ABDUL HAQQ SALAAM v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4097-09T3

ABDUL HAQQ SALAAM,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

March 16, 2012

Submitted January 23, 2012 - Decided

 
Before Judges Grall and Alvarez.

On appeal from the New Jersey Department of Corrections.

Abdul Haqq Salaam, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Abdul Haqq Salaam, a New Jersey State Prison (NJSP) inmate serving a sentence of life without parole, appeals from a final administrative decision issued by respondent, New Jersey Department of Corrections (DOC) on March 18, 2010. The DOC denied Salaam's request to remove two other inmates, Timothy Strickland and Shawn Brown, from "keep separate status" (KSS). See N.J.A.C. 10A:3-2.1 to -2.5. We affirm.

A KSS may be instituted by a prison administrator so long as necessary "for maintenance of security and the orderly operation of the correctional facility." N.J.A.C. 10A:3-2.2(a). It is designed to keep potential conflicts to a minimum through the physical separation of prisoners. The only actual prison document regarding those on Salaam's KSS list is included in the State's appendix. The KSS lists three names and was instituted in 2000.

We note initially that although the notice of appeal raises the issue of the KSS of Brown and Strickland, Salaam's brief is virtually silent as to Brown. He does not explain why he appeals the continuance of Brown's KSS status. The State's brief is also virtually silent as to Brown. Salaam does not appeal the KSS of the third individual also on his 2000 list.

Salaam alleges the KSS status was imposed as retaliation by prison authorities for a civil rights lawsuit he instituted in 2002. As we have said, the computer printout in the State's appendix listing the three inmates on Salaam's KSS list, including Strickland and Brown, indicates it was generated in 2000.

On March 11, 2008, Salaam submitted an inmate remedy system form, requesting that the KSS be removed as he alleged he had never met Brown or Strickland, did not know them, and had never sought to have them kept separate from him. The request was denied on March 17, 2008.

On May 17, 2008, Salaam wrote to the Public Advocate's Assistant Ombudsman complaining that the KSS was retaliatory in nature and imposed as a result of his 2002 filings. On May 30, 2008, the Ombudsman declined to take action because the March 17, 2008 NJSP administration response complied with N.J.A.C. 10A:3-2.4 (setting out how any staff person may recommend the removal of the KSS).

On June 5, 2008, Salaam then wrote to the DOC's Acting Deputy Commissioner requesting assistance for the removal of the KSS. On July 1, 2008, the Acting Assistant Commissioner responded that he would not intercede on Salaam's behalf because all proper administrative steps had been taken.

On March 5, 2010, Salaam submitted another inmate remedy system form seeking to have the DOC remove the KSS as to Strickland only. On this form, Salaam asserted that Strickland was a "prisoner['s] rights advocate" and that Salaam wished to avail himself of Strickland's articles regarding the "prison industrial complex in the US & NJ." In response, the NJSP administration indicated that "[k]eep separates are not implemented for the purpose of retaliation," nor were they removed simply because one of the inmates left state custody. The administration also pointed out that despite the presence of the KSS, in the absence of the prisoner, "nothing occurs . . . ."

On March 16, 2010, Salaam administratively appealed the decision, which was denied.

Salaam asserts the following points for our review:

POINT ONE

THE DEPARTMENT'S DECISION TO PLACE A KEEP SEPARATE STATUS ALERT IN SALAAM'S FACESHEET/PROGRESS[ ]NOTES REPORT BASED ENTIRELY ON UNDISCLOSED CONFIDENTIAL INFORMATION HAVING UNKNOWN AND UNPROVED CREDIBILITY, RELIABILITY, AND SPECIFICITY IS FUNDAMENTALLY UNFAIR AND CONSTITUTES A VIOLATION OF DUE PROCESS. N.J. CONST. (1947) ART. I, PAR. 1; ART. VI, 5, PAR. 4; U.S. CONST. AMEND. XIV; N.J.S. 30:1B-3; 30:1B-3c; 30:1B-6; N.J.A.C. 10A:3-2.1 et seq.

POINT TWO

THE DEPARTMENT'S DECISION TO REFUSE TO INVESTIGATE AND PROVIDE NOTICE OF GROUNDS FOR AUTHORIZING OR PERMANENTLY MAINTAINING A KEEP SEPARATE ("KS") ALERT ON SALAAM'S FACESHEET/PROGRESS[ ]NOTES RECORD, AFTER ALLEGEDLY HOSTILE INDIVIDUALS HAVE LEFT THE PRISON SYSTEM FOR MORE THAN FIVE YEARS CONSTITUTES AN UNREASONABLE FAILURE TO FIND FACTS, IS ARBITRARY AND VIOLATES DUE PROCESS. N.J. CONST. (1947) ART. 1, PAR. 1; U.S. CONST. AMEND. XIV; N.J.S. 30:1B-3; 30:1B-3c; 30:1B-6; N.J.A.C. 10A:3-2.1 et. seq.

Our role in reviewing the decision of an administrative agency, such as the Prison Administrator in this case, is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will affirm an administrative agency decision unless on appeal we conclude it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. See In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Indeed, such decisions carry a presumption of reasonableness. Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Obviously, in addition to bearing legal burdens of proof on appeal, Salaam bears the burden of providing us with a sufficient record to enable us to make an appropriate decision. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977).

Salaam's first point is that the KSS violates his due process and is fundamentally unfair. Unfortunately, he does not explain the practical effect of a KSS, much less the reasons the designation is of such consequence as to require some due process prior to imposition. State v. Alexander, 310 N.J. Super. 348, 355 (App. Div.) (explaining that a litigant must show actual prejudice to support a due process claim), certif. denied, 156 N.J. 408 (1998).

Furthermore, the institution of a KSS between inmates is an agency function founded on the Code's delegation of authority to the DOC to make decisions related to day-to-day security. See N.J.A.C. 10A:1-1.1. Salaam does not proffer any argument which makes the delegation of such authority improper, or its exercise in his case an abuse of authority. In re Distrib. of Liquid Assets Upon Dissolution of the Union Cty. Reg'l High Sch. Dist. No. 1, Union Cty., 168 N.J. 1, 11 (2001) (stating that agency action may not exceed "the bounds of its discretion").

As to Salaam's second point, we observe that he bases his argument on a fact not in the record. He simply makes the statement that Strickland has been gone from the prison system for more than five years. In any event, given the acknowledged recidivism rates in our state,1 the prison authorities' decision to continue the KSS for Salaam, who is serving a life sentence, does not seem arbitrary and capricious.

Lastly, we note that Salaam learned of the KSS, instituted in 2000, as early as September 6, 2002. Obviously, this appeal and the steps he has taken to attempt to remove the KSS have not been timely. An administrative decision must be appealed within forty-five days of being rendered. R. 2:4-1(b). That did not occur here. Having failed to pursue a timely appeal, we will not address Salaam's issues further. R. 2:11-3(e)(1)(E). We see nothing in this record that would cause us to set aside the presumption of reasonableness with regard to the continuation of Salaam's status.

1 Pew Center on the States, State of Recidivism: The Revolving Door of America's Prisons 11 (2011) (As of 2007, New Jersey had a recidivism rate of 42.7%).