restrictions). DHS advised L.O. that his therapeutic intervention would remain in place for thirty days until he had time to address the issue in treatment. See N.J.A.C. 10:36A-2.4(a).

On July 30, 2009, L.O. filed a remedy request form with Dr. Merrill Main, Clinical Director of the STU, requesting that his treatment team's decision to place him on MAP be reversed. On August 13, 2009, Main responded to L.O.'s remedy request. He stated that the MAP placement was handled in a clinically sound manner. The response noted that L.O.'s core complaint was that he believed he was unfairly placed in MAP by his treatment team after the incident with the other resident. Main noted that during the initial MAP review, DHS staff came to understand that there had been conflict escalating between L.O. and the other resident for some time and that L.O. could have brought the matter to his therapists prior to the altercation to arrange for conflict resolution. Main indicated that addressing such matters is the goal of the MAP process, and L.O. was encouraged to avail himself of the treatment being offered to him in this regard. He did, however, acknowledge that A.B. was "significantly more culpable for the eventual altercation than [L.O.]."

L.O.'s treatment team downgraded his MAP placement to Program MAP on July 31, 2009, because, according to DHS, he had begun to address some of the related issues in his MAP process group. As a result, a number of personal privileges were reinstated, and he was released back into the general population; however, his job privilege remained suspended. On August 25, 2009, L.O.'s job privileges were reinitiated.

L.O.'s notice of appeal was filed on September 10, 2009, and his merits brief was filed at the same time. The Attorney General did not file the statement of items comprising the record on appeal until February 23, 2010. Despite several extensions, the Attorney General never filed a merits brief. We chose to treat a letter brief in support of a motion for summary disposition filed a few weeks before the date on which the appeal was to be submitted as the State's merits brief.

II.

N.J.A.C. 10:36A-2.3 sets forth the rights of STU residents that are "subject to denial" in appropriate circumstances. They include "[t]he right to the least restrictive conditions within the secure facility necessary to achieve the purposes of sex offender treatment that is recommended by the treatment team and necessary to ensure the safety of the residents, staff and the general public." N.J.A.C. 10:36A-2.3(a)(3).

The rights listed in N.J.A.C. 10:36A-2.3

may be curtailed, suspended or denied in accordance with internal management procedures and policies, and pursuant to N.J.A.C. 10:36A-2.4 (10A:35-2.4) when Department of Human Services clinical staff determines that such restrictions are consistent with the therapeutic goals of the resident, or when Department of Corrections staff determines that such restrictions are necessary to protect the resident, other residents, staff, general public, or property, or to ensure the safe, secure and orderly operation of the facility, or for other good cause[.]

N.J.A.C. 10:36A-2.4 requires that the denial of rights be approved by the Clinical Director or the DOC Administrator, or their designees, and that the reason shall be provided to the resident within seventy-two hours. Although the denial may continue after the initial thirty-day period, N.J.A.C. 10:36A-2.5(a), a "written statement indicating the detailed reason(s) for the continuation of the denial of the right(s)" must be provided to the resident by the Clinical Director or DOC Administrator or their designees, N.J.A.C. 10:36A-2.5(b).

The essence of L.O.'s argument is that he was subject to "discipline" without any sort of due process. See Avant v. Clifford, 67 N.J. 496, 523-46 (1975) (outlining requirements for significant discipline in prisons); N.J.A.C. 10A:4-9.1 to -9.28 (regulations governing prison discipline).

DHS argues that L.O. was not entitled to any due process procedures because his placement in MAP status was a treatment, rather than a disciplinary, decision. It relies on M.X.L., supra, 379 N.J. Super. at 48-50. That case, however, involved an STU resident who was found in possession of pornography on numerous occasions. Id. at 43-44.

It is not self-evident to us that every limitation of rights pursuant to N.J.A.C. 10:36A-2.3 involves a treatment decision. In fact, N.J.A.C. 10:36A-2.3 and -2.4 suggest otherwise because they distinguish between treatment issues, as to which DHS staff are the decision makers, and safety issues, as to which DOC staff are the decision makers. Here the limitation of L.O.'s rights was premised on his involvement in a physical altercation with another resident, under circumstances in which the other resident appears to have been the aggressor.

It is equally unclear whether all of the procedures required by Avant are applicable when the limitation of rights at issue does not involve discipline "resulting in forfeiture or withholding of good time credits; confinement in a disciplinary cell; administrative segregation; transfer to another institution or to a higher security status for disciplinary reasons; or any other action which would tend to affect the inmate's release or parole date or have a major change in the condition of confinement." Avant, supra, 67 N.J. at 519 n. 21 (citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)).

We decline to decide those issues in this appeal because our reading of the record indicates that the case is moot. It appears that L.O.'s rights have been restored and he is no longer subject to MAP restrictions.

 
Appeal dismissed.

N.J.A.C. 10:36A-2.3(a)(5) provides that a resident has the "right to have individual space for storage use."

The record contains statements from other STU residents supporting L.O.'s version of the event.

Unlike the resident in M.X.L., supra, 379 N.J. Super. at 49-50, L.O. did not acknowledge his culpability in the matter and properly followed the STU grievance procedure.

(continued)

(continued)

8

A-0163-09T2

RECORD IMPOUNDED

July 8, 2010