ARLINGTON KING v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2096-07T32096-07T3

ARLINGTON KING,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________

 

Submitted October 27, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

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

Arlington King, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Arlington King, an inmate at East Jersey State Prison ("East Jersey"), appeals a final administrative decision of the Department of Corrections ("the Department") disciplining him for two asterisked offenses under N.J.A.C. 10A:4-4.1: (i) a *.703 violation for conduct with a visitor contrary to prison regulations and (ii) an additional *.703 violation for accepting improper monetary gifts. We affirm.

King is serving a thirty-year term for murder and other crimes. He was transferred in September 2007 to East Jersey from the New Jersey State Prison ("the NJSP") in Trenton.

The disciplinary charges arose out of King's interactions with a visitor, Darlene Sexton. At the time in question, Sexton was employed as a nurse at the NJSP by Correctional Medical Services ("CMS"). CMS was then under contract with the Department to provide medical care to inmates at various State penal facilities. Sexton first became acquainted with King, who has medical issues, in the course of her employment at the NJSP.

The Department acknowledges that Sexton was not employed by the Department of Corrections, or otherwise employed by the State of New Jersey. Instead, she was on the payroll of CMS.

After he had been questioned about this matter, King told a corrections officer that he had requested a transfer to East Jersey with the specific purpose of having Sexton visit him there. We note that East Jersey, located in Rahway, is a considerable distance from Sexton's home in Mercer County.

Once he arrived at East Jersey, King included Sexton on his proposed list of visitors, designating her with the legend on the form corresponding to a "friend." King also provided Sexton's home address. The form does not request employment information about the inmate's proposed visitors. Therefore, the form did not specifically alert East Jersey administrators that Sexton is a nurse, or that she worked at the NJSP.

Sexton visited King at East Jersey three times: November 3, 10 and 17, 2007. Evidently, when she entered the building on each of those occasions, her employment as a prison nurse at the NJSP was not readily apparent. During her visit with King on November 17, Sexton was spotted in the hall by a corrections officer who recognized her as a nurse from the NJSP. This discovery caused the prison officers to terminate Sexton's visit immediately.

Corrections officers then searched King's cell and found various torn-up papers and other items referring to Sexton. The officers also found $300 in currency, which King claimed Sexton had given him for use in the prison commissary.

King was thereafter charged with the two aforementioned offenses under *.703. Additionally, he was charged with a violation of *.754 for accepting money with the intent to circumvent prison rules, and a violation of *.704 for unauthorized contact with the public.

The initial disciplinary hearing, after some preliminary matters were addressed, was postponed to a later date to gather additional information. The testimony and other proofs were fully presented before a second hearing officer on November 30, 2007. After considering the evidence, the hearing officer found King guilty of both *.703 violations, but not guilty of the *.754 and *.704 charges. As sanctions, the hearing officer imposed fifteen days of detention for each of the two *.703 violations, ninety days administrative segregation, and ninety days loss of telephone privileges.

Sexton, meanwhile, was permanently banned from East Jersey. The ban caused her to lose her job with CMS. After her discharge from CMS, Sexton attempted to get the Department to reconsider the ban, but she was unsuccessful.

King internally appealed the hearing officer's decision. On December 4, 2007, Assistant Superintendent LaForgia upheld the hearing officer's findings of guilt and the corresponding sanctions.

King raises on appeal the following points:

POINT I

[THE DEPARTMENT'S] ADMINISTRATOR ERRED IN HIS DETERMINATION THAT MS. SEXTON WAS A DEPARTMENT OF CORRECTIONS EMPLOYEE.

POINT II

APPELLANT WAS NOT GIVEN NOTICE OF [THE VISITOR] RULE OR REGULATION.

POINT III

[THE] REPLACEMENT HEARING OFFICER FAILED TO START [THE] HEARING ANEW.

POINT IV

DENIAL OF DUE PROCESS.

POINT V

APPELLANT WAS FOUND GUILTY OF SAME [*.] 703 CHARGES TWICE [,] IN VIOLATION OF DOUBLE JEOPARDY.

POINT VI

[THE] HEARING OFFICER ERRED IN FINDING GUILT WHICH WAS NOT BASED ON SUBSTANTIAL EVIDENCE.

None of these arguments are persuasive.

We begin with a recognition that a "strong presumption of reasonableness must be accorded [to an administrative] agency's exercise of its statutorily delegated duties." In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 380 (App. Div. 1997). With respect to the Department's statutory responsibilities for the administration and security of our State prisons, see N.J.S.A. 30:1B-1 to -25, the Commissioner of Corrections has broad authority and considerable discretion in fulfilling those responsibilities. See, e.g., Avant v. Clifford, 67 N.J. 496, 517 (1975) (recognizing the "wide charter of management and control" legislatively conferred upon the Commissioner and the Department); see also Ries v. Dep't of Corr., 396 N.J. Super. 235, 238-39 (App. Div. 2007).

The Department's zone of authority and discretion undoubtedly encompasses the strict oversight of inmate visits. In that regard, we are mindful of the security risks posed by such interactions with outsiders, who might attempt to bring contraband into a prison, or who might otherwise engage in or abet improper conduct with the inmate, or on the inmate's behalf. See Jackson v. Dep't of Corr., 335 N.J. Super. 227, 233 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001). Similarly, the Department has legitimate reasons to deter overly familiar relationships between inmates and persons who work in the prisons, lest that familiarity compromise the integrity of security within the institution.

King couches his arguments, in part, upon constitutional norms of due process. However, it is well settled that "a prisoner does not have a due process right to unfettered visitation." Jackson, supra, 335 N.J. Super. at 235. To the contrary, we have determined that the Department's disciplinary policies in regulating, and at times forbidding, contact visits with inmates are, in general, "reasonably related to a legitimate governmental objective." Id. at 233; see also Walker v. Dep't of Corr., 324 N.J. Super. 109 (App. Div. 1999).

The specific prohibitions in question are contained in the Department's inmate handbook, a copy of which would have been routinely provided to King upon his admission to the facility. The pertinent section reads:

Undue familiarity between inmates and staff or volunteers is prohibited. Inmates must limit their contact with staff and volunteers to authorized and official interactions. Any inmate who participates in, or engages in, any unauthorized contact, interaction, or relationship with a staff member or volunteer shall be subject to disciplinary action. Examples of undue familiarity or an inappropriate contact/relationship includes, but is not limited to, giving or receiving favors, gifts, services, displays of affection or any sexual behavior or contact.

[(Emphasis added).]

King argues that Sexton was not encompassed by this provision because she was not a member of the East Jersey "staff," nor was she a volunteer at that institution. He asserts that employees of private contractors such as CMS cannot be reasonably considered within the scope of the policy.

We concur with the Department that King reads the Department's written policy far too narrowly. The term "staff" has a broad common usage. The word has been defined as "a group of assistants who aid an executive, director, or other person in authority," or the "personnel carrying out a specific enterprise." Webster's New College Dictionary II 1072 (1999 ed.); See also Webster's Third New International Dictionary 2219 (1981) ("personnel responsible for the functioning of an institution . . . ."); Hunterdon Medical Center v. Twp. of Readington, 391 N.J. Super. 434, 445-47 (App. Div. 2007) (broadly construing the term hospital "medical staff" to go beyond hospital-employed physicians), aff'd in part and rev'd in part, 195 N.J. 549 (2008).

More specifically, in other litigation contexts we have previously treated the employees of CMS working within the State prisons, in certain respects, as the functional equivalent of prison staff members. For instance, in Hoag v. Commissioner, 397 N.J. Super. 34, 48 (App. Div. 2007), we held that a clinical social worker employed by CMS, who provided mental health services to inmates at a State prison, could bring an employment discrimination action against the Commissioner and a State corrections officer because the Department exercised "substantial control over [her] work environment." In that regard, we noted that "CMS's selection of employees and subcontractors is subject to [the Department's] approval," and that "[a]ll CMS employees' personnel files are on file" with each institution and are "made available to the institutional superintendent." Ibid. We also noted that plaintiff's daily work was monitored by a Department, and that her health care services for inmates was provided "in close proximity" to employees of the Department. Id. at 49-50.

We also stressed in Hoag that CMS was helping the Department fulfill its legal responsibilities to provide inmates with medical care, and that plaintiff's work as a social worker was "functionally integrated into the State's delivery of required medical services to [State] inmates." Id. at 52. Thus, "considering the overall economic realities of the relationship between plaintiff, CMS and the DOC," we concluded that "the character of the relationship between the DOC and plaintiff could be considered that of employer/employee for purposes of the [Law Against Discrimination]." Id. at 53; see also Scott-Neal v. N.J. State Dept. of Corr., 366 N.J. Super. 570, 577 (App. Div. 2004) (holding that the State is liable for the medical malpractice of a physician employed by CMS and utilized by a State prison).

The same functional analysis, founded upon common sense and "economic realties," should apply here. Although Sexton may have drawn her paycheck from CMS, her services as a nurse within a State prison were clearly part and parcel of the Department's delivery of medical care to inmates. It would make no sense for the Department to have strict regulation on interactions and excessive fraternization with inmates involving Corrections employees, and even volunteers within the prison, but omit from that oversight nurses and other employees of prison contractors such as CMS, who are likewise inside the prison walls on a daily basis. The constraints on undue fraternization should not evaporate when a prisoner is transferred to a different building within the State penal system, given the regular movement of prisoners and personnel to and from the various institutions.

King, a long-time prisoner within the State penal system, should have anticipated that his transfer to East Jersey did not suddenly convert Sexton into an ordinary visitor having no ties to the prison system. Although the Department may wish to revise its written policies prospectively to make even clearer the scope of the "staff and volunteers" encompassed in its visitation guidelines, we find no constitutional infirmity in its imposition of discipline in this case. Cf. Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983) (holding that a law is unconstitutionally vague only if "persons of common intelligence must necessarily guess at its meaning . . . ."). Nor do we find that the Department's actions here were arbitrary or capricious. See In re Herrmann, 192 N.J. 19, 27-28 (2007) (administrative agency decisions are subject to reversal where they are shown to be arbitrary and capricious) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)).

Moreover, we are satisfied that the hearing procedures utilized in this case comported with the applicable norms of due process and fairness. See Avant, supra, 67 N.J. at 519 n. 21; see also McDonald v. Pinchak, 139 N.J. 188 (1995). The findings of King's guilt on the two *.703 infractions, both as to the improper contact with a staff member and the improper receipt of gifts from that person, were amply supported by credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

We have carefully considered the balance of King's arguments, and they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D) and (E).

The Department's final agency decision of December 4, 2007 is affirmed.

We note that King improperly attempts to include Sexton as a co-appellant in his disciplinary appeal, even though she was not a party to the hearing that is on review.

(continued)

(continued)

11

A-2096-07T3

November 13, 2008