GILBERT PEREZ v. TERRANCE MOORE, ADMINISTRATOR OF EAST JERSEY STATE PRISON, et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5119-04T3

GILBERT PEREZ,
 
Plaintiff-Appellant,

v.

TERRANCE MOORE, ADMINISTRATOR OF
EAST JERSEY STATE PRISON, and
ED KOSCHERA, See footnote 1 SUPERVISOR OF
MAINTENANCE DEPARTMENT,

Defendant-Respondents.
____________________________________________

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June 6, 2006

Submitted April 26, 2006 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New
Jersey, Law Division, Special Civil
Part, Union County, DC-000149-05.

Gilbert Perez, appellant pro se.
 
Zulima V. Farber, Attorney General, attorney
for respondents (Michael J. Haas, Assistant
Attorney General, of counsel; Karen L. Jordan,
Deputy Attorney General, on the brief).

PER CURIAM

Gilbert Perez, a state prison inmate, appeals from the dismissal of his suit in the Special Civil Part which sought damages against defendants Terrance Moore, Administrator of East Jersey State Prison and Ed Koschera, Supervisor of the maintenance department at East Jersey. Defendant's complaint was based on the loss of personal property in a fire at the prison. After rejecting a proposed administrative resolution of his claim, defendant initiated suit. The State's motion for dismissal was granted on the basis that defendant's claim amounted to an appeal of an administrative decision which was only cognizable in this court pursuant to R. 2:2-3(a)(2).
In an internal memorandum dated January 24, 2005 from the Executive Assistant/Litigation Liaison, generated as a result of this suit, See footnote 2 the background was summarized as follows:
The fire occurred in the middle of the night on 2/25/02 in the 6 Wing Trailer unit. The fire completely destroyed the 6 Wing trailers. There were no injuries to inmates or staff. The fire was brought under control by the fire departments from eight surrounding municipalities. Most of the inmate property and personal belongings on the South side were lost in the fire. Some of the North side property was salvageable if it was protected in a footlocker. Because of the high volume of water used to extinguish the fire, most electronics failed even after being cleaned.
The cause of the fire has not yet officially been determined, but initial reports have categorized the fire as accidental. The inmates were housed temporarily in the Visit Hall where inmates were given a complete issue of clothing and supplies. Administrator Moore directed the institutional staff (Supervisors, Storeroom & Commissary) to take whatever steps necessary to give the inmates [affected] by the fire everything they would need to get through the traumatic event. The complete issue of clothing, supplies and comfort items (care package) consisted of the following:

Hat
Coat
3 pair of pants
3 shirts
3 t-shirts
3 boxer shorts
3 pair of socks
gray bucket
2 rolls of toilet paper
pillow
pillow case
2 sheets
2 bars of soap
plastic spoon & fork
2 blankets
tooth brush
tooth paste
towel
wash cloth
boots
soda
potato chips
candybars (Baby Ruths, Reeses)
cookies
soup

Approximately sixty of the ninety-nine inmates were transferred to other facilities.
East Jersey State Prison immediately began receiving claims by inmates seeking reimbursement for lost property. The claims were investigated by a Lieutenant to determine whether the claim was legitimate. The inmate's inside property card and mailroom property card were used to verify the property. A Claims Committee was convened to make recommendations on the claims that were deemed legitimate.

The committee considered the lost property and assigned a depreciated value to the item. Once a depreciated value was established for an item, that value was used for all of the claims. For example, the committee decided that every inmate that lost a television in the fire would be granted $75.00 towards a new TV. Other examples were trimmers - $20.00 and stereos - $50.00.

Many of the inmates claimed that [they] had lost consumable items purchased through the Commissary. Since it was impossible to verify commissary items, inmates were given $15.00 towards essentials if their claim included lost commissary items. $15.00 is the value that the state uses [to] ensure that each inmate has enough money in his account to purchase toiletries. Items that were not approved were items that could not be verified or exceeded policy for inmate retention. Some inmates requested reimbursement for personal "street" eyeglasses. In such a case the inmate was given $5.00 to cover the co-pay required to receive state issued eyeglasses.

All of the inmates that completed an itemized claim were offered a settlement on their claim. The majority of inmates declined acceptance and chose to litigate the loss of property and personal belongings.
 
Pursuant to the procedures established by East Jersey for resolving inmate claims for lost, damaged or destroyed personal property, which implemented N.J.A.C. 10A:2-6.1 to -6.4, Perez submitted a timely claim for loss of a radio, TV, law books, a word processor, clothing and miscellaneous items totaling $2629.80. Using its depreciated values list, the Claims Committee assigned a value of $280 to Perez's claim. Thus, for example, while Perez valued his "Proton" radio at $499, the Committee allowed $50; a "Craig" TV valued at $159 was allowed $75; a word processor was assigned a $50 value whereas Perez claimed $399.
Perez declined the Department of Correction's (DOC) offer to resolve his claim and instituted suit in the Union County Special Civil Part. After itemizing his loses, which were said to have resulted from an "electrical fire," Perez continued as follows:
4. As the Administrator of East Jersey State Prison, Terrance Moore, defendant, had the duty to safeguard the property and personal effects of plaintiff and to prevent their destruction by fire or the like.

5. Defendant Terrance Moore failed in the duty of due care to safeguard the property and personal effects of the plaintiff.

6. Defendant's administration at East Jersey State Prison knew their duty and tried to settle and offered . . . plaintiff an unreasonable amount on behalf of defendant.
 
As noted, Perez demanded $2629.80 in damages.
The State moved to dismiss the suit, arguing that the complaint was in reality an appeal from the denial of an administrative action - the valuation of Perez's claim - which is only cognizable in this court pursuant to R. 2:2-3(a). Perez cross-moved for judgment on liability, i.e., defendant's responsibility for the fire, arguing that "the only issue in dispute is the amount of damages plaintiff should be awarded." The motion judge agreed with the State and dismissed the complaint, citing Pascucci v. Vagott, 71 N.J. 40, 51-52 (1976); Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 459-60 (App. Div. 1997), aff'd, and modified on other grounds, 154 N.J. 19 (1998); and Mutschler v. N.J. Dep't of Envtl. Prot., 337 N.J. Super. 1, 9-10 (App. Div.), certif. denied, 168 N.J. 292 (2001).
First, we agree with the State that since it offered to settle Perez's claim and did not dispute liability, his cross-motion was essentially moot. Indeed, while the State asserts, in a footnote, that its decision to approve Perez's claim "was not an admission of that liability," the regulation setting up the claims procedure provides that one factor to be considered in recommending approval or disapproval of claims is "whether the investigation revealed any neglect by the correctional facility." N.J.A.C. 10A:2-6.2(a)1. From this we may assume that if the State was of the view that it had no liability, it would not have offered to resolve the claim.
In any event, since the issue was the amount of the offer arising from an administrative decision, we agree that resort to the trial court was improper and Judge Fasciale was entirely correct in dismissing the complaint. Accordingly, we affirm that decision.
However, in recognition of the obvious fact that we could treat Perez's lawsuit as an appeal from an agency decision, the State alternatively urges that the administrative decision is supportable under the traditional standard of review, which looks to whether it was arbitrary, capricious or unreasonable. Brady v. Dep't of Pers., 149 N.J. 244, 255-56 (1997). We agree that reviewing the agency decision on its merits is the most sensible resolution of the matter. In that regard, it must clearly and convincingly appear that the agency abused its discretion. Trantino, supra, 154 N.J. at 25.
The State defends the Claims Committee action, arguing that it reflected an "organized and fair approach to the deluge of lost property claims after the fire," including the application of "consistent values" to "property commonly claimed to have been lost by inmates in the fire," all within DOC's broad authority to manage the prisons, N.J.A.C. 30:1B-6(a) and (e), and to care for the inmates under its control and supervision. N.J.A.C. 30:18-3.
While we are sympathetic to the DOC's concerns, those concerns cannot justify a failure to provide adequate compensation to inmates for loss of their personal property resulting from DOC's negligence. The assignment of "consistent values" to certain larger items, such as Perez's radio, TV and word processor, in actuality amounts to an assignment of arbitrary values to that property. By definition, such agency action is arbitrary and therefore an abuse of the discretion reposed in the agency. While an individualized valuation of property may have been burdensome, the necessity for such an evaluation resulted from DOC's failure to protect that property from harm.
The record does not suggest that the valuations in question approached replacement value, even taking into account depreciation due to age and condition. How could Perez replace all of his property for $280? The question seems to answer itself. As a result, we remand for the purpose of allowing DOC to explain how it arrived at the "consistent values" assigned to the inmates' property and/or to reevaluate Perez's claim based on information from whatever source as to the actual value of his property and to tender a new offer based on such facts.

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Affirmed as to dismissal of Special Civil Part complaint; remanded to DOC for further proceedings. We do not retain jurisdiction.
 
Footnote: 1 The respondent's name is also spelled as Kocserha.
Footnote: 2 Defendants have provided a copy of the memorandum in their appendix.

A-5119-04T3