THOMAS TURNER 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NOT FOR PUBLICATION WITHOUT THE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-1105-08T11105-08T1

THOMAS TURNER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________

 

Submitted: November 5, 2009 - Decided:

Before Judges C.L. Miniman and Waugh.

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

Thomas Turner, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Thomas Turner appeals the final agency action of the New Jersey Department of Corrections (DOC) denying his claim for damages allegedly caused by Sergeant H. Thomas to the KTV color television in his cell. We have carefully reviewed the record on appeal and affirm.

Turner was incarcerated at South Woods State Prison on August 18, 2008, when he filed an Inmate Claim Form alleging that Sgt. Thomas had two of his officers search Turner's cell and they deliberately snatched the cable cord from the back of his television set. On September 2, 2008, Turner provided a property invoice for one KTV, Serial No. 9093708, to the DOC as proof of ownership.

On August 29, 2008, Karen E. Vanselous, Assistant Corrections Ombudsman, wrote to Turner regarding "Damage to Television and Harassment Issues," and advised that she had referred the matter to Captain Redman for appropriate action.

On September 19, 2008, Lieutenant Cesare Coslop advised Turner in writing that his "claim did not fit the criteria for a claim submission." He explained that "[w]hile 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." He concluded that Turner failed to demonstrate that South Woods State Prison was negligent, as follows:

Upon investigation of your claim, I find no evidence presented by you indicating negligence on the part of South Woods State Prison. Inmates retain personal property at their own risk. As you know [South Woods State Prison] is completely double bunked where as an inmate is removed from population for whatever reason, his cell can not be locked. Any property left unsecured by an inmate is at risk. This does not constitute negligence on custody's part. The burden of proof falls on the inmate and without any evidence presented it does not fit Lost Property Claim Criteria.

You have failed to show proof that your television was damaged d[ue] to actions of custody staff. The proper channels must be followed in order to have a damaged piece of personal property repaired.

On September 25, 2008, the DOC seized Turner's television because it was altered from its original form. On October 15, 2008, Turner was notified that his television was being held in the mailroom and that he had to arrange to dispose of it within sixty days.

On October 16, 2008, Vanselous again wrote to Turner in response to his request to meet with the Assistant Ombudsman regarding another television. She advised that it was Turner's responsibility to first follow the procedures utilizing the Inmate Request Form before contacting the Office of the Ombudsman. She advised that the Inmate Tracking System did not indicate that he had submitted a request regarding the matter. Turner was required to complete that entire process. If he was not satisfied with the response, he had to resubmit the same request form within ten days to appeal the decision. If he was still not satisfied, he could contact the Office of the Ombudsman.

On December 10, 2008, Vanselous once again wrote to Turner, advising him as follows:

I have been advised by Administrator's office that you have been advised to write to Ms[.] Balicki regarding a television. Please fill out another property claim and send it through the inmate mail directly to Ms[.] Balicki's office. Please advise me if you do not receive a response after two weeks.

On December 17, 2008, Julius Tyson, an inmate in the cell adjoining Turner's cell, certified that he was standing at his cell door window on August 18, 2008, and saw Sgt. Thomas and Officer Blizzard escort Turner and his cellmate from their cell. He heard Sgt. Thomas tell Turner and his cellmate to wait in the dayroom downstairs until Sgt. Thomas and Officer Blizzard were finished searching their cell. Tyson remained at the window in his cell door until he saw Sgt. Thomas and Officer Blizzard leave Turner's cell.

When Turner and his cellmate returned, Tyson heard Turner exclaim, "'Sgt. Thomas broke my television, its not working, when I left it was working and the pictures was clear.'" When Tyson asked what happened, Turner accused Sgt. Thomas of breaking his television by pulling off the cable wire, which broke the connection and caused the picture to go out. Tyson averred that he told Turner to put his name down as a witness.

Turner filed another Inmate Claim Form on December 15, 2008, but he did not include this form in the record on appeal. On January 8, 2009, Lieutenant Chard wrote to Turner regarding his December 15, 2008, Inmate Claim Form, again rejecting his claim. He noted that the only difference between this form and his August 18, 2008, claim was "that you attempt to blame Sgt. Thomas instead of the searching officers as in the original." He observed that the original claim was properly investigated and his duplicate claim was again denied.

On February 2, 2009, Vanselous wrote to Turner for the last time advising that Administrator Balicki had requested that Turner once again submit an Inmate Request Form regarding his television. She suggested that Turner save money from his State pay to purchase another television.

Turner has not proven that he ever submitted an Inmate Claim Form to Administrator Balicki, and thus seems not to have pursued an administrative appeal from the denial of his claim for damage to his television. Nonetheless, Turner filed this appeal and on June 2, 2009, we granted his motion to supplement the record in his reply brief. No such brief was ever filed.

Turner contends on appeal that the DOC acted in an arbitrary and capricious manner when they failed to interview his witness, Julius Tyson, with respect to alleged deliberate damage to his television by corrections officers. The DOC responds that the witness was not interviewed because he was not the cellmate and would not have been allowed in the cell. As a consequence, Tyson could not have relevant information.,

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[George Harms Const. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citations omitted).]

Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Assistance, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that appellant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only the following brief comments.

The DOC did not act in an arbitrary, capricious or unreasonable fashion in declining to interview Tyson because his certification was not submitted until after the DOC denied Turner's initial claim and Tyson did not see the corrections officers damage Turner's television. He only heard what Turner said upon returning to his cell, which Turner communicated to the DOC on August 18, 2008. As such, Tyson could not directly refute the information gleaned during the DOC's investigation. We also add that appellants are required to exhaust their administrative appeal remedies before appealing to us. Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979); R. 2:2-3(a)(2). As such, defendant's appeal was improvidently filed.

 
Affirmed.

Tyson recites facts that do not appear in the record. Those facts are not properly before us and will not be considered.

The DOC seeks to support this assertion with a sworn statement from the investigator dated May 4, 2009, the date on which the DOC filed its brief. The DOC was not given leave to supplement the record. As a result, we cannot consider this evidence.

This argument is not entirely correct because Tyson's statement would probably have been admissible under N.J.R.E. 803(a)(2), 803(c)(1), and 803(c)(2) to bolster Turner's credibility.

(continued)

(continued)

2

A-1105-08T1

February 9, 2010