JOHN TELL 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NOT FOR PUBLICATION WITHOUT THE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-5838-08T2

JOHN TELL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

September 9, 2010

Submitted August 31, 2010 - Decided

Before Judges LeWinn and J. N. Harris.

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

John Tell, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Inmate John Tell, a clerk in the Trenton State Prison Inmate Legal Association (ILA), appeals sanctions imposed upon him by the Department of Corrections (DOC) for committing prohibited act .709, failure to comply with a written rule or regulation of the correctional facility. N.J.A.C. 10A:4-4.1(a)(.709). We remand for an entirely new disciplinary proceeding.

The facts and circumstances that bring this appeal to our attention appear to have resulted from a breakdown in communications between Tell and prison authorities both prior to and during the disciplinary proceedings. For example, Tell argues that his allegedly prohibited conduct was consistent with "long-standing practice of the ILA," and was "completely misunderstood" by an allegedly novice employee at Trenton State Prison. The DOC takes the position that "it is unclear from the record whether Tell had requested confrontation [during the hearing]" and "it is also unclear if other documents were also considered by [the hearing officer]." Because we share both parties' concern that essential issues may not have been adequately addressed during the administrative proceedings, we find that a remand pursuant to Rule 2:9-1(b) is appropriate.

Distilled to its essence, Tell was accused of violating a written rule implementing procedures at the institution relating to the appropriate method of delivery of written communications from an inmate to his or her attorney. As part of his duties in the ILA, Tell allegedly had prepared a brief on behalf of another inmate and was accused of attempting to have it delivered by a prison employee directly to the other inmate's attorney. The Inmate Manual of the institution provides that

[n]o outgoing legal correspondence may be given directly to an attorney or other representative. All outgoing legal material must be placed into an envelope, properly addressed and delivered to the Mail Room for pick-up by the attorney-representative. Any articles given directly to an attorney/representative by an inmate shall be considered as contraband and removed from the attorney/representative to be checked for contraband and returned to the inmate.

Tell claimed, among other things, that while he indeed prepared the legal communication, he properly requested that a prison employee deliver it addressed to the inmate's attorney to the prison's Fronthouse Mailroom, not directly to the attorney. A witness against Tell indicated that the legal communication was delivered to the Fronthouse Mailroom in a large manila envelope where it was ultimately left and inspected by prison authorities. The same witness suggested that at first, the prison employee stated that Tell had asked her to deliver the large manila envelope directly to the attorney, who was supposed to be in the vicinity of the Fronthouse Mailroom at that time.

From our canvass of the record, based upon the concessions by the agency that a fuller exploration of the inmate's contentions are required, and that a further review is appropriate, we believe that the interests of justice are best served by remanding the matter for an entirely new disciplinary proceeding. We are unpersuaded by Tell's arguments that his due process rights, as required by Avant v. Clifford, 67 N.J. 496, 525-39 (1975) and its progeny, were violated by prison authorities in the handling of this disciplinary matter; an outright reversal therefore would be inappropriate. However, we do not have sufficient confidence in the administrative result to affirm, most notably where the DOC has expressed its uncertainty and reservations, particularly with regard to its understanding of Tell's request for confrontation of witnesses.

In sum, this matter is remanded to the DOC, which shall conduct further measures as it deems appropriate according to law. We do not retain jurisdiction.