THOMAS E. THOMPSON v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0494-07T10494-07T1

THOMAS E. THOMPSON,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________________________

 

Submitted September 8, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

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

Thomas E. Thompson, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Thomas E. Thompson, an inmate at South Woods State Prison (SWSP), appeals from the imposition of minor discipline, pursuant to which he was sanctioned with a loss of recreation privileges for a period of three to five days for each of three charges. Thompson contends that the charges were unconstitutionally vague in that he was found guilty of violating a rule or regulation contained in the Inmate Handbook where the rule or regulation does not specify that noncompliance will result in the imposition of discipline. We affirm the final decision of the Department of Corrections (DOC).

At the heart of this appeal is Regulation 2 of the General Housing Regulation contained in the Inmate Handbook promulgated by SWSP. Regulation 2 provides "all inmates' cell doors are to be closed and secured at all times except for entering and exiting the cell." Though he questions whether every inmate receives it upon arrival at SWSP, Thompson acknowledged he received the Inmate Handbook. He emphasizes that Regulation 2 and most others in the Inmate Handbook do not state that violation, noncompliance or breach of the regulation may result in disciplinary charges. Thompson, therefore, argues the regulation is ambiguous as a basis for disciplinary action and it is unconstitutional to the extent it requires that the inmates close the door on themselves and their cellmates. He argues the responsibility for safety and security rests exclusively with the corrections officers, and not with the inmates. Finally, Thompson contends the third charge served upon him was downgraded from a major discipline charge to an on-the-spot correction without the issuance of a new written charge. This, he contends, deprived him of due process. He does not contend that he was not informed of the charges against him, but rather that the institution had failed to adhere to strict procedural requirements.

The DOC, in its responding brief, stresses that minor infractions involve slight punishment for which the process due the inmates is a conference at which the inmate has a right to appear, to review and appeal the disciplinary report, discuss the violation, present arguments regarding the disciplinary action and challenge the proposed sanctions. See N.J.A.C. 10A:4-7.2. It contends Thompson was provided with all those due process rights.

At the outset, we acknowledge the limited scope of our review:

Traditionally, the judicial scope of review of an administrative rule is whether that rule is arbitrary or capricious. Put another way, is the rule unreasonable or irrational? Agency regulations are accorded presumptions of validity and reasonableness. The burden is on the plaintiff to overcome these presumptions.

[Bergen Pines Hosp. v. Dept. of Human Serv., 96 N.J. 456, 477 (1984) (internal citations omitted).]

The Commissioner of the Department of Institutions and Agencies has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside prisons and correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dept. of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999). Although prisoners are not without constitutional protection, they "are not entitled to the same level of due-process rights as free persons . . . ." McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Since due process is flexible, "[o]nce it is determined that due process applies, the question remains what process is due. Avant v. Clifford, 67 N.J. 496, 522 (1975).

Minor infractions, or on-the-spot-corrections, "involving slight punishment such as verbal reprimand, temporary withdrawal of privileges or brief confinement to tier," are distinguishable from those "disciplinary matters which may subject an individual to 'grievous loss' by way of punishment for serious misconduct." Id. at 518-19. For minor infractions, adequate notice and opportunity for the inmate to contest the disciplinary action constitute sufficient procedural protections. Id. at 519. That has been accorded to the inmate in this instance. We find no merit to the contention that the regulation is unconstitutional for requiring inmates to close their cell doors, or unconstitutionally vague, or that the procedural protections for those accused of violating it are inadequate. The regulation is not deficient or unenforceable solely because it does not give any specific warning that an inmate's failure to heed may result in disciplinary action. This is particularly true where N.J.A.C. 10A:4-4.1.709 provides that an inmate who commits one or more of the prohibited acts listed therein shall be subject to disciplinary action for "failure to comply with a written rule or regulation of the correctional facility."

With regard to the inmate's claim that the institutional regulation is void for vagueness in the construction of a criminal law, the law "violates due process if persons 'of common intelligence must necessarily guess at its meaning and differ as to its application.'" State v. Afanador, 134 N.J. 162, 170 (1993) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)). However, the degree of vagueness that is constitutionally tolerable, "'depend[s] in part on the nature of the enactment.'" Ibid. (quoting Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982)). While "certain minimum standards of specificity in prison regulations" must be met, the degree of specificity required is not "as strict in every instance as that required of ordinary criminal sanctions. This results from the fundamental difference between normal society and prison society." Meyers v. Alldredge, 492 F.2d 296, 310 (1974). "'Prisoners, unlike free men, must well know that they are considered potentially dangerous men and must expect to be highly regimented. In such cases the law requires less in the way of notice, and places a greater burden on the individual to make inquiry or ask permission before acting.'" Id. at 311 (quoting Landman v. Royster, 333 F. Supp. 621, 655-56 (E.D. Va. 1971)).

The regulation requiring the inmates to close or to keep their cell doors closed and secured at all times except for entering and exiting is not so vague that a person of common intelligence would not understand its meaning. To the extent Thompson contends that closing the cell doors should be a function performed exclusively by the prison staff, he is expressing a reluctance to cooperate with or to obey an objectively reasonable rule, order or directive that does not impose more than a slight burden upon him or other inmates. To grant the inmate the prerogative to refuse with impunity to close his own cell door would, by contrast, increase dramatically the burden upon corrections officers; it would breed inefficiencies and potentially would expose the officers to greater risks during the performance of an otherwise routine task.

Given the presumptive validity of the regulations, the very slight imposition upon the inmate and the potential negative effects that would flow from our acceptance of Thompson's arguments, we roundly reject those arguments. We perceive no arbitrariness or unreasonableness in Regulation 2, and we are satisfied from our review of the arguments of the parties and of the record that Thompson has received all the process he is due under the circumstances. Any further arguments raised by Thompson that are not specifically addressed in this opinion are so lacking in merit that it does not warrant discussion in a written opinion. R. 2:11-3(e)2.

Affirmed.

 

By comparison, Regulation 17 gives explicit notice of potential discipline charges. That Regulation states: "The only permitted antenna hook-up is the wall jack provided by the institution. The only authorized TV Antenna hook-up cables are those sold in the inmate Store. Inmates possessing unauthorized TV hook-ups will be subject to disciplinary charges."

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A-0494-07T1

October 23, 2008