KEVIN CONLEY v. NEW JERSEY DEPARTMENT OF CORRECTIONS

This case can also be found at 197 N.J. 15, 960 A.2d 745.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6412-06T36412-06T3

KEVIN CONLEY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________

 

Submitted August 26, 2008 - Decided

Before Judges Lisa and Simonelli.

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

Kevin Conley, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Sarah B. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Kevin Conley is currently at the New Jersey State Prison (NJSP) serving a life sentence with a mandatory minimum term of thirty years for first degree murder, first degree aggravated sexual assault, and second degree burglary. He appeals the July 31, 2007 decision of the Administrator of the New Jersey Department of Corrections (DOC) denying his request for certain law library materials.

The NJSP administration implemented Lexis-Nexis to update its law library materials. When the administration discovered that inmates were improperly using the computers, it temporarily implemented the use of Special Internet Search Request [SISR] forms to provide access to recent materials.

On July 5, 2007, Conley submitted two Request System & Remedy Forms (RSRF) notifying the DOC of its failure to maintain the law library, contrary to N.J.A.C. 10A:6-2.4(e), because there were no hard copies of the United States Supreme Court Reporter from 2005 to the present; the Federal Court Reporter and the Federal Supplement Reporter from 2003 to the present; and the New Jersey Supreme Court Reporter and New Jersey Superior Court Reporter from 2002 to the present. Conley claimed that the absence of these volumes denied access to the federal and state courts, contrary to N.J.A.C. 10A:6-1.1(a)1; and denied access to legal reference, contrary to N.J.A.C. 10A:6-2.2(a)1. He requested that they be replaced to comply with N.J.A.C. 10A:6-2.4(f)2.

The requests were forwarded to NJSP's education department. On July 13, 2007, the education department issued an Administrative Remedy Response (the Response), advising Conley that he "may request recent material by submitting a [SISR]."

On July 27, 2007, Conley appealed, contending that the "[The Response] is non-sequitur," and the requested volumes that allegedly had not been replaced have "opinions on subjects that are generally unknown, and unknowable, until they have been replaced" as per N.J.A.C. 10A:6-2.4(e) and N.J.A.C. 10A:6-2.4(f)2. On July 31, 2007, the Administrator denied Conley's appeal, stating that Conley improperly submitted the SIRS forms and the matter "had already been addressed." This appeal followed.

Our role in reviewing an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's determination, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (citing City of Newark v. Natural Res. Council in the Dep't of Envtl. Prot., 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). We accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. Of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). We will not reverse an agency decision unless it is arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as a whole. In re the Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); In re Taylor, 158 N.J. 644, 656-57 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (1990)); Brady, supra, 152 N.J. at 210-11 (citing In re Warren, 117 N.J. 295, 296 (1989)). With these standards in mind, we review Conley's contentions.

Conley first contends that the use of the SIRS form constituted an informal rule change adopted by the DOC in violation of the New Jersey Administrative Practice and Procedure Act, N.J.S.A. 52:14B-1 to -24. We disagree.

A prison administrator is "responsible for the maintainance and updating of the inmate law library." N.J.A.C. 10A:6-2.4(e). When developing internal management procedures for supervision of the law library and inmates' use of it, the administration must consider the "secure and orderly operation of the correctional facility[.]" N.J.A.C. 10A:6-2.4(b). NJSP implemented the SISR form as a temporary management procedure to prevent improper inmate computer use. The temporary implementation of the SISR form was not an impermissible retroactive rule change falling within the purview of N.J.S.A. 52:14B-4. There was no attempt to revise the Code, but rather NJSP implemented a temporary security measure which ensured inmates' direct personal access to legal research materials and ultimately the courts. Thus, the decision to temporarily use the SISR form was not arbitrary, capricious or unreasonable.

Conley next contends that the use of the SISR form instead of replacing hard copies of the requested materials violated his property right to direct personal access to the requested materials. We disagree.

N.J.A.C. 10A:6-2.3 provides:

(a) Inmate legal services shall be available to all inmates.

(b) Based on the availability of space, supervisory staff and the security needs of the correctional facility, the Administrator or designee shall determine those inmates who may have direct personal access to legal reference materials and related services.

(c) Inmates who, in the discretion of the Administrator or designee, may not have direct personal access to legal reference materials and related services shall receive legal reference materials and related services from assigned inmate paralegals.

The language of N.J.A.C. 10A:6-2.3 is clear and unambiguous. It does not provide inmates a right to direct access to hard copies of legal research materials. Also, there is no regulation prescribing a property right for prisoners to have direct personal access to hard copies of legal materials, especially when those materials are available electronically. Even if such property right existed, Conley was not denied access to the requested materials, but merely advised he had to access them through the SISR, which the NJSP implemented as a temporary management procedure to prevent inmates' misuse of computer. Thus, all Conley had to do to obtain the requested materials was to properly submit a SISR.

Affirmed.

 

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A-6412-06T3

September 8, 2008