ROBERT SMALL 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NOT FOR PUBLICATION WITHOUT THE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

ROBERT SMALL,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

June 22, 2015

Submitted May 20, 2015 Decided

Before Judges Fuentes and Ashrafi.

On appeal from The New Jersey Department of Corrections.

Robert Small, appellant pro se.

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

PER CURIAM

Appellant Robert Small is an inmate at the New Jersey State Prison (NJSP). He appeals from a final determination of the Department of Corrections denying his claim for reimbursement for lost or destroyed property, specifically two "floppy discs" used to store computer data. We affirm.

On January 2, 2013, appellant requested the NJSP's Business Manager to deduct $40 from his inmate account and remit this amount to a vendor identified as Robert W. Collis, Jr. to cover the cost of purchasing computer supplies, namely printer ribbons valued at $36 and two floppy discs valued at $4. The vendor's shipping invoice dated January 11, 2013, indicated that four printer ribbons, at a cost of $9 per ribbon for a total of $36, and two floppy discs, at a cost of $2 per disc for a total of $4, were shipped to appellant at the NJSP. The invoice also reflected additional charges in the form of a $4 freight charge and a $2.80 sales tax, making the total cost $46.80.

An NJSP "Inmate's Package Invoice and Contraband Seizure Receipt" dated January 15, 2013, documented the receipt of only four printer ribbons without making any reference to the two floppy discs. On January 22, 2013, appellant filed an "Inmate Claim for Lost, Damaged, or Destroyed Personal Property" to document a claim for the two floppy discs. In the claim form, appellant acknowledged receipt of the four printer ribbons, but noted that the vendor's invoice included the two floppy discs as part of the same shipment.

On June 14, 2013, appellant filed an "Inmate Remedy System Form" noting "[i]t has been approximately five (5) months and I have yet to receive a reply to that Inmate Claim Form." In a handwritten reply dated July 3, 2013, a representative of the NJSP responded that the claim "was denied on 2/5/2013 to which a copy was sent to you via mail." Appellant denied receiving any notice concerning the disposition of his claim and requested a copy "so [he] [could] appeal it to the courts."

The appellate record provided by respondent includes a copy of a "Disposition of Inmate Claim" form dated February 5, 2013, sent to appellant by NJSP Administrative Lieutenant Gerdes, which indicated that the claim had been denied for the following reasons: (1) "Sufficient information has not been supplied by the inmate, including proper receipts, witnesses and investigative reports[;]" and (2) "The investigation revealed no neglect by the Correctional Facility." Lieutenant Gerdes's decision to deny the claim was based on a report dated February 1, 2013, sent to him by Sergeant Danielson in which he confirmed that the NJSP "only received . . . 4 print ribbons. No Floppy Discs were included in this package."

On appeal to this court, appellant argues the prison authorities failed to safeguard his property and are therefore responsible for his loss. N.J.A.C. 10A:2-6.1 obligates prison authorities to investigate a claim filed by an inmate alleging the destruction or loss of personal property. N.J.A.C. 10A:2-6.2(a) describes the factors an administrator must consider to determine the merits of the claim

1. Whether the investigation revealed any neglect by the correctional facility;

2. Whether care was exercised by facility staff preventing property loss, damage or destruction;

3. Whether the inmate exercised care in preventing property loss, damage or destruction;

4. Whether it has been proven that the inmate was authorized to have and did, in fact, possess the item(s) named in the claim;

5. Whether sufficient information has been supplied by the inmate, including proper receipts, witnesses and investigative reports;

6. Whether the inmate submitted the claim in a timely manner;

7. Whether the loss or damage exceeds authorized amounts of correctional facility personal property limits;

8. Whether the personal property is considered contraband; and

9. Whether other reviewers recommended denial of the claim and the reasons therefor.

Appellant argues that factors two, four, and five are applicable here because NJSP staff did not exercise sufficient care to prevent the loss of his property, there is no question he was authorized to have the items named in the claim, and he presented sufficient information and documentation, "including proper receipts," that the discs were shipped by the vendor. Respondent argues that appellant has not presented competent evidence to refute that prison staff only received the four printer ribbons as reflected in the shipment receipt form.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999). We will not overturn the determination of an administrative agency absent a showing that the decision was arbitrary, capricious, or unreasonable, or that it lacked fair support in the record. Barrick v. State, 218 N.J. 247, 259 (2014). "That standard is applicable on appellate review of an administrative agency's actions regardless of whether that action followed a quasi-adjudicative hearing or, as in this case, an assessment of the relevant submissions and standards by an administrative head." Ibid.

Applying this standard of review to the facts presented here, we are satisfied appellant has not met his burden of proof. Without more, the evidence, at best, stands in equipoise. The NJSP shipment document showing receipt of only four printer ribbons counterbalances the vendor's confirmation document reflecting that two floppy discs were included in the shipment. Thus, appellant cannot satisfy the burden of showing that NJSP staff negligently mishandled or deliberately misappropriated his property.

However, even appellant's own evidence can be viewed as supporting the NJSP's position. The vendor's shipment document showed that the total cost of appellant's order was $46.80. This amount was broken down as follows: $40 as the cost of the items; $4 in shipping costs; and $2.80 in sales tax. Appellant authorized the NJSP to remit only $40 to the vendor. Under these circumstances, it is reasonable to infer the vendor decided to ship only the printer ribbons, which cost $36, and devote the remaining $4 to cover at least some of the additional costs involving shipping and sales tax. However, as stated earlier, we need not engage in this speculative exercise because appellant has not presented sufficient evidence to rebut respondent's position.

Affirmed.