DERRICK LENNON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2590-08T32590-08T3

DERRICK LENNON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.
_______________________________

Submitted February 23, 2010 - Decided March 23, 2010

Before Judges Parrillo and Ashrafi.

On appeal from a Final Agency Decision of the

Department of Corrections.

Derrick Lennon, appellant pro se.

Paula T. Dow, Acting 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 Derrick Lennon appeals from a final decision of the New Jersey Department of Corrections (DOC) denying his request for reimbursement of monies deducted from his inmate account for the purchase of sneakers he had ordered from the prison commissary. We affirm.

According to the State's proofs, appellant is an inmate incarcerated at East Jersey State Prison (EJSP) in Rahway. In early October 2008, Lennon submitted to the EJSP commissary a referral form from the EJSP Medical Department, which indicated that he required extra-wide "17 EEE" footwear. Because the commissary does not normally carry size "17 EEE" sneakers, Tom Pisack, the manager of the prison commissary, had to place a special order on Lennon's behalf for the extra-large footwear. Prior to placing the order, however, Pisack located an approved vendor who could supply the sneakers. Because the sneakers were a special purchase and therefore non-returnable, Lennon was called to the commissary by Officer K. Little to look at a picture of the New Balance all-white sneakers. At that time, Lennon was informed by Pisack, in Little's presence, of the cost of the sneakers, which Lennon agreed to pay, and that his inmate account would be charged when the sneakers came in.

Based on Lennon's request, Pisack submitted a procurement request for size "17 EEE" sneakers to the EJSP Business Office, which in turn placed the special purchase order on October 20, 2008. When the sneakers arrived, Lennon was again summoned to the commissary to pick them up, but he refused the sneakers because, according to Officer Little, he wanted to order a food package instead. Because the sneakers were non-returnable, Lennon's inmate account was charged.

On November 17, 2008, Lennon completed an administrative remedy form wherein he objected to the deduction of money from his account to pay for the sneakers, claimed that he did not authorize payment for the sneakers, and requested the return of the money. On December 10, 2008, the EJSP Business Department responded to Lennon's remedy form, explaining that he had, in fact, requested the sneakers pursuant to a "medical slip" that he presented to the commissary, that the sneakers were a special purchase and were non-returnable, and that Lennon was told by the commissary personnel at the time of the purchase that he would be charged for the sneakers when they arrived. On December 18, 2008, Lennon prepared a remedy appeal in which he again denied that he had authorized any deduction from his account for the cost of the sneakers, and claimed that he could only be charged one dollar for the sneakers because they were "prescribed" by the Medical Department. On December 19, 2008, the appeal was denied. This appeal followed.

On cross-motions for summary disposition, we remanded to the DOC, retained jurisdiction, and ordered the remand to be completed within thirty days. On remand, EJSP Business Manager Ellen Alchevsky conducted additional investigation and in an April 21, 2009 memorandum to appellant, incorporated her findings and conclusions. As for Lennon's claim that he should have been charged only $1.00 because the sneakers were medically "prescribed," Alchevsky concluded that the referral was not a medical prescription, but rather simply an informational tool used by the commissary to special order the sneakers:

Medically referred sneakers are not part of the basic clothing issue as per the above mentioned procedure, hence the institution is not required to provide them to you, boots are the required clothing issue and therefore you would not be charged for boots. Your contention [is] that the referral form issued by medical should be treated the same as a prescription for medication and therefore you should be charged a dollar for the referral, [but] the referral is not a prescription, the referral is used as an informational tool so the commissary would fulfill your request for a sneaker that is a special order.

On appeal, defendant contends that the evidence does not support the legitimacy of the deduction and that the deduction was part of a "pattern of corruption and mismanagement" by the EJSP commissary. We find both contentions baseless.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Board of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing "it was arbitrary, capricious, or unreasonable[;] . . . that it lacked fair support in the evidence[;] or that it violated legislative policies. . . ." Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963); see also In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.

[Ibid. (citations omitted).]

Here, the DOC's ultimate determination is sufficiently grounded on substantial credible evidence. The documentary evidence, including the medical referral form, procurement request, purchase order, and the reports of two eyewitnesses Little and Pisack clearly demonstrate that Lennon submitted the referral, ordered the sneakers, authorized the charge on his inmate account, and then arbitrarily refused to accept the sneakers when received by the commissary. Thus, the substantial credible evidence supports the finding that the deduction of monies from Lennon's inmate account was proper and authorized. As for appellant's other claim, suffice it to say, there is absolutely no competent proof in the record of a "pattern of corruption and mismanagement" by the EJSP commissary.

 
Affirmed.

Lennon's account was charged $66.19 for the sneakers, although his account should have only been charged $60.06, which includes the cost of the sneakers ($52.00), a five percent mark-up ($2.60) that is imposed, pursuant to a DOC internal management procedure, on all prison commissary items over $50.00 purchased from an outside vendor, and the ten percent VCCB surcharge ($5.46) that is imposed on all items purchased at prison commissaries pursuant to N.J.S.A. 30:4-15.1 and N.J.A.C. 10A:2-2.2. The DOC has represented that it will reimburse $6.13 to Lennon's account.

(continued)

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A-2590-08T3