KEVIN JACKSON v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3828-08T3

KEVIN JACKSON,

Appellant,

v.

DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________________________

October 12, 2010

Submitted September 14, 2010 - Decided

Before Judges Graves and Messano.

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

Kevin Jackson, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Ellen M. Hale, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Kevin Jackson, an inmate at New Jersey State Prison in Trenton, appeals from the final decision of the Department of Corrections DOC adjudicating him guilty of committing prohibited act *.009, misuse of a computer and related peripheral devices, and *.306, conduct that disrupts or interferes with the security or orderly running of the facility. See N.J.A.C. 10A:4-4.1(a). We have considered the arguments raised and affirm.

The charges were lodged against Jackson as the result of an extensive investigation by the Special Investigations Division (SID) into staff wrongdoing at the facility. When interviewed, Jackson admitted using a computer to conduct unauthorized legal work, save it, and reuse it. This resulted in the *.009 violation. Based upon confidential information contained in SID's investigative file, Jackson was also charged with the *.306 violation, specifically because he had "corrupt[ed] a DOC employee."

At the disciplinary hearing, Jackson submitted a lengthy statement in which he waived his procedural due process rights and pled guilty to both charges. He admitted to doing "unauthorized legal work for and on behalf of a civilian staff member on the Life Program's [c]omputer, I.L.A.'s, Inc. [c]omputer and/or the Law Library [c]omputers." He requested that a single sentence be imposed for both violations. The hearing officer found him guilty of both charges and imposed consecutive sanctions.

Jackson sought an extension of time in which to file an administrative appeal, which was granted; however, he never filed a substantive appeal, and DOC treated the extension request as his appeal. On March 6, the facility administrator upheld the guilty adjudications and the sanctions imposed. This appeal followed.

In a series of separate points, Jackson essentially contends that he was not properly put on notice that "SOP 315" apparently prohibited use of the computer equipment under these circumstances. He raises a similar vagueness argument regarding the regulatory definition of an "electronic communication device"; DOC's zero tolerance policy regarding the misuse of the same; and the sanction of terminating of contact visits for *.009 violations. Jackson also argues that the interview conducted by SID violated his rights, that the statements he made were not admissible because they were not "reliable," and that the two charges must "merge" because they "are one in [sic] the same."

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).

None of the arguments Jackson now raises were ever raised below. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (noting "appellate courts will decline to consider questions or issues not properly presented" below). After a thorough review of the record, we are convinced that DOC's decision was supported by substantial credible evidence, and that Jackson's arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following comments.

We have not been provided with a copy of "SOP 315" and cannot, therefore, address the claim that it is vague. It suffices to say, however, that when he pled guilty, Jackson never asserted that he was unaware his conduct violated DOC's policies. His written admission to the charges acknowledged that he was guilty of the infractions.

It is also evident that the regulations clearly include a computer within the definition of an "[e]lectronic communication device," N.J.A.C. 10A:1-2.2, and that N.J.A.C. 10A:4-5.1(e) provides that any adjudication of guilt regarding a *.009 violation will result in termination of contact visitation privileges. Furthermore, there is no evidence to support Jackson's claims that his interrogation by SID violated his rights or produced an "[un]reliable" statement.

Regarding the consecutive sanctions imposed, the record supports the conclusion that the *.306 violation involved additional conduct beyond Jackson's improper use of the computer -- the *.009 offense -- as Jackson used the computer to do legal work for a DOC employee. There is no prohibition in the regulations regarding consecutive sanctions for two violations, N.J.A.C. 10A:4-5.1; and, regarding the imposition of disciplinary detention, the regulations clearly permit separate sanctions for each violation even if they arose out of the same conduct. See N.J.A.C. 10A:4-5.3(a)(1) ("If an inmate is found guilty of more than one disciplinary charge arising out of one incident, the inmate may receive up to 15 calendar days for each disciplinary charge provided that the total time to be served in the Disciplinary Detention does not exceed 30 calendar days."). We have noted in the past that the Legislature has provided for the broad exercise of DOC's discretion in all matters regarding the administration of a prison facility, including disciplinary infractions by prisoners. See Russo v. N.J. Dept. of Corrections, 324 N.J. Super. 576, 583 (App. Div. 1999). In short, we find no basis to disturb the sanctions imposed in this case.