JOHN MCGILL 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NOT FOR PUBLICATION WITHOUT THE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-02541-13T1

JOHN MCGILL,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

-

May 12, 2016

Before Judges Reisner and Hoffman.

On appeal from the New Jersey Department of Corrections.

John McGill, appellant pro se.

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

PER CURIAM

John McGill, an inmate at East Jersey State Prison, appeals from the decision of the New Jersey Department of Corrections (DOC) to confiscate a textbook and study guide on policing. McGill contends that the prison violated his First Amendment and Due Process rights, and that the decision was "arbitrary, capricious, and unreasonable," and not reasonably related to legitimate penological interests. After consideration of the arguments made and our review of the record, we affirm.

On January 25, 2013, a mailroom officer confiscated a college packet containing the two books, indicating that it "[m]ay be harmful and/or poses a threat to the security or orderly operation of the correctional facility." On February 22, 2013, McGill was issued a contraband receipt, which described the packet as related to a "college course not approved by Education Dept." Notably, on May 6, 2012, McGill had signed the East Jersey State Prison Education Department College Correspondence Rules and Regulations Agreement Form (College Agreement), which required, among other things, that the Supervisor of Education approve every college course an inmate takes. McGill appealed the confiscation to the prison administrator, unsuccessfully asserting that the books were part of an undergraduate program, and most of the material was public knowledge available in the prison law library.

McGill then appealed to this court. On September 16, 2013, we remanded the matter on the DOC's motion to address McGill's objection to its confiscation of his books. On December 16, 2013, a prison associate administrator issued a final administrative decision, notifying McGill that the books were confiscated pursuant to N.J.A.C. 10A:3-6.21 and on the grounds that "(1) the courses were not approved by East Jersey State Prison or the Department of Corrections; and (2) due to the safety/security concerns over the subject matter." The decision was reconfirmed on March 13, 2014.

Pursuant to N.J.A.C. 10A:18-4.9(a), an inmate may not receive publications within these categories

2. The publication contains information on the following subjects that, based upon the experience and professional expertise of correctional administrators and custody staff and judged in the context of a correctional facility and its paramount interest in security, order and rehabilitation, is detrimental to the secure and orderly operation of the correctional facility

. . . .

vi. Anything that might pose a threat to the security or orderly operation of the correctional facility.

McGill asserts he is an inmate paralegal, taking a policing course as part of a study program to obtain an associate's degree in criminal justice. He contends the seized books were his course materials, and contained nothing that could threaten the prison's security. The DOC submits the administrator reviewed the books and determined that, because of the subject matter, they may pose a threat to the safety, security, and order of the facility, as the books are instructional materials relating to police practices.

We "will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). We conclude the DOC's procedure to review in advance any courses an inmate takes from an outside source is not arbitrary, capricious, or unreasonable. By signing the College Agreement, McGill agreed to provide the DOC with the courses he would take each semester. Because McGill failed to advise the DOC he was taking the policing course, the DOC was denied the opportunity to review the course and its course materials for appropriate content. The record contains adequate evidence that McGill failed to follow this procedure.

Our review of the record also satisfies us that McGill was accorded the requisite due process in the proceedings against him. SeeAvant v. Clifford, 67 N.J.496, 525-33 (1975). We likewise reject McGill's First Amendment argument. "In a prison context, an inmate does not retain those First Amendment rights that are 'inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Jones v. N.C. Prisoners' Labor Union, 433 U.S. 119, 129, 97 S. Ct. 2532, 2540, 53 L. Ed. 2d 629, 641 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S. Ct. 2800, 2804, 41 L. Ed. 2d 495, 501 (1974)).

Accordingly, we affirm, but without prejudice to McGill's right to reapply for permission to take the course with the accompanying books. Because the record is unclear whether the books were actually reviewed in the context of McGill's college curriculum and what was being taught, we do not address this issue.

Affirmed.

1 The decision inadvertently refers to N.J.A.C. 10A:2-6.2; the DOC acknowledges "it should refer to N.J.A.C. 10A:3-6.2, which governs the disposal of contraband personal property." The DOC's brief also cites N.J.A.C. 10A:18-4.9(a)(2)(vi), however, it did not refer to that regulation in its original decision.