EDWIN ORTIZ 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NOT FOR PUBLICATION WITHOUT THE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-5837-08T2

EDWIN ORTIZ,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________________

October 6, 2010

Submitted September 7, 2010 - Decided

Before Judges Grall and Alvarez.

On appeal from the New Jersey Department

of Corrections.

Edwin Ortiz, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Edwin Ortiz is an inmate currently incarcerated at Northern State Prison and serving a thirty-year sentence for murder imposed in December 1987. He has been identified as a member of a Security Threat Group (STG), the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C. 10A:5-6.5. This is Ortiz's second attempt to appeal from his designation as a member of the Latin Kings. The prior appeal was dismissed due to Ortiz's failure to exhaust his administrative remedies. Ortiz v. N.J. Dept. of Corrs., 406 N.J. Super. 63, 65 (App. Div. 2009). Nonetheless, because the Department had not "respond[ed] to Ortiz's interview request in the time or manner provided in its regulations" and because Ortiz had pointed to apparent discrepancies in the prior explanations given to Ortiz, "we direct[ed] the Department to consider" an administrative appeal if he pursued that remedy. Id. at 70. As the appeal was dismissed, we did not retain jurisdiction.

Our prior decision was filed on March 20, 2009, and Ortiz filed an administrative appeal on March 27, 2009. On April 1, 2009, Assistant Chief Investigator of the Special Investigations Division (SID), Wayne Everett, submitted a memorandum to Melinda Haley, Special Legal Advisor to the Department of Corrections. The memorandum was prepared by Principal Investigator Wayne A. Robbins. It details the facts that led SID to identify Ortiz as a member of the Latin Kings, including the content of letters in his possession on May 14, 1997, and his admission on June 25, 1997. Robbins acknowledged that there was no evidence to support a prior report that Ortiz had a tattoo indicating his affiliation with the Latin Kings. On that basis, SID advised that Ortiz's complaint did "not warrant any further action on the part of this office." In a supplemental certification prepared after Ortiz filed this appeal, Robbins elaborated on his report by explaining that Ortiz had not been charged with an infraction for possession of the letters because the Latin Kings was not designated as a STG at that time.

For reasons not explained by anything in the record provided on this appeal, the Department did not respond to Otiz's administrative appeal in accordance with its regulations and this court's directive. Pursuant to N.J.A.C. 10A:1-4.6(c), Ortiz reasonably anticipated that the administrator or the administrator's designee would "provide a decision or finding . . . within ten business days of receipt of [his] 'Administrative Appeal.'" That was not done.

On May 18, 2009, Ortiz filed an inmate request form seeking an interview with the Administrator Larry Glover. On June 4, 2009, Ortiz received a response directing him to send his inquiry to SID. He did that on June 12, 2009, again requesting an interview with SID and advising that he would seek relief from the courts if he did not receive a response. The Department does not claim that it responded to that inquiry. On July 20, 2009, Ortiz filed a notice of appeal.

Ortiz raises two issues on appeal:

I. THE DEPARTMENT OF CORRECTIONS HANDLING

OF THE APPELLANT'S ADMINISTRATIVE APPEAL IS ARBITRARY, CAPRICIOUS, AND BLATANTLY INCONSISTENT WITH THE COURT'S DIRECTIVE.

II. THE DEPARTMENT OF CORRECTIONS'

VALIDATION OF APPELLANT AS A SECURITY THREAT GROUP MEMBER IS NOT BASED ON REASONABLY SUFFICIENT EVIDENCE AND INFORMATION, THUS RENDERING IT ARBITRARY, AND CAPRICIOUS.

The Department has not provided an adequate response to the claim that it ignored this court's directive. The Department asserts that the report SID submitted to the Department's Special Legal Advisor on April 1, 2009, is a response to Ortiz's March 27, 2009 administrative appeal, but there is nothing in this record that even suggests that Ortiz was ever given that response. As noted above, N.J.A.C. 10A:1-4.6(c) requires the administrator or the administrator's designee to "provide a decision or finding to the inmate within ten business days of receipt of the "'Administrative Appeal.'" Moreover, when Ortiz presented the Department with an opportunity to correct its failure to reply to his administrative appeal, the administrator's designee did not provide the April 1, 2009 memorandum and indicate that it was rejecting his appeal on the basis of the information it contained. Instead, Ortiz was directed to send an inquiry to SID. He complied and did not receive a response.

Because the Department did not comply with our directive or its regulations, we remand and direct the Department to issue a finding or decision to the inmate and file a copy of that finding or decision with this court within fifteen days of the date of this opinion. Upon receipt of the Department's finding or decision, the clerk of the court shall issue a scheduling order to permit additional briefing forthwith. The parties are free to rely on the briefs on file if they so elect and advise the court.

The matter is remanded for the limited purpose of issuance of a finding or decision in conformity with this opinion. Jurisdiction is retained.