DAVID WOMACK 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NOT FOR PUBLICATION WITHOUT THE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-4225-08T34225-08T3

DAVID WOMACK,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________________________________

 

Submitted April 21, 2010 - Decided

Before Judges Graves and Newman.

On appeal from a Final Decision of the

Department of Corrections.

David Womack, appellant pro se.

Paula T. Dow, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Susan M. Scott,

Deputy Attorney General, on the brief).

PER CURIAM

Appellant David Womack (Womack) is a federal prisoner serving a life sentence for multiple convictions, including armed robbery, armed burglary, kidnapping, and aggravated sexual assault. He was transferred to New Jersey State Prison in Trenton under the Interstate Corrections Compact, N.J.S.A. 30:7C-1 to -12. Womack appeals from the final agency decision of the Department of Corrections (DOC) dated March 17, 2009, continuing his placement in the Management Control Unit (MCU). We affirm.

An inmate may be assigned to the MCU if the Management Control Unit Review Committee (Committee) concludes that the inmate poses a substantial threat of endangering the safety of others; of damaging or destroying property; or of interrupting the orderly operations of the correctional facility. N.J.A.C. 10A:5-2.5(a). When determining whether an inmate should be placed in the MCU, the Committee must consider the following criteria:

1. Disciplinary records during the inmate's present term of confinement and any previous terms served. Weight shall be assigned to this criterion where there are a substantial number of minor charges, or one or more charges of a serious nature;

2. Past criminal offenses, including those for which incarcerated, which indicate the capability and propensity to commit or precipitate serious acts of disruption or violence;

3. Number and location of previous institutionalizations including the disciplinary records, progress reports, classification reports, or any other records which indicate involvement in serious misbehavior;

4. Reports by professional staff (for example, psychologists, social workers, psychiatrists);

5. Reports indicating present involvement in criminal activities in the community or within the correctional facility;

6. Evidence of an attitude which indicates an unwillingness to follow rules and obey orders;

7. Inability to maintain a satisfactory work record as indicated in reports by work supervisors and/or frequency of job changes;

8. Information indicating unsatisfactory adjustment to, or performance in, treatment or rehabilitative programs; and

9. Evidence of the inmate's inability or unwillingness to house with other inmates in a nondisruptive and nondestructive manner.

[N.J.A.C. 10A:5-2.4(a).]

Womack's initial MCU placement hearing took place on November 22, 2005. Following that hearing, the Committee issued a written decision stating the following:

During the review of the inmate[']s Criteria Record Sheet inmate Womack readily admits involvement in several of the offenses listed but not all. He acknowledges being incarcerated approximately 13 years.

During this hearing inmate Womack admits being in a General Population setting only for a brief period of time (10 months.) He stated during that time he worked in a Captain[']s office. The inmate acknowledged that he smeared feces on his cell wall because he wanted to make a telephone call. Inmate Womack acknowledged that he can be a violent individual. He stated he . . . tried to kill himself only once.

. . . .

The record reflects it has been 5 months since his last disciplinary infraction. He claims he refused to take a drug test because he is currently challenging his committing offense whose conviction was allegedly based on a DNA sample. His last serious charge was a threatening charge in February 2005. The Criteria Record Sheet lists approximately 120 disciplinary charges since 2001. These infractions range from multiple assaults on staff to the destruction of property[,] fighting[,] and threatening.

It appears thus far inmate Womack has had little success in functioning appropriately in a General Population setting. Reports from Mental Health staff do not indicate any mental illness. Inmate Womack's behavior is characterized as manipulative and attention seeking.

Based on inmate Womack's extensive disciplinary history it is clear that he is either unable or [u]nwilling to conduct himself successfully in a General Population setting. A reduction of privileges, institutional transfer or housing unit will do little to deter his behavior. It is the decision of this Committee that based on inmate Womack's history he would benefit from the structured environment of the Management Control Unit at New Jersey State Prison.

Womack's initial placement in the MCU was subject to routine periodic reviews pursuant to N.J.A.C. 10A:5-2.10(a), as well as a mandatory annual review, N.J.A.C. 10A:5-2.11. On January 30, 2009, the Committee conducted a routine review of Womack's placement and determined that Womack should remain in the MCU:

The Committee believes that continued placement in the MCU is necessary at this time due to your extensive disciplinary history while housed in the Federal Bureau of Prisons as well as the NJDOC, specifically NJSP. In 2005, you were placed in the MCU due to your violent and disruptive behavior while housed in the Federal Bureau of Prison[s] System. While housed at NJSP, you received an institutional infraction for assault in December of 2005, August of 2006 and again in December of 2007. In November of 2007, you also received an institutional infraction for misuse of authorized medication. At this time, you have yet to complete the necessary programs required for consideration of release from MCU. Your actions continue to pose a threat to the safety and security of any correctional facility.

Womack appealed the Committee's decision to Michelle Ricci, Administrator of New Jersey State Prison. On March 17, 2009, Administrator Ricci upheld the Committee's decision based on Womack's "prior and most recent disciplinary record":

Specifically, your record reflects a litany of institutional infractions, totaling one hundred twenty (120) from the Federal Bureau of Prisons for various infractions. Most recently, while housed at NJSP-MCU, you were found guilty of several institutional infractions to include[:] assault on any person in December of 2005, August of 2006, and December 2007. In November of 2007 you received an institutional infraction for misuse of authorized medication.

On appeal to this court, Womack claims the final DOC decision must be reversed because there was insufficient credible evidence to support his placement in the MCU, the decision violated his due process rights, and it imposed "an atypical and significant hardship on Womack under any plausible baseline." Based on our review of the administrative record, the briefs, and the applicable law, we conclude that these arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). The final decision of the DOC is supported by sufficient credible evidence, Rule 2:11-3(e)(1)(D), and Womack received all of the procedural protections to which he was entitled. Accordingly, we affirm with only the following comments.

"Courts have only a limited role to play in reviewing the actions of other branches of government. In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester County Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Ordinarily, an appellate court will reverse the decision of [an] administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Under the regulatory scheme applicable to MCU placement, once the inmate makes the initial showing under N.J.A.C. 10A:5-2.11(b), the DOC must demonstrate by substantial evidence that the inmate continues to pose an identifiable threat to the safety of others or of interrupting the secure or orderly operation of the correctional facility. We are satisfied that standard was met in this case.

 
Affirmed.

(continued)

(continued)

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A-4225-08T3

April 29, 2010