WILLIAM DYKEMAN v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2137-08T12137-08T1

WILLIAM DYKEMAN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_______________________________

 

Submitted May 19, 2010 - Decided

Before Judges Graves and Sabatino.

On appeal from Final Agency Decisions of the Department of Corrections.

William Dykeman, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

William Dykeman, a prisoner housed at the New Jersey State Prison and serving a thirty-one-year sentence, appeals various determinations of the Department of Corrections ("the Department") respecting the conditions of his confinement.

The specific conditions now complained of by Dykeman were largely the subject of a prior appeal that he brought against the Department in 2008. We dismissed that prior appeal without prejudice, because Dykeman had not exhausted administrative remedies by presenting his assorted grievances through the Inmate Remedy System ("IRS") established under N.J.A.C. 10A:1-4.1 to -4.9, and obtaining a final and appealable agency disposition of those grievances. Dykeman v. Dep't of Corr., No. A-2185-06 (App. Div. Aug. 18, 2008).

Dykeman now returns to this court with a renewed appeal, having presented various grievances through the IRS process but continuing to be dissatisfied with most of the Department's final administrative decisions responding to his concerns. In particular, Dykeman argues that: (1) he has been denied sufficient access to legal materials; (2) he has been denied proper medical treatment to his hip; (3) he has been denied sufficient outside recreation and exercise; (4) the food served in the prison is not nutritious, menus are not posted on his tier, and food is sometimes missing from his meals; (5) he was housed in a wing with smokers and was being exposed to second-hand smoke; and (6) his facility is unhealthy due to excessive smoke, dust and pollutants. Dykeman contends that these adverse conditions rise to the level of constitutional deprivations.

In assessing Dykeman's claims and the Department's responses to those claims, we bear in mind that appellate courts ordinarily will not disturb a decision of an administrative agency unless 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); see also In re Herrmann, 192 N.J. 19, 27-28 (2007). Applying that well-established standard, we accord particular deference to the expertise and "broad discretionary powers" of the Commissioner of Corrections in managing the State prisons pursuant to his statutory responsibilities. See, e.g., Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Turning to the specific grievances raised by Dykeman, we find that those grievances are substantially moot, or, if not moot, have been addressed thus far by the Department in a reasonable fashion.

With respect to Dykeman's request in his August 2008 IRS form seeking at least one hour of exercise each day, the Department responded by committing to provide him with such minimum amounts of recreation, subject to inclement weather and security considerations. The recreation schedule reflects that Dykeman is, in fact, slated to receive more than five hours of recreation each week. If the Department is persistently failing to adhere to this objective, Dykeman can file a new internal grievance.

Additionally, in response to Dykeman's complaint about passive smoke inhalation, the Department transferred him to a non-smoking wing. We also note the Department's ongoing efforts to enforce its smoking restrictions, as reflected in the February 17, 2006 memorandum from the State Prison's Associate Administrator attached to Dykeman's reply brief.

As to Dykeman's request for medical treatment for his hip, the record shows that he was referred to a physician, was given three x-rays, and was prescribed foot cushions intended to relieve discomfort in his hip area. If Dykeman's condition has objectively worsened since the time of the filing of his appeal, he may file a new internal grievance seeking additional medical attention if it is unfairly withheld, including other diagnostic tests such as MRI studies and a consult with an orthopedic specialist, as may be appropriate. The present record does not support a finding of an arbitrary withholding of medical care.

Concerning access to legal materials, the Department has provided Dykeman with such access, either directly or indirectly through inmate paralegals, and Dykeman is free to request extended legal access when he has a documented upcoming court deadline. This is in reasonable compliance with the legal access regulations set forth in N.J.A.C. 10A:6-2.1 to -2.16.

The dietary concerns raised by Dykeman also have been reasonably considered by the Department. The fact that meal items are sometimes missing and that the meal menu is not posted in the most convenient locations, even if true, does not bespeak arbitrariness and capriciousness. Moreover, Dykeman has not been prescribed a special medical diet by a physician.

Lastly, Dykeman's complaints of ill health from an alleged "sick building syndrome" are not medically substantiated by the present record, nor were those complaints appropriately presented in his IRS forms for exhausting administrative remedies.

 
Affirmed.

We decline to address Dykeman's arguments, which were not specifically raised within his internal administrative appeal, that the legal access provisions within N.J.A.C. 10A:6-2.1 are unconstitutionally vague, that the law library is too small, that the institution must issue the inmates pens instead of pencils, and that the Department's photocopying charges are excessive. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

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A-2137-08T1

 

May 28, 2010