KEITH MURPHY 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NOT FOR PUBLICATION WITHOUT THE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

KEITH MURPHY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

September 28, 2015

Submitted September 16, 2015 Decided

Before Judges Simonelli and Carroll.

On appeal from the New Jersey Department of Corrections.

Keith Murphy, appellant pro se.

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

PER CURIAM

Keith Murphy, an inmate presently serving a five-year sentence at Southern State Prison, appeals from a final Department of Corrections (DOC) decision that denied him full minimum custody status and continued his gang minimum custody status. We reverse and remand for further proceedings consistent with this opinion.

The DOC has six custody status categories: close custody, maximum custody, medium custody, gang minimum custody, full minimum custody, and community custody. N.J.A.C. 10A:9-4.1(a). Pertinent to this appeal, inmates classified as "'full minimum custody status' are those assigned to: 1. [w]ork details, jobs or programs . . . on or off the grounds of the facility[] with minimal supervision." N.J.A.C. 10A:9-4.3(e)1. In contrast, inmates classified as "gang minimum custody status" are limited to "the grounds of the facility [] under continuous supervision of a custody staff member, civilian instructor or other employee authorized to supervise inmates." N.J.A.C. 10A:9-4.3(d).

Upon admission to the prison facility, an inmate begins the initial classification process. N.J.A.C. 10A:9-2.1. At the end of that process, a male inmate appears before the Institutional Classification Reception Committee (ICRC), where his custody status and correctional facility assignment are decided. N.J.A.C. 10A:9-2.1(f).

The Institutional Classification Committee (ICC) periodically reviews and can change an inmate's initial classification and custody status. N.J.A.C. 10A:9-3.5(e), -4.4(a). In so doing, the ICC utilizes an objective reclassification scoring instrument for male inmates, which includes assessment scales that are used to generate the inmate's reclassification score. N.J.A.C. 10A:9-2.2(a)3, (b). The assessment scales are: severity of the offense scale, escape history scale, institutional violence scale, prior felony convictions scale, stability factors scale, number of disciplinary reports scale, severity of offense - disciplinary infractions scale, current age scale, and program participation scale. N.J.A.C. 10A:9-2.2(b). In reviewing those scales, the ICC must assess and assign points to certain objective criteria, including the following

Severity of offense based on the most serious offense in the present commitment . . . .;

Prior assaultive offense history based on the most serious assaultive offense in the last 10 years of criminal history . . . .;

History of institutional violence . . . during the previous five years of incarceration . . . .;

Escape history during the previous five years of incarceration from the date of review regardless of the age or legal status of the inmate . . . .;

Number of disciplinary reports within the previous 18 months of incarceration prior to review . . . .;

Most severe disciplinary infraction received in the previous 12 months of incarceration . . . .;

Current age . . . .; and

Program participation in correctional facility programs during the current admission.

[N.J.A.C. 10A:9-2.6(b).]

The total points determine the custody status score on the reclassification instrument for male inmates. N.J.A.C. 10A:9-2.6(a). An inmate's score of four points or less "shall indicate a recommendation for placement into minimum custody status." N.J.A.C. 10A:9-2.6(a)3. The ICC must consider all relevant factors in the reclassification process, including the objective reclassification score and the inmate's prior criminal history. N.J.A.C. 10A:9-4.5(a)2, 6.

Consistent with N.J.A.C. 10A:9-3.5, the ICC conducted a periodic review of Murphy's custody status on March 13, 2014. The ICC issued a reclassification instrument that contained the following scores

Severity of Current Offense: 0

Prior Assaultive Off. History-Last 10yr 2

Escape History-Last 5yr incarceration 0

History of Institutional Viol.-Last 5 yr 0

Number of Disciplinary Reports -2

Most Severe Disciplinary-Last 12 mth 0

Age 0

Program Participation -2

_____

Total Score -2

Notwithstanding Murphy's extremely low objective reclassification score, the ICC voted unanimously to deny him full minimum custody status. In a space reserved on the form for explaining the committee members' respective reasons for denying Murphy reduced custody status, each member wrote only "criminal history."

On April 20, 2014, Murphy submitted an inmate remedy system form requesting clarification of the ICC's decision to deny him full minimum status. Murphy added that the denial, based solely on his criminal history, was tantamount to a permanent disqualification because his criminal history was never subject to change. On April 29, 2014, an administrative analyst from the DOC's Division of Operations responded that the ICC's consideration of Murphy's criminal history was justified because studies showed it to be a valid risk indicator.

On May 20, 2014, Murphy filed an administrative appeal challenging the reclassification decision as arbitrary, capricious, and fundamentally unfair. On May 22, 2014, an Associate Administrator upheld the ICC's determination. This appeal followed.

On appeal, Murphy renews his contention that the DOC's decision to deny him a reduced custody status is arbitrary, capricious and unreasonable. We agree.

Although an inmate has no right to reduced custody status, N.J.A.C. 10A:9-4.2, and the ICC is not obligated to grant full minimum custody status even if an inmate qualifies, N.J.A.C. 10A:9-4.6(c), the DOC's decision to deny reduced custody status must not be arbitrary, capricious or unreasonable, or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); White v. Fauver, 219 N.J. Super. 170, 180 (App. Div.), modified sub. nom., Jenkins v. Fauver, 108 N.J. 239 (1987).

Here, the only justification provided by the ICC for denying Murphy full minimum custody status was his criminal history, without further elaboration. Such circular reasoning defies meaningful review for the obvious reason that prison inmates always have criminal histories. Aside from that bald statement, there is nothing in the record to suggest that the ICC considered any of the factors set forth in the applicable regulations. Nor is there any documentation supporting the ICC's determination to override Murphy's objective score.

For the first time on appeal, the DOC submits that the denial was also based on Murphy's juvenile history. However, Murphy was thirty-eight years old at the time of his March 13, 2014 status review. According to his presentence report, Murphy's juvenile record reveals that he pled guilty to aggravated sexual assault in 1992 and was placed on probation. Because this juvenile conviction was more than ten years old, it could not be considered. N.J.A.C. 10A:9-2.6(b)2. Additionally, to the extent that the ICC relied on this adjudication, it did not obtain a current psychiatric or psychological evaluation, as required when considering inmates whose past history involves sexual offenses. N.J.A.C. 10A:9-4.5(b). Further, the ICC did not assign any points to the juvenile adjudication, as required by N.J.A.C. 10A:9-2.6(a), leaving Murphy's objective reclassification score at minus two, which qualifies him for a reduced custody status. For all these reasons, we conclude that the DOC's decision to deny Murphy reduced custody status is arbitrary, capricious, and unreasonable.

Reversed and remanded with direction to reduce Murphy's inmate custody status to full minimum. We do not retain jurisdiction.