DAMIEN AMPARO 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NOT FOR PUBLICATION WITHOUT THE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-4741-10T1

DAMIEN AMPARO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

March 8, 2013

Submitted August 27, 2012 - Decided

Before Judges Alvarez and Nugent.

On appeal from the New Jersey Department of Corrections.

Damien Amparo, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Erin M. Greene, Deputy Attorney General, on the brief).

PER CURIAM

Damien Amparo, an inmate at New Jersey State Prison in Trenton, appeals from a final Department of Corrections (DOC) decision that continued his placement in involuntary protective custody (IPC). He argues that his placement and continuation in IPC has created an unwarranted hardship and has violated his liberty interest. Having considered Amparo's argument in light of the record and applicable law, we affirm.

On January 2, 2010, while incarcerated at the Albert C. Wagner Youth Correctional Facility, Amparo and his brother were involved in an altercation with three inmates. During the altercation, the other inmates wielded weapons: a broomstick, a wooden "shank," and a lock attached to a stinger. Although disciplinary charges were brought against Amparo, they were ultimately dismissed when it was determined that he was defending himself. After the altercation, Amparo was medically evaluated and placed in protective custody.

The Special Investigations Division (SID) investigated the altercation and learned the attack against Amparo and his brother related to Amparo's "high profile" case involving rival gangs. Specifically, SID's investigation revealed the attack against Amparo was in retaliation for his murder of a rival gang member.

On February 5, 2010, a hearing officer conducted a hearing to determine whether Amparo should be retained in IPC "because of a serious threat of harm to [his] well-being" if he were allowed to return to the prison's general population (GP). Based on the confidential SID investigation report, the hearing officer determined that he should remain in IPC.

A year later, at Amparo's annual IPC hearing, he asked to be returned to GP. Relying upon a second SID confidential report, the hearing officer ordered that Amparo remain in IPC. Amparo filed an administrative appeal in which he explained:

At my hearing, the hearing officer relied upon a report that was prepared by SID, which stated that the incident occurred in retaliation for the victim in my criminal conviction, which was a member of [a gang]. They claimed that my case was a "High Profile Case" in the City of Trenton, which turned into a "war" between [rival gangs].

While housed at the Albert C. Wagner Youth Correctional Facility, I was coming back from the mess hall one evening, and accidentally stepped on another prisoner's shoe. He became angry, and we exchanged some words. Later that evening, this same prisoner and I exchanged some more words. My brother happened to be coming back from work at the time, and tried to intervene in order to peacefully resolve the issue. However, at that point some of the other prisoner's friends came over believing that they had to defend their friend, and began to attack my brother and I. This incident however had nothing to do with my criminal matter. There were never any threats made against my life, and I will not be in any danger if I am released back into [GP]. This was an isolated incident, and I should not be punished by being placed on [IPC], after all of the charges were dismissed against me.

After considering Amparo's appeal, including his explanation about how the altercation occurred, as well as the SID reports, Administrator Greg Bartkowski denied the appeal. Bartkowski found that Amparo's current classification was appropriate. In a memorandum to Amparo, Bartkowski explained: "You may not agree with the decision and what reports were used but it was a high profile case in Trenton and by looking at the reports it caused an entire city and law enforcement community to be at a heighten[ed] alert status to prevent retaliation between the gangs."

The DOC Division of Operations subsequently rejected Amparo's request to sign a waiver and to be returned to GP. This appeal followed.

Amparo makes the following argument:

POINT I.

APPELLANT'S PLACEMENT IN INVOLUNTARY PROTECTIVE CUSTODY HAS CREATED AN UNWARRANTED HARDSHIP AND LIBERTY INTEREST

The Legislature has declared that "incarcerated offender[s] should be protected from victimization within [State correctional] institution[s]." N.J.S.A. 30:1B-3(c). The DOC is charged with the responsibility of implementing this legislative mandate. N.J.S.A. 30:1B-3. When the DOC fulfills its statutory duty to safeguard those incarcerated in state prison, its action is not punitive and does not implicate due process principles applicable to certain disciplinary proceedings.

Contrary to Amparo's assertion, his placement in IPC does not implicate a constitutionally protected liberty interest. To begin with, in the context of prisoner rights, "[t]he Due Process Clause standing alone confers no liberty interest in freedom from state action taken 'within the sentence imposed.'" Sandin v. Conner, 515 U.S. 472, 480, 115 S. Ct. 2293, 2298, 132 L. Ed. 2d 418, 427 (1995) (quoting Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 869, 741 L. Ed. 2d 675, 686 (1983)) (internal quotation marks omitted). Even though a state may,

under certain circumstances[,] create liberty interests which are protected by the Due Process Clause[,] . . . these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

[Id. at 483-84, 115 S. Ct. at 2300, 132 L.

Ed.2d 429-30 (citation omitted).]

"After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is . . . the nature of those conditions themselves 'in relation to the ordinary incidents of prison life.'" Wilkinson v. Austin, 545 U.S. 209, 223, 125 S. Ct. 2384,2394, 162 L. Ed. 2d 174, 190 (2005) (quoting Sandin, supra, 515 U.S. at 484, 115 S. Ct. at 2293, 132 L. Ed. 2d at 418). Segregated confinement, without more, generally does not implicate a constitutionally protected liberty interest. Sandin, supra, 515 U.S. at 486, 115 S. Ct. 2301, 132 L. Ed. 2d 431; see also Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (holding "that the conditions experienced by [the defendant] in administrative custody did not impose on him 'atypical and significant hardship,'" he was not deprived of any state created liberty interest, and that "the failure to give him a hearing prior to his transfer to administrative custody was not a violation of . . . procedural due process.").

Amparo's confinement in IPC does not impose an atypical and significant hardship on him. The New Jersey Administrative Code establishes rules for, among other things, operating the protective custody unit. N.J.A.C. 10A:5-1.1(a)(4). These regulations ensure that protective custody units are properly maintained with appropriate ventilation, heating, lighting, and sanitation, N.J.A.C. 10A:5-5.6; that inmates in the unit are served regular correctional facility meals, N.J.A.C. 10A:5-5.7; and that inmates housed in protective custody receive appropriate medical and legal services, N.J.A.C. 10A:5-5.9 and -5.12. Inmates in protective custody have the same correspondence opportunities available to inmates in GP, N.J.A.C. 10A:5-5.13(a); and are afforded "the opportunity to receive a minimum of one window visit . . ." and "to make a minimum of one collect telephone call" per week, N.J.A.C. 10A:5-5.13(b) and (c).

Additionally, inmates in protective custody are required to "be given the opportunity for out-of-doors recreation for a minimum of one hour of the required five hours of recreation time per week . . .," N.J.A.C. 10A:5-5.14(b); are afforded educational opportunities, N.J.A.C. 10A:5-5.15; are assured visits by professional and correctional facility supervisory staff, N.J.A.C. 10A:5-5.16; and are afforded work opportunities, N.J.A.C. 10A:5-5.17.

Amparo has not established that the restrictions upon his activity imposed by these regulations constitute an atypical and significant hardship in relation to ordinary prison life. He asserts in his brief that he is locked down for twenty-four hours at a time, comes out for recreation approximately one and one-half hours every fifth day, is not allowed to receive contact visits, and is unable to congregate with other believers of his faith or to attend worship services. He also argues that he is unable to participate in any rehabilitation or educational programs. Amparo has not supported his assertions with a certification or other competent evidence.

To be sure, prisoners in IPC have greater restrictions on their activities than prisoners in GP. For example, unlike prisoners in IPC, who are afforded only "window visits," prisoners in GP are permitted to have "contact visits." N.J.A.C. 10A:18-6.16. Additionally, prisoners in GP must be "given the opportunity to participate in a minimum of one hour of active recreation per day." N.J.A.C. 10A:17-8.6(d). But such differences do not establish that the greater restrictions of IPC "present a dramatic departure from the basic conditions of [the IPC inmate's] sentence." Sandin, supra, 515 U.S. at 485, 115 S. Ct. at 2301, 132 L. Ed. 2d at 431.

Although Amparo has not established that he has a constitutionally protected liberty interest in remaining in GP, our Supreme Court has "not been satisfied with enforcement of naked constitutional right, but ha[s] gone further to strike down arbitrary action and administrative abuse and to insure procedural fairness in the administrative process"[;] and has, where appropriate, required procedural fairness on "extra-constitutional ground[s]." Avant v. Clifford, 67 N.J. 496, 520 (1975). Here, Amparo was afforded such procedural safeguards. He was provided with advance notice of the IPC hearing, was assisted by substitute counsel, and was afforded the opportunity to present witnesses or witness statements. The procedural safeguards afforded Amparo protected him against arbitrary administrative action and ensured fairness in the administrative process. Ibid.

Amparo also argues there is no need to confine him in IPC because his altercation with the other inmates was not gang-related, but was simply a run-of-the-mill verbal dispute that escalated into a physical altercation. The hearing officer and the Administrator who decided Amparo's appeal determined otherwise based on the SID reports. We will not disturb such agency decisions unless we "find [them] to be 'arbitrary, capricious, or unreasonable, or [] not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The SID reports constituted sufficient credible evidence to support the administrative decision to continue Amparo in IPC, which was not arbitrary, capricious, or unreasonable.

A