ELIYAH YAH'TORAH 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NOT FOR PUBLICATION WITHOUT THE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

ZION'ELIYAH YAH'TORAH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________________________

February 21, 2014

Submitted November 12, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from the New Jersey Department of Corrections.

Zion'Eliyah Yah'Torah, appellant pro se.

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

PER CURIAM

Appellant Zion'Eliyah Yah'Torah appeals from the May 15, 2012 decision of the Department of Corrections, Office of Community Affairs and Outreach Services (DOC or Department), denying his request that the DOC make certain food provisions available to him to observe a festival of the "New Moon." The Committee determined that appellant had not provided sufficient information to support his claim that the DOC's current policies and procedures regarding inmate religious worship constitute a substantial burden by failing to make special dietary accommodations. The Committee further advised appellant that any additional requests should "include supporting documentation from appropriate sources that can substantiate that your claim is in fact religious in nature and a sincerely held religious belief." Our examination of the record satisfies us that the DOC's final decision was properly premised on facts in the record and is consonant with relevant statutory provisions. Accordingly, we affirm.

Appellant is currently incarcerated at New Jersey State Prison (NJSP) in Trenton and is serving a fifty-year sentence with a twenty-five year mandatory minimum term for carjacking, escape, assault against a law enforcement officer, burglary, conspiracy and robbery.

On May 27, 2011, appellant filed an Inmate Remedy System Form claiming that his understanding of the Jewish holiday ceremonial system requires certain foods to celebrate the "New Moon" each month with a religious festive meal. He requested goat or sheep meat, grape juice, pistachio nuts, cashew nuts, honeydew melon or watermelon, onions, goat cheese, and leeks for numerous dates celebrating the "New Moon" festival.1 The DOC responded to his request stating that "Rabbi Spritzer stated that only special prayers are made on those days according to Jewish custom." The DOC stated that the "New Moon" festivals are not mentioned in the department's internal management procedures regarding the Jewish faith. Appellant was then asked if he could identify a Jewish legal body, sect, denomination, or group that celebrates these festivals and requires special foods for their observance.

Further, the DOC stated that if no such authorities exist and "this is your personal deducted juristic act, please indicate such." Appellant was also asked, "is there any Jewish legal body, sect, denomination, or group that you would accept a rule from regarding this issue?" Appellant was then requested to forward his answers and any information that would help to "substantiate your request that these festivals require special foods." (Emphasis in original). Appellant did not substantiate his request by furnishing the requested information and responded only that "the Hebrew Bible is replete with references of "New Moon" as an occasion of monthly festivals."

On December 30, 2011, the DOC requested that appellant provide facts showing that (1) his belief is religious in nature; (2) his belief is "sincerely held" as he had indicated; (3) a denial of his request is not reasonably related to a legitimate penological purpose; and (4) a refusal of his request for this special dietary accommodation burdens his religious practice in any way. In response, appellant set forth a list of additional foods. He also represented that his religious practice is his sincerely held belief and recognized that his level of observance "may not be the level of observance of other Hebrew/Israelites/Jews," therefore, he requested solitary practitioner status as "the least restrictive means to further the State's compelling interest."

In its May 15, 2012, decision, the DOC advised appellant that he is afforded the opportunity to utilize the institutional canteen and special incentive package program. It pointed out that the "items you have requested are currently available via the institutional canteen." The DOC also noted that if the items are not available at the canteen, they may be acquired through use of the food incentive program or through an authorized vendor.

It is from the May 15, 2012 decision that appellant appeals. Appellant argues that the Department's decision violates his right to religious freedom under the United States Constitution2 and the Equal Protection Clause of the Fourteenth Amendment,3 the New Jersey State Constitution,4 and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) 42 U.S.C.A. 2000cc to 2000cc-5. We disagree and affirm.

Our scope of review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). In challenging an agency conclusion, the claimant carries a substantial burden of persuasion and the determination of the administrative agency carries a presumption of correctness. Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). We also accord substantial deference to the agency's interpretation of a statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

Further, "[w]e are obliged to defer to the [agency] when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. of Burlington Cnty. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal citations omitted). We overturn an agency determination only if it is arbitrary, capricious, unreasonable, unsupported by substantial credible evidence as a whole, or inconsistent with the enabling statute or legislative policy. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 71 (1985) (quoting Gloucester Cnty. Welfare Bd., supra, 93 N.J. at 391).

We analyze appellant's constitutional claims under the four-part test enunciated by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).

In Turner, the Supreme Court considered the proper standard under which courts are to review prison regulations that are challenged on constitutional grounds. The Court considered two somewhat competing principles, the first of which is that federal courts "must take cognizance of the valid constitutional claims" of inmates. Id. at 84, 107 S. Ct. at 2259, 96 L. Ed. 2d at 75. This judicial cognizance notwithstanding, courts must remember that they are "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Ibid. (internal citation omitted). Bearing these dual principles in mind, the Court concluded that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 89, 107 S. Ct. at 2261, 96 L. Ed. 2d at 79.

Thereafter, the Turner Court provided the following four factors to consider when applying its newly enunciated reasonableness standard:

First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it. . . . A second factor relevant in determining the reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right that remain open to prison inmates. . . . A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. . . . Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.

[Id. at 89-90, 107 S. Ct. at 2262, 96 L. Ed. 2d at 79-80 (citations omitted).]

Furthermore, the burden is not on the state to prove the validity of the challenged prison regulation but instead is on the inmate to disprove it. Overton v. Bazzetta, 539 U.S. 126, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) (applying Turner and upholding prison regulations limiting prisoner visitation rights). We are also cognizant of the substantial deference we owe to prison administrators "who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them." Id. at 132, 123 S. Ct. at 2167, 156 L. Ed. 2d at 170.

As we stated in Bernstein v. State, 411 N.J. Super. 316, 337 (App. Div. 2010):

Tempering a court's rigorous protection of inmates' constitutional rights is the fact that considerations of prison security are "peculiarly within the province and professional expertise of corrections officials," to which courts should give "wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S. Ct. 1861, 1878-79, 60 L. Ed. 2d 447, 474 (1979); see Blyther v. N.J. Dep't of Corrections, 322 N.J. Super. 56, 65 (App. Div.) (State officials should be given wide latitude in managing the "volatile environment" presented by prisons, and are accordingly afforded "appropriate deference and flexibility"), certif. denied, 162 N.J. 196 (1999). Courts should avoid venturing "too cavalierly into areas that are properly the concern of [prison] officials[,]" as the United States Supreme Court has emphasized "time and again . . . that [the] unguided substitution of judicial judgment for that of the expert prison administrators" is often "inappropriate." Bell, supra, 441 U.S. at 554, 99 S. Ct. at 1882, 60 L. Ed. 2d at 478; see also Blyther, supra, 322 N.J. Super. at 67 "[i]nvolvement of the courts in the day-to-day management of prisons would squander judicial resources with little offsetting benefit to anyone").

N.J.A.C. 10A:17-5.1 provides:

(a) Each inmate has the right to freedom of religious affiliation and voluntary religious worship while incarcerated, but the exercise of such right may be subject to reasonable restrictions related to penological interests in order to maintain the safe, secure and orderly operation of the correctional facility.

(b) Inmates in the general population of a correctional facility who desire to participate in a religious service, meeting or activity that has been approved by the Administrator or designee shall be permitted to do so unless there is a threat to the safe, secure or orderly operation of the correctional facility.

Inmates are afforded substantial rights to the free exercise of their religion. See N.J.A.C. 10A:17-5.1 to -5.22. However, such rights may be subject to reasonable restrictions related to penological interests.

A prerequisite to the application of Turner is that assertion of "only those beliefs which are both sincerely held and religious in nature are entitled to constitutional protection." DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000). The Constitution does not protect "mere assertion[s] of . . . religious belief[s]." Ibid.

Here, the DOC determined that appellant had not provided sufficient information to meet the burden necessary to compel prison officials to provide him with his requested diet. The denial letter advised appellant that any future requests "should include supporting documentation from appropriate sources that can substantiate that your claim is in fact religious in nature and a sincerely-held religious belief."

Applying the Turner four factor test to the appellant's contentions, we conclude that his argument that "the Hebrew Bible is replete with references of "New Moon" as an occasion of monthly festivals" is insufficient to adequately support his burden to demonstrate that the denial of the requested diet violates his constitutional rights or rights granted under RLUIPA. To the extent that we have not specifically addressed any of appellant's remaining contentions, we find that the decision of DOC is supported by sufficient credible evidence on the record, and appellant's contentions are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(D),(E).

1 Appellant's New Jersey State Prison Face Sheet Report indicates that he receives a Kosher diet.

2 The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I.

3 The Fourteenth Amendment reads in relevant part: "Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV.

4 Article I of the New Jersey Constitution states in pertinent part that "No person shall be deprived of the inestimable privilege of worshipping Almighty God. . . ." N.J. Const. art. I, 3.