KEITH BOWMAN v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1919-05T11919-05T1

KEITH BOWMAN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 24, 2006 - Decided November 15, 2006

 

Before Judges Skillman and Lisa.

On appeal from the New Jersey Department of Corrections, 205316.

Keith Bowman, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Keith Bowman, a New Jersey State Prison inmate serving a thirty-year without parole sentence for murder and other offenses, appeals from the November 15, 2005 decision of the Department of Corrections (DOC) continuing his placement in the Management Control Unit (MCU), where he has been placed since 1992. His placement stems from his participation on August 10, 1990 in a violent attack on correctional staff members and his membership in the Afriken National Ujamaa (ANU), which is designated as a terrorist group within the institution.

On October 14, 2005, the Management Control Unit Review Committee (MCURC) conducted a routine periodic review, see N.J.A.C. 10A:5-2.10(a), and appellant's required annual review. See N.J.A.C. 10A:5-2.11. Appellant appeared and made a statement on his own behalf, as permitted by N.J.A.C. 10A:5-2.10(c). The MCURC considered all relevant records and reports, as required by N.J.A.C. 10A:5-2.10(e), and maintained a written record of the proceedings, as required by N.J.A.C. 10A:5-2.10(b). Appellant also submitted a written statement.

The MCURC made this finding and decision in its Notice of Classification Decision on the routine review:

Mr. Bowman the Committee notes your written statement, as well as your program completions, positive housing reports, and charge free status. The MCURC notes your initial placement in the Management Control Unit due to your involvement in the violent attack on Staff members on August 10, 1990 as well as your January 31, 1996 assault on an inmate while housed in MCU. The MCURC considers all mentioned incidents an extreme concern and continues to pose a threat to the orderly running of any Correctional Facility.

Inmate Bowman, is assigned to [Phase II].

It is the decision of MCURC that Inmate Bowman should remain assigned to the Management Control Unit at this time.

In the Notice of Classification Decision on the annual review, issued the same date, the MCURC found that appellant met his initial burden of demonstrating the four criteria set forth in N.J.A.C. 10A:5-2.11(b), which then places the burden on the DOC to demonstrate through "substantial evidence including behavior and attitude adjustment and disciplinary history that the inmate continues to pose an identifiable threat" to the safety of others or of interrupting the secure or orderly operation of the prison. N.J.A.C. 10A:5-2.11(c). The MCURC found such substantial evidence established and made this finding and decision:

Despite the fact that the inmate has completed all of the programs and phases of MCU, it is the position of the MCURC that continued MCU placement is recommended since the New Jersey Department of Corrections inmate Bowman continues to pose an identifiable threat to:

x 1. The safety of others.

. . . .

x 3. The safety and security of the operation of the State Correctional Facility.

This Decision then set forth comments identical to the first paragraph we quoted from the routine review Decision, followed by: "The MCURC continues to encourage[] you on your positive adjustment in the Management Control Unit."

Appellant filed an administrative appeal of the MCURC decision. On November 15, 2005, Administrator Ronald H. Cathel issued the final agency decision, which stated in its entirety: "I have reviewed your MCU placement appeal and at this time, I will not intervene in the committee's decision." The appeal to this court followed.

Appellant presents these arguments:

POINT I

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S DECISION THAT THE APPELLANT WAS INVOLVED IN THE VIOLENCE THAT OCCURRED ON AUGUST 10, 1990 AGAINST CUSTODY STAFF MEMBERS WAS BASED ON "INSUFFICIENT EVIDENCE" IN THE RECORDS.

POINT II

THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S "INITIAL PLACEMENT" DECISION THAT THE APPELLANT IS A MEMBER OF THE AFRIKAN NATIONAL UJAMAA WAS BASED ON "INSUFFICIENT EVIDENCE" IN THE RECORDS.

POINT III

APPELLANT'S APPEAL OF THE MANAGEMENT CONTROL UNIT REVIEW COMMITTEE'S DECISION TO THE ADMINISTRATOR CATHEL WAS FLAWED, AND FAILS TO COMPLY WITH THE PROCEDURES PR[E]SCRIBED IN PURSUANT TO THE N.J.A.C. 10A:5-2.7(B).

The arguments in Points I and II address decisions made in 1990, adjudicating appellant guilty of a disciplinary infraction, and 1992, establishing his initial placement in the MCU. Those decisions are not before us on this appeal and are not subject to attack at this late date. In earlier decisions by this court, in which we have rejected appellant's appeals challenging his continued MCU placement, we have discussed more fully the basis supporting appellant's initial MCU placement and his continuation in that status. See Bowman v. N.J. Dept. of Corr., A-6314-02T5 (Apr. 1, 2004); Bowman v. Dept. of Corr., A-2231-04T5 (Oct. 11, 2005). We have no occasion to further discuss the arguments in Points I and II, which lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

In Point III, appellant argues that the final decision is deficient for failure to comply with N.J.A.C. 10A:5-2.7(b), which requires the administrator to consider:

1. Whether there was compliance with N.J.A.C. 10A:5-2.6;

2. Whether the decision of the MCURC was based on substantial evidence; and

3. Whether [the] decision rendered was appropriate to the inmate's case.

Appellant argues that the one-sentence final decision by the Commissioner failed to discuss these criteria and make appropriate findings based upon them, thus depriving him of his due process rights and preventing meaningful appellate review.

The Administrator expressed that he reviewed the MCU placement appeal, and by his statement that he would not intervene, he essentially adopted the MCURC recommendation as the final decision. His review of the appeal denotes a review of all matters pertinent to the appeal, including all of the records and reports that were considered by the MCURC, appellant's written statement, the decisions of the MCURC, and the materials submitted by appellant to the Administrator in his administrative appeal. By adopting the MCURC recommendation, the Administrator implicitly determined that all of the procedural requirements for MCURC hearings prescribed by N.J.A.C. 10A:5-2.6 were complied with and the MCURC decision was based on substantial evidence and was the appropriate decision in appellant's case. Although a more expansive final decision would have been advisable, we cannot say that the final decision here, when considered in light of the overall record, failed to comply with the regulations or deprived appellant of the process he was due.

We will not interfere with an agency's decision unless it is arbitrary or capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In particular, under the regulatory scheme applicable to MCU placement, once an inmate makes the required initial showing under N.J.A.C. 10A:5-2.11(b), the DOC must demonstrate by "substantial evidence" that the inmate continues to pose an identifiable threat to the safety of others or of interrupting the secure or orderly operation of the correctional facility. Substantial evidence is that which "a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). We are satisfied that standard was met in this case.

Affirmed.

 

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A-1919-05T1

November 15, 2006