PEDRO CONCEPCION v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1899-07T21899-07T2

PEDRO CONCEPCION,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

 

Submitted November 12, 2008 - Decided

Before Judges Gilroy and Chambers.

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

Pedro Concepcion, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Appellant is an inmate at the New Jersey State Prison (NJSP), Trenton, serving a life sentence with a mandatory minimum term of 105 years for three murders. Appellant appeals from the final decision of the New Jersey Department of Corrections (DOC) denying his request to remove the keep separate status (KSS) imposed in 1992 as to inmate John Peplinski, and the KSS imposed in 1993 as to inmates Steven Bolling and Robert Swiontak. We affirm.

In June 1993, appellant, Bolling and Swiontak were involved in an altercation while inmates at NJSP. Although appellant suffered an injury during the altercation, he initially denied involvement in it, contending that he suffered the injury while playing basketball. Because a protective custody status investigation conducted by the DOC's Special Investigation Division (SID) confirmed the altercation, the Prison Administrator imposed the KSS as to Bolling and Swiontak.

Contrary to his initial denial of involvement in the altercation, appellant acknowledged during a protective custody status investigation on February 23, 1999, that he fought with Bolling in June 1993. On October 13, 2007, appellant submitted a Request System & Remedy form seeking removal of the KSS. The request was supported by appellant's affidavit, stating that "[s]ince the implementation of [KSS] [fifteen] years ago[,] there [have] not been any incidents with or due to keep separate parties which is indicative of how unreliable the confidential informant['s] report really is. [Fifteen] years without incident should be an indicator that the [KSS] is no longer warranted." The request was also supported by a similar affidavit of inmate Bolling. Lastly, appellant submitted a letter with his request restating his original contention that the 1993 injury was accidentally caused during a basketball game, not during an altercation with Bolling. On October 31, 2007, SID recommended that appellant's request be denied, finding "no compelling evidence that [the KSS] was not necessary and appropriate based on investigation(s)."

On November 7, 2007, appellant submitted a second Request System & Remedy form attaching copies of his original request for removal of the [KSS] and of SID's October 31, 2007 recommendation. On November 9, 2007, the prison administration again denied appellant's request stating: "[t]his matter has been address[ed] repeatedly. There is no change in conditions that would warrant the removal of this keep separate alert. Response by SID is appropriate." On November 15, 2007, appellant filed an administrative appeal, contending that "[t]he decision to impose a keep separate was arbitrary because it was based on demonstrably incorrect information. Failure to rectify that clearly erroneous decision has denied me opportunities for work/training/rehabilitation/privileges available to other inmates." On November 20, 2007, the Prison Administrator denied the appeal, stating that SID's response was appropriate. On November 26, 2007, the administrator issued a written denial of appellant's request to remove the KSS from his file.

On appeal, appellant argues:

POINT I.

RESPONDENT'S KEEP SEPARATE ORDER SHOULD BE VACATED FOR LACK OF EVIDENCE AND A FAILURE TO COMPLY WITH AGENCY REGULATIONS.

POINT II.

APPELLANT WAS DENIED A MEANINGFUL PROCEDURE FOR REVIEWING HIS REQUEST TO REMOVE THE KEEP SEPARATES.

POINT III.

THIS COURT SHOULD NOT CONSIDER CONFIDENTIAL RECORDS ON APPEAL.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Initially, we note that much of appellant's argument challenges the initial implementation of the KSS in 1993.

The record certified by respondent on appeal does not contain any 173-I Placement in Keep Separate Status forms. No document has been provided to suggest that the administrator ever authorized an SID investigation. No written report of any SID investigation has been disclosed. No record exists to suggest that the information advanced in support of the recommendation was determined to be accurate, and no written decision has been produced which would indicate that the administrator made a determination to review the information, make findings and reach a conclusion that the facts warranted placement for "maintenance of security and the orderly operation of the facility." There is absolutely no record to rationally conclude that respondent followed regulations or that the process was a thoughtful and orderly one.

We reject appellant's challenge to the imposition of the KSS in 1993, appellant not having timely appealed that decision. R. 2:4-1(b).

Appellant argues next that the DOC decision, denying his request to remove the KSS, is not supported by "adequate findings or reasons." We disagree.

The decision to remove an inmate from KSS rests in the sound discretion of the Prison Administrator. "The Administrator may authorize the removal of an inmate from keep separate status when a review of the factors in the inmate's case indicates that the keep separate status is no longer appropriate." N.J.A.C. 10A:3-2.5(a) (emphasis added). Accordingly, the Prison Administrator is not required to remove a KSS if he or she determines that it is necessary "for maintenance of security and the orderly operation of the correctional facility." N.J.A.C. 10A:3-2.2(a).

Here, appellant suffered an injury in 1993, claiming that it was caused accidentally during a basketball game. The SID investigation revealed that it occurred during an altercation. Then, in 1999, appellant changed his version of events, admitting that he was involved in an altercation with Bolling in 1993. Now, in support of his application to remove the KSS, appellant reverts back to his original version of events, i.e., that the injury was caused accidentally while playing basketball. Clearly, appellant's own contradiction as to how he suffered the injury raises serious questions as to whether appellant would conform to his representations that he would not involve himself in future acts of violence with Bolling if the KSS was removed.

Lastly, appellant contends that the denial of his request deprives him of opportunities to participate in certain programs and rehabilitation available to other inmates. We determine the argument meritless. Appellant has not submitted any proof in support of his contention.

 
Affirmed.

Subsequent to filing the appeal, inmate Peplinski was released from custody on July 23, 2008, and inmate Swiontak has been paroled. Accordingly, we deem the appeal from the denial of appellant's request to remove the KSS as to those two inmates moot and shall only address the issues raised by appellant pertaining to the DOC's denial of his request to remove the KSS as to inmate Bolling.

(continued)

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A-1899-07T2

December 4, 2008