DUDLEY RUE 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NOT FOR PUBLICATION WITHOUT THE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-0

DUDLEY RUE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

June 3, 2014

Submitted May 13, 2014 Decided

Before Judges Espinosa and Koblitz.

On appeal from the New Jersey Department of Corrections.

Dudley Rue, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).

PER CURIAM

Dudley Rue, an inmate at the New Jersey State Prison, Trenton, appeals from the May 15, 2013 final decision of the Department of Corrections (DOC) continuing his placement in the Management Control Unit (MCU). Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

I.

Rue is serving a thirty-year sentence with a thirty-year mandatory minimum for murder, unlawful possession of a weapon and possession of a controlled dangerous substance with the intent to distribute.

Rue's institutional conduct resulted in his assignment to the MCU, which is "a close custody unit to which an inmate may be assigned if the inmate poses a substantial threat to the safety of others; of damage to or destruction of property; or of interrupting the operation of a State correctional facility." N.J.A.C.10A:5-1.3. The Management Control Unit Review Committee (MCURC) is responsible for hearing cases of inmates referred for placement in the MCU and for conducting three month status reviews of inmates assigned to the MCU. Ibid.

An inmate shall be assigned to the MCU when the MCURC, after considering the criteria in N.J.A.C.10A:5-2.4, concludes that the inmate poses a substantial threat: (1) to the safety of others; (2) of damage to or destruction of property; or (3) of interrupting the operation of a State correctional facility.

[N.J.A.C.10A:5-2.5(a).]

A number of criteria are considered when making this determination, including: (1) the inmate's disciplinary records; (2) past criminal offenses; (3) the number and location of past institutionalizations; (4) reports by professional staff; (5) reports indicating present involvement in criminal activity within the correctional facility; (6) evidence of an attitude indicating an unwillingness to follow rules and obey orders; (7) inability to maintain a satisfactory work record as indicated in reports by work supervisors and/or frequency of job changes; (8) information indicating unsatisfactory adjustment to or performance in treatment or rehabilitative programs; and (9) evidence of an inability or unwillingness to house with other inmates in a non-disruptive and non-destructive manner. N.J.A.C.10A:5-2.4.

Following an inmate's placement into the MCU, a routine review hearing "shall be made a minimum of every three months." N.J.A.C.10A:5-2.10(a). At each routine review hearing, the MCURC shall review the information upon which the decision was based to assign the inmate to the MCU. N.J.A.C.10A:5-2.10(e). The MCURC shall release an inmate from the MCU only when, in its opinion, "the inmate no longer poses a substantial threat: (1) [t]o the safety of others; (2) [o]f damage to or destruction of property; or (3) [o]f interrupting the secure and/or orderly operation of a State correctional facility." N.J.A.C.10A:5-2.10(f). In addition, an inmate's placement in the MCU shall be reviewed annually "to determine whether an inmate's release from MCU is appropriate." N.J.A.C.10A:5-2.11(a).

From 1994, when his incarceration began, until February 1, 2013, when the MCURC first decided to assign him to the MCU,1Rue committed thirty-seven institutional infractions, including six serious "asterisk"2offenses, for which a total sanction of 900 days of administrative segregation was imposed. The infractions include possession or introduction of a weapon as well as use and sale of narcotics. The MCURC report notes that Rue possessed "security threat group material" and was identified as a member of "a security threat group, specifically the 5 Percenters." The report states that his membership in this group "has led to numerous criminal investigations regarding the introduction of contraband, staff manipulation, and extortion of inmates and their families." The MCURC concluded that his behavior "demonstrated a need for a highly structured environment such as the [MCU]."

In 2010, Rue was the subject of an extensive Special Investigations Division investigation at East Jersey State Prison, which resulted in the finding that Rue was a part of an extensive smuggling system and had a business and sexual relationship with a civilian teacher's assistant in the prison.

Rue's status in MCU was reviewed in April 2013, at which time the MCURC determined that Rue remained a threat to the safety and security of the institution and had not completed the necessary programs for release from the MCU.

II.

Rue raises the following point on appeal:

APPELLANT'S PLACEMENT IN THE MANAGEMENT CONTROL UNIT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE VIOLATING HIS RIGHT TO DUE PROCESS AND TO CONFRONT THE EVIDENCE AGAINST HIM.

In his reply brief Rue re-frames the issue as follows:

THE DEPARTMENT OF CORRECTIONS' FINAL DECISION SHOULD BE REVERSED BECAUSE THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S DECISION IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE WARRANTING APPELLANT'S PLACEMENT; DID NOT COMPORT WITH APPELLANT'S DUE PROCESS REQUIREMENTS; AND RELIED UPON ERRONEOUS AND HIGHLY PREJUDICIAL EVIDENCE NOT SUPPORTED BY THE RECORD.

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23, (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super.93, 102 (App. Div. 1997)). We have noted that the Legislature has provided for the broad exercise of the DOC's discretion in all matters regarding the administration of a prison facility. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).

Neither the United States Constitution nor our Constitution recognizes a right to a less restrictive custody status. Smith v. N.J. Dep't of Corr., 346 N.J. Super.24, 29 (App. Div. 2001). Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Ibid. As we further observed:

[U]nder State law, the Commissioner of the [DOC] has complete discretion in determining an inmate's place of confinement, N.J.S.A.30:4-91.2. SeeHluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); . . . . Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the [DOC]. N.J.S.A.30:1B-6; N.J.S.A.30:4-91.1.

[Id.at 29-30 (citations and quotations omitted).]

The New Jersey State Prison system is maintained and operated by the DOC, N.J.S.A.30:1B-8, which is headed by the Commissioner of Corrections. N.J.S.A.30:1B-4. Classification and transfer of state prisoners is confined to the Commissioner's sole discretion. N.J.S.A.30:1B-6, -9; N.J.S.A.30:4-91.1 to -91.3, -92.

Basic to the resolution of any proceeding seeking review of prison administrative action is the legal principle that courts will not interfere with the internal administration of the institution, absent action by the prison authorities which deprives an inmate of his constitutional rights or is clearly capricious or arbitrary.

[State v. Rydzewski, 112 N.J. Super. 517, 521 (App. Div. 1970).]

Accordingly, the Commissioner of the DOC has considerable discretion in determining the custody status of inmates. Smith, supra, 346 N.J. Super. at 29. Moreover, "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id.at 30 (citing N.J.A.C.10A:9-4.2). Although an inmate has no constitutionally protected right to a reduced custody status, we have not hesitated "to strike down arbitrary action" and have insisted upon "procedural fairness in the administrative process." White v. Fauver, 219 N.J. Super. 170, 180 (App. Div.), modified sub nom., Jenkins v. Fauver, 108 N.J.239 (1987).

We note that Rue's sentence, with a mandatory minimum term of the same length as the maximum sentence, means that Rue does not have the incentive to obey prison rules in order to be released on parole. Given the evidence upon which the decision was based to continue Rue's placement in the MCU, and our standard of review as to discretionary acts, there is no reason to disturb the agency's decision.

To the extent we have not discussed any issue raised in this appeal, we are satisfied that it lacks sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 Rue claims in his brief that he was housed in the MCU on "an emergency basis" from July 14, 2010 until January 2013. N.J.A.C. 10A:5-2.8 governs emergency MCU housing. As Rue appeals from a May 2013 decision affirming his continued formal placement in the MCU, we do not address his complaints regarding his housing prior to 2013.

2 N.J.A.C. 10A:4-4.1.