JEFFREY WILSON v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2401-04T22401-04T2

JEFFREY WILSON,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________________________

 

Submitted July 12, 2005 - Decided

Before Judges Fuentes and R. B. Coleman.

On appeal from a Final Decision of the Department of Corrections.

Jeffrey Wilson, appellant pro se.

Peter C. Harvey, Attorney General, attorney for appellant; Michael J. Haas, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief.

PER CURIAM

Petitioner, Jeffrey Wilson #281665, appeals from a disciplinary sanction imposed by the Department of Corrections for committing prohibited act .703, correspondence or conduct with a visitor in violation of regulations. N.J.A.C. 10:A4-4.1(a).703. Although the hearing officer determined that petitioner's discipline history, adjustment and demeanor warranted leniency - petitioner received a verbal reprimand and thirty days loss of contact visits, suspended for sixty days, subject to being vacated entirely if he does not re-offend - petitioner has appealed, and we reverse.

Petitioner is an inmate at Riverfront State Prison. The prison uses a gymnasium with chairs set up for the prisoners to meet with their visitors. A small area of the gymnasium called the "concession stand" provides tables and microwaves for the heating of food brought by the visitors.

The disciplinary report charged petitioner with violation of Page 30 of the I/M/S Handbook, Sections 5 and 7. Section 5 relating to approval of visitation by ex-inmates, is not applicable to the facts of the case. The Handbook provides:

C. Visit Card (Who May Visit)

7. You are not permitted to have any visitor who is on another inmate's visit card. The only exception to this rule would be a visitor related to more than one inmate and a member of the immediate family. Approval must be received from the Administrator.

The facts are not disputed. On December 26, 2004, petitioner, while returning from the concession stand, stopped and engaged in a conversation with another inmate and his visitor for approximately two and one half minutes. According to petitioner, the incident occurred as follows:

I was returning from the microwave area with a cup and two plates balanced in my hands. Jules called me to where he was sitting to meet his daughter. He explained to her that I was helping him with the child support reduction in Superior court. His daughter present in the visiting room was the subject of the court proceedings. I wished them a Merry Christmas and returned to my visitor.

This account is not disputed by the Department of Corrections.

We recognize that our review of an agency's decision regarding the interpretation of a rule or regulation is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We will only reverse its decision "if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We also recognize "[t]he courts must afford appropriate deference and flexibility to corrections officers trying to manage a volatile environment." Hamilton v. New Jersey Dep't of Corrections, 366 N.J. Super. 284, 288 (App. Div. 2004) (citations omitted). In the present matter, we hold, nevertheless, that petitioner's actions were not covered by the regulation.

The rule or regulation contained in the handbook merely states that an inmate is not permitted to have any visitor who is on another inmate's visit card. That regulation does not expressly define the term "visit," though the reporting officer appears to have attached significance to the fact that the inmate sat with the other inmate and his visitor. We hold the construction applied in this case is unreasonable, even in a prison environment. Here, petitioner was in the midst of an errand when he was introduced to another inmate's visitor with whom he exchanged holiday greetings. He briefly spoke to that inmate and his visitor for what was estimated to be two and one half minutes before returning to his own visitor. The regulation does not explicitly declare that such conduct shall be cause for discipline.

The Department of Corrections' reason for such a rule is not stated, but it can be inferred that the rule is intended to control the flow of visitors in the gymnasium and to avoid disputes that might arise where one inmate disrupts or intrudes upon another inmate's visitation. The relatively quick exchange petitioner had was not disruptive and did not have any negative effect on the flow of visitors. Further, petitioner's interactions with the other inmate and his visitor, done in full view of the guards, was invited and limited.

As construed by the Department of Corrections, the rule does not provide a clear understanding that petitioner's actions were inappropriate. If the Department of Corrections truly intends to prevent inmates from sitting with or engaging in any contact or communication whatsoever with another prisoner's visitor(s) in the gymnasium, the rule should be re-written to express more precisely what is prohibited.

Reversed.

 

Section 4 of that page of the handbook, which was not charged, provides "you are not permitted to have someone who is related to another inmate visit you or put on your visit card."

In the disciplinary report, the charging officer asserts that petitioner, "instead of returning to sit with his visitor, [] sat with [another I/M] and his daughter, carried a conversation for approximately 2 minutes . . . . This I/M was advised of this infraction on several occasions before."

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5

A-2401-04T2

November 23, 2005