CHARLES H. MANASCO 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NOT FOR PUBLICATION WITHOUT THE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-3588-08T3

CHARLES H. MANASCO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

December 27, 2010

Submitted October 26, 2010 - Decided

Before Judges Payne and Koblitz.

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

Charles Manasco, 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

Charles Manasco, a partially deaf sexually violent predator committed to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4 27.24 to

-27.38, appeals from the denial by the Department of Corrections (DOC) of his requests to purchase a cell phone and computer claiming, without significant legal analysis, violations of the Equal Protection and Due Process Clauses of the United States Constitution, the Americans with Disabilities Act (ADA), 42 U.S.C.A. 12101 to 12213, the federal Rehabilitation Act, 29 U.S.C.A. 701 to 794e, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, federal antitrust laws,1 consumer protection statutes, and the doctrine of collateral estoppel.2 Additionally, Manasco asserts a violation of 42 U.S.C.A. 1983, but does not develop any arguments in that connection.

The record establishes that Manasco was convicted on June 27, 1989 of robbery and aggravated sexual assault upon evidence that Manasco invaded the home of a woman who was previously unknown to him and subjected her to a violent, protracted sexual assault including attempted vaginal and anal penetration and forced fellatio. Additionally Manasco stabbed her twice with a knife that he found in the woman's kitchen. Manasco had previously been convicted as a juvenile of aggravated sexual assault, had exposed himself to a number of female prison staff members while in custody, and had a history of committing other non-sexually-related crimes. Manasco also had undergone four psychiatric hospitalizations, resulting in a diagnosis of schizotypical personality disorder.

Following the completion of his sentence, on August 11, 2000, Manasco was civilly committed to the STU as a sexually violent predator. Upon transfer to the STU, Manasco was provided with a Resident Guide that, among other things, listed personal computers and lap tops as items that were forbidden in the facility. The use or possession of cell phones has also been administratively prohibited. See N.J.A.C. 10A:4-4.1.

On January 7, 2009, Manasco filed a Request System and Remedy Form in which he sought authorization to purchase a cell phone. The request was denied on February 1, 2009 on the ground that a cell phone was a prohibited device in all secure facilities, including the STU. On February 11, 2009, Manasco filed an Administrative Remedy Request in which he stated that he sought to own a cell phone because he was deaf and had difficulty hearing what was being said when using STU phones located in noisy hallways, because of the cost of using the phones provided at the STU, because of the difficulties encountered in using calling cards, and because of the cost of using the TDD telephone3 available for his use. In his letter, Manasco additionally sought consideration of a request to possess a personal computer for use in running a business from the STU.

On February 12, 2009, Manasco again sought authorization to purchase a computer. That request was denied on February 23, 2009, and he was informed:

Be advised that the STU Resident Guide clearly indicates that PCs, notebooks and lap tops are currently prohibited. It is noted that the STUs have computers for resident use. Therefore, your request for a personal computer is denied.

Although an appeal that included the denial of a cell phone was filed from this determination, no response was issued.

Following Manasco's appeal of the two decisions to this court, the DOC sought a remand to fully address the issues raised by him. On December 7, 2009, the DOC issued a final decision denying Manasco's requests. The decision noted that:

The DOC is responsible for reviewing and approving property for resident retention. In this case, the Department finds that personal computers and cell phones are not permitted because they are likely to compromise security and the therapeutic environment. Cell phones and personal computers are contraband in a secure facility because of their ability to receive, transmit or store data. Computers and cell phones are easily used to store and view data that may include pornographic pictures and/or videos. Furthermore, cell phones and personal computers are capable of accessing the internet, both through wireless and hard lines. The Department believes that access to the internet would open the door for residents to prey on unsuspecting victims and would therefore be a public safety concern. In addition to its size and capability to store large amounts of data, it would be virtually impossible for either agency [the DOC or the Department of Human Services] to monitor effectively.

The decision also noted that the STU allowed access to telephones at a wide variety of times, permitted word processors that could accomplish many of the same tasks as a computer, and had computers available for resident use in connection with educational, vocational/rehabilitative and therapeutic endeavors.

On appeal, Manasco argues that the DOC failed to address his claims under the constitution and the state and federal statutes cited by him in this appeal. However, our review of Manasco's submissions to the DOC establishes that, although he provided some factual detail regarding his claims upon which allegations of constitutional and statutory violations could arguably have been premised, he never asserted any of the constitutional and statutory violations that he now asserts on appeal. Further, on appeal, Manasco does not identify in his brief the specific provisions of the laws upon which he relies, and he fails to cite any case law in support of his positions.4 We therefore decline to address those claims at length at this time. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We add only the following.

We conclude, in the circumstances presented, that our role in reviewing this particular decision by the DOC is limited to a determination whether the decision was arbitrary, capricious or unreasonable or was not supported by substantial credible evidence in the record as a whole, in which case reversal is warranted. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963)). In this case, the DOC justified its denial of Manasco's requests by noting that the two devices that he sought authorization to obtain could be used to access pornographic materials and potential victims, thereby undermining the therapeutic goals of the STU and threatening the security of the public. We have previously held that:

"Individuals are civilly committed under the [SVPA] because they pose a danger to the public health and safety due to their behavior." In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 610 (App. Div. 2003) (citing Kansas v. Hendricks, 521 U.S. 346, 357, 117 S. Ct. 2072, 2079-80, 138 L. Ed. 2d 501, 512 (1997)), certif. denied, 179 N.J. 312 (2004). They are likewise in need of treatment designed to modify their sexually violent behavior and thus reduce the danger that they pose to others.

[R.R. v. N.J. Dept. of Corr., 404 N.J. Super. 468, 475-76 (App. Div.), certif. denied, 198 N.J. 474 (2009).]

We regard the rules and regulations prohibiting cell phones and personal computers to be consistent with the purposes of the SVPA as we have described them, as is the DOC's determination not to waive those prohibitions in Manasco's case.

Further, we note that the basis for Manasco's request for use of a computer was in no respect related to a need to accommodate his disability of partial deafness; only the cell phone request fell within that category. In that regard, defendant did not deny that he had access to a TDD device; he simply sought an alternative to it that has uniformly been prohibited at the STU and within the State's prisons, in general. Our review of relevant case law suggests to us that the TDD device reasonably accommodated defendant's hearing disability, and that no further accommodation by the STU of the sort that defendant seeks is required.

Title II of the ADA provides that qualified disabled persons shall not "by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 43 U.S.C.A. 12132. This provision of the ADA has been held to apply to correctional institutions as "public entities." Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 210, 118 S. Ct. 1952, 1954-55, 141 L. Ed. 2d 215, 219 (1998). By such reasoning, it would apply to the STU as well.

A provision of the Rehabilitation Act, 29 U.S.C.A.

794(a), provides that a qualified disabled person shall not, "solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . . ."5 Precedent developed under the Rehabilitation Act has been held applicable to Title II of the ADA, Helen L. v. DiDario, 46 F.3d 325, 328 n.7, 330-31 (3d Cir. 1995). Similarly, ADA precedent has been found applicable to Rehabilitation Act decisions. Yesky v. Commonwealth of Pa. Dept. of Corr., 118 F.3d 168, 170 (3d Cir. 1997), aff'd, 524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215 (1998).

Finally, the LAD provides that "all persons shall have the opportunity to obtain . . . all the accommodations, advantages . . . and privileges of any place of public accommodation" without discrimination on the basis of disability. N.J.S.A. 10:5-4 and -4.1. Whether a prison or other secure facility is covered by the LAD as a place of public accommodation has not been determined by New Jersey's courts. Nonetheless, the Federal District Court for the District of New Jersey has predicted that New Jersey's courts would find such to be the case. Chisolm v. Manimon, 97 F. Supp. 2d 615, 621-22 (D.N.J. 2000), rev'd on other grounds, 275 F.3d 315 (3d Cir. 2001).

Because the issues under discussion here are better developed under federal law than state statute, and because New Jersey courts have consistently utilized decisions construing the ADA as precedent for the interpretation of New Jersey's laws against discrimination, Lawrence v. Nat'l Westminster Bank N.J., 98 F.3d 61, 70 (3d Cir. 1996), we limit our discussion to federal precedent. Under federal regulations, public entities are required to take "appropriate steps" to ensure that communication with a disabled person is as effective as communication with others. 28 C.F.R. 35.160(a). Additionally, "where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity," a public entity must furnish "appropriate auxiliary aids and services." 28 C.F.R. 35.160(b)(1). However, that duty is limited by 28 C.F.R. 35.164, which provides that a public entity may be relieved of its duty upon proving that, considering all funding and operating resources available, the proposed action would result in either (1) a fundamental alteration in the nature of the service, program or activity or (2) undue financial or administrative burdens. To qualify for an exemption under this provision, the public entity must provide a written statement explaining its conclusions, and it must take alternative action, not resulting in such an alteration or burden, that ensures, to the maximum extent possible, that the disabled person received the public entity's benefits and services.6

The limited record before us suggests that the DOC has demonstrated the applicability of the exemption contained in 28 C.F.R. 35.164 by offering to Manasco the use of a TDD device and by stating in writing its concern that Manasco could use a personal cell phone for illicit purposes and in a manner that might defeat therapeutic goals as the result of his ability, through that use, to contact potential victims and obtain access to pornography. We thus affirm the determination of the DOC to deny Manasco's request for a cell phone, as well as his request for a personal computer.

Affirmed.

1 In that regard, Manasco appears to argue that the State has created a monopoly by providing those committed to the STU with access to pay telephones, from which it derives revenue. We do not regard that argument as of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

2 Manasco appears to argue that, because he has been released from prison and civilly committed, no punitive sanctions, potentially appropriate in a prison setting, can be imposed upon him. He appears to contend further that the actions of the DOC giving rise to this appeal were punitive in nature. We do not regard the Department's conduct as necessarily punitive. Further, we have previously recognized that committees remain subject to certain restraints and restrictions, despite the existence of a therapeutic environment in the STU. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 609 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Accordingly, the DOC is responsible for the operation of the facility, whereas the Division of Mental Health Services in the Department of Human Services is responsible for providing and facilitating the treatment of residents. Ibid. The dual intent and legislative purpose of the SVPA to provide confinement and treatment does not render the SVPA unconstitutionally punitive, per se. Ibid.

3 A TDD or TTY device is a text telephone that allows deaf persons to communicate by typing in messages and by reading on a screen the messages typed in by others. Chisolm v. Manimon, 97 F. Supp. 2d 615, 618 n.2 (D.N.J. 2000), rev'd on other grounds, 275 F.3d 315 (3d Cir. 2001).

4We conclude that Manasco has not established a factual basis for his claim of an equal protection violation, since he has not offered any evidence to refute the DOC's claim that a blanket prohibition of personal computers and cell phones exists at the STU and that the prohibition is uniformly enforced. See also Doe v. Poritz, 142 N.J. 1, 93 (1995) (holding that "creating a separate classification for repetitive-compulsive sex offenders is not arbitrary and 'has a rational basis.'"); R.R. v. N.J. Dept. of Corr., 404 N.J. Super. 468, 482 (App. Div.), certif. denied, 198 N.J. 474 (2009). We are uncertain whether defendant claims a violation of procedural or substantive due process. However, defendant has not established a foundation for a procedural claim and, because the claims asserted here are not constitutionally based, substantive due process in inapplicable. See Youngberg v. Romeo, 457 U.S. 307, 312-14, 102 S. Ct. 2452, 2456-57, 73 L. Ed. 2d 28, 35-36 (1982); R.R., supra, 404 N.J. Super. at 479.

5 We are assuming, for purposes of this opinion, that Federal financial assistance exists in this case.

6 Although 28 C.F.R. 35.160(b)(2) provides that "a public entity shall give preference to a disabled person's choice of an auxiliary aid over an alternative, that choice need not be honored if the entity "can demonstrate that another effective means of communication exists or that use of the means chosen would not be required under 35.164." 28 C.F.R. Part 35, Appendix A.