RICHARD J. SPILLANE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RICHARD J. SPILLANE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

November 15, 2016

Submitted September 29, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from New Jersey Department of Corrections.

Richard J. Spillane, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Alex Zowin, Deputy Attorney General, on the brief).

PER CURIAM

Richard Spillane is an inmate serving a life sentence with a thirty-year term of parole ineligibility for two murder convictions. He appeals from the September 4, 2013 final agency decision denying his transfer to a residential community release program (RCRP) and a January 16, 2014 decision denying his petition for rulemaking. We affirm.

Spillane has been in prison for over thirty years. On April 12, 2012, Spillane's custody status was reviewed by respondent, the New Jersey Department of Corrections (the Department) Institutional Classification Committee (ICC). His objective classification score was a "0," which rendered him eligible for placement into minimum custody status. However, pursuant to N.J.A.C. 10A:9-2.14(a), if an inmate cannot be assigned to the recommended custody status associated with the custody status score on the Reclassification Instrument, the appropriate override code shall be applied. In this case, the use of a "K6" override code kept Spillane in medium custody status because of a reasonable belief that he would be unsuccessful in a lower custody status.

On October 27, 2012, Spillane wrote to the Department's Institutional Community Release Program Coordinator requesting a transfer to a halfway house or RCRP. On November 28, 2012, he received a memo outlining the prerequisites to the Halfway House Program, advising him that anyone interested in community release should first request reduction in status to Full Minimum Custody through the classifications department. Moreover, an inmate must be within twenty-four months of either his parole eligibility date or "max" date and be charge free for ninety days. Spillane did not meet the prerequisites for entry into the program.

On February 8, 2013, Spillane submitted a request for a rule exemption regarding the requirement he be classified to full minimum custody before applying for transfer to RCRP.

On September 4, 2013 the ICC met with Spillane and after reviewing his request, recommended denial of the rule exemption because Spillane was assigned to medium security status and had been eligible for a lower custody status but was refused. He had no family, monetary, housing or emotional assistance for re-entry into civilian life, had not maintained a steady job while in prison, except for the lowest level jobs and had not reached parole eligibility. Spillane refused to participate in required psychological testing during his yearly custody status review, claiming his refusal was based on the length of his sentence and because he preferred to be assigned to a single cell, which he was likely to lose if he had minimum custody status.

On October 5, 2013, Spillane filed an Inmate Remedy Form inquiring about the status of his rule exemption petition. On October 8, 2013, the Department advised him his exemption petition had been denied. On January 6, 2014, Spillane submitted a petition for formal rulemaking, proposing to eliminate the prerequisite of full minimum custody for inmates applying for RCRP in N.J.A.C. 10A:9-4.3(f)1 and N.J.A.C. 10A:20-4.4(a)(1). Spillane also proposed N.J.A.C. 10A:20-4.8(a)2 be amended so an inmate may attach to Form 686-I a personal letter and letters from other interested persons and organizations, advocating for the inmate's participation in an RCRP to the ICC.

On March 4, 2014, Spillane wrote to the Department's Office of Administrative Law inquiring as to the status of his petition for rulemaking. On March 21, 2014, the Department confirmed receipt of the petition and that it would be published in the 2014 New Jersey Register. On April 25, 2014, the Department advised Spillane his petition had been denied. This appeal followed.

On appeal Spillane argues the following

POINT I.

THE FULL MINIMUM PREREQUISITE VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

POINT II.

THE FULL MINIMUM PREREQUISITE VIOLATES INMATE'S NATURAL AND UNALIENBALE RIGHTS TO ENJOY AND DEFEND LIBERTY. N.J. CONST. ART.I. SEC.1.

POINT III.

THE FULL MINIMUM PREREQUISITE VIOLATES THE NEW JERSEY COURTS' DOCTRINE OF FUNDAMENTAL FAIRNESS.

POINT IV.

THE FULL MINIMUM PREREQUISITE VIOLATES STATE AND FEDERAL CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT.

POINT V.

THE [DEPARTMENT'S] FULL MINIMUM PREREQUISITE IS ARBITRARY, CAPRICIOUS, AND UNREASONABLE.

POINT VI.

THE DENIAL OF MY RCRP APPLICATION IS ARBITRARY, CAPRICIOUS AND UNREASONABLE, AND FURTHER VIOLATES THE STATE AND FEDERAL CONSTITUTIONS, AND FUNDAMENTAL FAIRNESS.

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. ofCorr., 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 byProgressive Cas. Ins. Co., 307 N.J. Super.93, 102 (App. Div. 1997)). We have noted the Legislature has provided for the broad exercise of the Department's discretion in all matters regarding the administration of a prison facility. Russo v. N.J. Dep't ofCorr., 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.

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).

Moreover, "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Smith, supra, 346 N.J. Super. 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. 1987), modified sub nom, Jenkins v. Fauver, 108 N.J. 239 (1987).

We reject Spillane's argument that the "full minimum prerequisite" violates concepts of fundamental fairness, the requirements of the United States Constitution, the New Jersey Constitution, and is arbitrary, capricious or unreasonable. The imposition of prerequisites establishes an inmate's progression and ensures the safety and security of the institution and prepares an inmate for his or her ultimate release to society. The denial of Spillane's placement into RCRP because he could not meet the defined prerequisites neither violates his constitutional rights, nor amounts to additional punishment. The denial of placement was based upon discrete factors considered by the ICC as outlined above and was not arbitrary, capricious, or unreasonable.

Affirmed.
 

1 N.J.A.C. 10A:9-4.3(f) states, "[i]nmates must be classified as "community custody status" in order to participate in residential community programs (see N.J.A.C. 10A:20). Community custody status may require periodic supervision in the community as appropriate to circumstances of work or activities. Full minimum custody status is a prerequisite to obtaining community custody status."

2 N.J.A.C. 10A:20-4.8(a) states, "[a]n inmate interested in participating in a Residential Community Release Program shall complete and sign all sections of the Form 686-I Community Program Application and submit it to the Institutional Community Release Program Coordinator for review."