KEITH BOWMAN 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NOT FOR PUBLICATION WITHOUT THE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-3783-08T33783-08T3

KEITH BOWMAN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________

Submitted April 13, 2010 - Decided July 2, 2010

Before Judges Fuentes and Gilroy.

On appeal from a Final Decision of the Department

of Corrections.

Keith Bowman, appellant pro se.

Paula T. Dow, Attorney General, attorney for

respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Susan M. Scott,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant Keith Bowman is an inmate serving a thirty-year sentence for murder at the New Jersey State Prison in Trenton. He appeals from the final decision of the Department of Corrections (DOC) denying his application to be transferred from the Management Control Unit (MCU), a segregated unit within the prison, N.J.A.C. 10A:5-2.1 to -2.31, into the general prison population. Appellant argues, inter alia, that his continued confinement in the MCU is no longer warranted because he does not represent an identifiable threat to the security of the prison. We conclude that the record before us does not support the DOC's decision to continue appellant's confinement in the MCU.

On August 10, 1990, appellant and six other inmates violently attacked and injured seven unarmed correction officers. Although he was acquitted of the criminal charges arising from this incident, appellant was found guilty of committing prison disciplinary infractions *.002, "assaulting any person," and *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife[,] or unauthorized tool." N.J.A.C. 10A:4-4.1. As a sanction, appellant was confined to the MCU. He has been held in this segregated custodial setting, apart from the general population of the prison, since July 30, 1992.

Aside from his participation in the 1990 incident, the primary reason advanced by the DOC for appellant's continued confinement in the MCU is predicated upon an investigation conducted in 1992. That investigation revealed that appellant was a member of the Afriken National Ujamma (Afriken), a terrorist organization dedicated "to caus[ing] chaos, disruption and the violent elimination of Staff" within the prison system.

As part of the appellate record, the DOC included computer printouts reflecting annual reviews of appellant's confinement in the MCU spanning from 1992 to February 18, 2009. This Management Control Unit Review Committee (MCURC) report indicates that appellant was assigned to Phase III status within the MCU. The 2 008 Routine Rev.ew report also included the assessment of a prison social worker who rated appellant's adjustment to the MCU as "adequate" on a scale that included "poor, fair, adequate, and good." The social worker further noted that appellant completed "Anger Management (2000), Behavior Modification (2000) and Substance Abuse." Finally, the prison's Psychology Department reported no problems or complaints from appellant.

Despite this evidence, the MCURC decided to continue appellant's confinement in the MCU because his "actions continue to pose a threat to the safety and security of any correctional facility." The decision appears to have been based primarily, if not entirely, on appellant's "disciplinary history" emanating from the 1990 incident.

Appellant thereafter sought administrative review of the Committee's decision by prison Administrator Michelle R. Ricci. N.J.A.C. 10A:5-2.7. Among the factors the Administrator must consider on appeal are "[w]hether the decision of the [MCURC] was based on substantial evidence" and "[w]hether the decision rendered was appropriate to the inmate's case." N.J.A.C. 10A:5-2.7(b). In her written decision denying appellant's application, Ricci not only incorporated the Committee's findings, but noted, for the first time, that appellant had committed a disciplinary infraction on November 7, 2008, in which appellant was found to have engaged in fighting with another person in violation of *.004. Based on this record, Ricci concluded that appellant continued to pose a danger to the safety and security of the prison.

Appellant now raises two arguments on appeal. First, appellant maintains that the evidence presented to the MCURC does not justify his continued confinement in the MCU. Second, he argues that, in upholding his MCU confinement, Ricci improperly considered a disciplinary infraction appellant committed after the MCURC's October 2008 decision in violation of N.J.A.C. 10A:5-2.11(b)3. We agree.

Under N.J.A.C. 10A:5-2.11(a), the DOC must "conduct a hearing at least annually to review the status of the inmate in order to determine whether an inmate's release from [MCU] is appropriate." At this hearing the inmate has the burden of demonstrating that he has:

1. Participated in the required programs, jobs, educational and recreational programs afforded the inmate pursuant to this section;

2. Complied with the criteria detailed by the M.C.U.R.C.;

3. Remained free from prohibited acts preceded by an asterisk for the program year; and

4. Agreed to reaffirm the obligation to adhere to the rules and regulations for inmate behavior, as described in the Handbook on Discipline and correctional facility inmate handbooks.

[N.J.A.C. 10A:5-2.11(b).]

Thereafter, "[i]f the inmate demonstrates participation and compliance" with the criteria outlined in N.J.A.C. 10A:5-2.11(b),

the inmate will be considered for release from the [MCU] and the inmate will be released unless the Department of Corrections can demonstrate through substantial evidence, including behavior, correctional facility adjustment, and disciplinary history that the inmate continues to pose an identifiable threat:

1. To the safety of others;

2. Of damage to, or destruction of property; or

3. Of interrupting the secure and/or orderly operation of a State correctional facility.

[N.J.A.C. 10A:5-2.11(c) (emphasis added).]

Applying these regulatory guidelines to the record before us, we are satisfied that appellant has demonstrated his "participation and compliance" with the criteria outlined in N.J.A.C. 10A:5-2.11(b). Specifically, appellant's assignment to Phase III within the MCU demonstrates that he has fully complied with the Unit's regulations, he has completed anger management, substance abuse, and behavior modification courses offered by the DOC, appellant has not had any disciplinary infractions for nearly sixteen years, and the DOC has not come forward with any competent evidence showing appellant's continued affiliation with Afriken.

At this juncture, N.J.A.C. 10A:5-2.11(c) shifts the burden to the DOC to demonstrate, through substantial evidence, that appellant "continues to pose an identifiable threat: . . . [t]o the safety of others[,] . . . [o]f damage to, or destruction of property[,] or . . . [o]f interrupting the secure and/or orderly operation of a State correctional facility." In our view, the 1990 incident and the disciplinary infractions emanating therefrom do not justify appellant's continued confinement in the MCU for nearly twenty years. Without more, the DOC does not have the legal authority to continue to keep appellant indefinitely confined in the MCU. To do so under this record is arbitrary and capricious. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Finally, we conclude that Ricci erred in considering a disciplinary infraction committed by appellant on November 7, 2008, well after the MCURC's October 30, 2008 decision. The Administrator's standard of review for an appeal from a decision of the MCURC is set forth in N.J.A.C. 10A:5-2.7(b). This regulation does not authorize the Administrator to consider disciplinary infractions that were not before the MCURC at the time of its annual review.

 
Reversed.

We previously affirmed appeals filed by appellant seeking similar relief. Bowman v. Dep't of Corr., No. A-0710-07 (App. Div. June 25, 2008); Bowman v. Dep't of Corr., No. A-1919-05 (App. Div. Nov. 15, 2006); Bowman v. Dep't of Corr., No. A-2231-04 (App. Div. Oct. 11, 2005).

Although neither party in this appeal has defined what Phase III status actually means, we infer that this designation represents the prison authority's assessment that appellant has achieved the highest level of compliance with the rules governing MCU confinement. Our inference is based on the fact that there are two lower status levels, Phases I and II, and appellant himself noted his Phase III status as a positive factor supporting his application for reassignment to the general prison population.

Appellant's sanction for this infraction was fifteen days of detention, ninety days loss of computation time, and ninety days loss of recreational privileges.

(continued)

(continued)

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A-3783-08T3