RALPH KIMPTON 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NOT FOR PUBLICATION WITHOUT THE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-0521-10T2

RALPH KIMPTON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________________

October 21, 2011

Submitted September 27, 2011 - Decided

Before Judges Simonelli and Hayden.

On appeal from the New Jersey Department of

Corrections.

Ralph Kimpton, 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

Appellant Ralph Kimpton, an inmate currently incarcerated at New Jersey State Prison (NJSP) in Trenton, appeals from the final decision of the Department of Corrections (DOC) denying his claim for reimbursement for destroyed property. Having considered the record and applicable law, we affirm.

The record discloses that on September 16, 2009, the NJSP authorities confiscated materials used for gambling from Kimpton s cell, including his word processor. Following an investigation, on September 17, 2009, Kimpton was charged with possession of gambling paraphernalia. On September 21, 2009, Kimpton appeared at a hearing on the charge, where the hearing officer found him guilty. Kimpton received a sanction of ten days detention, ninety days administrative segregation, sixty days loss of commutation time and confiscation of the disc and word processor found to have been used for gambling. Kimpton did not file an appeal of the guilty finding or the sanction.

The NJSP Inmate Handbook provides that items seized as contraband must be removed from the prison within thirty days or they will be destroyed. On September 16, 2009, Kimpton acknowledged in writing that he had received an Inmate Receipt, Contraband Seizure form, which notified him that his word processor had been seized as contraband. On that same date, the prison mailroom supervisor sent a notice to Kimpton, informing him that he must provide a disposition for the contraband property within thirty days or the property will be considered abandoned and disposed of in accordance with NJSP policy. On October 16, 2009, the mailroom supervisor sent Kimpton a final notice that the seized property would be destroyed if not removed from the institution within thirty days. Kimpton did not respond. As a result, on November 19, 2009, the property was destroyed.

On January 21, 2010, Kimpton filed a written inquiry to learn the location of his word processor. In subsequent correspondence with various prison officials, Kimpton represented that he had never received any notification that the property was going to be destroyed as contraband. On March 5, 2010, Kimpton requested a replacement of his word processor by filing a Property Claim Form for Lost/Destroyed Property, which was subsequently denied.

On July 9, 2010, Kimpton appealed the denial of his claim to the Commissioner of the DOC. On August 3, 2010, Director Bettie Norris determined that the NJSP officials had not improperly destroyed Kimpton's property and issued the final agency decision, which stated,

Being that your word processor was confiscated due to your charge (.603 Possession of gambling paraphernalia); in accordance with 10A:3-6.3 if you do not design[ate]the item(s) to be mailed to family or friends, donate the item(s) to a charitable organization, or designate the item(s) to be destroyed, then it is at the discretion of the Administrator or designee to dispose of the item(s). A review of the Inmate Remedy Forms attached to your correspondence indicates the disposition of your word processor was a result of your failure to respond to the disposition requests.

On appeal, Kimpton raises the following contentions.

POINT I - [N.J.A.C.] 10A:3-6.3(b)(2) CLEARLY STATES THE OPERATING PROCEDURES THAT ARE TO BE FOLLOWED IF EVIDENCE CONFISCATED IS REGARDED AS CONTRABAND. THIS RULE EXISTS TO AFFORD PROPER DUE PROCESS AND WAS NOT FOLLOWED.

POINT II - KIMPTON CONTENDS THAT THE NOTICES THAT WERE SUPPOSEDLY SENT TO HIM NEVER REACHED THEIR DESTINATION DUE TO INSUFFICIENT PROCESS OF THE SYSTEM CURRENTLY IN PLACE.

Our role in reviewing an agency decision is limited. In re Stallworth, ___ N.J. ___, ____ (2011) (slip op. at 23) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or 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)(citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

Applying these standards, we discern no reason to disturb DOC's decision. Initially, we find that Kimpton's reliance on N.J.A.C. 10A:3-6.3(b)(3), which requires items seized as contraband to be preserved during an appeal of the underlying charges, does not apply here because no appeal was filed. Additionally, here the record shows that, when the word processor was seized as contraband in September 2009, Kimpton had both actual and written notice of that seizure. Moreover, the NJSP Inmate Handbook notified Kimpton that all contraband must be removed from the prison within thirty days. Kimpton's documentation that he had notified the mailroom of a new prison address two weeks after the second notice was sent does not provide persuasive evidence that he did not receive the two notices.

Based upon the above, we are satisfied that there was substantial credible evidence in the record supporting the DOC's decision. Thus, the decision denying Kimpton's claim for reimbursement for destruction of his word processor was not arbitrary, capricious or unreasonable.

Affirmed.