JOSEPH CERATO v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2971-09T3

JOSEPH CERATO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

June 23, 2011

Submitted May 24, 2011 - Decided

Before Judges Yannotti and Espinosa.

On appeal from the Department of Corrections.

Joseph Cerato, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jason S. Postelnik, Deputy Attorney General, on the brief).

PER CURIAM

Joseph Cerato, an inmate at East Jersey State Prison (EJSP), filed a property claim for property taken from his cell after his wing at EJSP was searched. He appeals from a final decision of the Department of Corrections (DOC) deeming his property claim resolved because his property was returned to him. For the reasons that follow, we affirm.

Senior corrections officers conducted a search of Cerato's cell on October 19, 2009. Upon returning to his cell, Cerato discovered that certain items were confiscated and he reported the missing items to his unit officers. He submitted an Inmate Remedy System form on October 21, 2009, in which he stated that personal and authorized items, including three coil heaters ("stingers") and two surge protectors, were taken. On the claim form, he acknowledged that he got his fan and "surge protectors back" on October 20, 2009. (Emphasis added.) The staff response was that a claim form, rather than the remedy system form, was necessary for the inmate's claim.

Cerato filed an inmate claim for lost, damaged or destroyed personal property on November 5, 2009, listing three coil heaters and one surge protector as items thrown in the garbage during the search of his cell. Lieutenant James Mattia conducted an investigation in which he reviewed Cerato's receipts and invoices for the confiscated property, the claim form and inmate remedy form submitted, and interviewed the officer who confiscated the property. Lieutenant Mattia's claim investigation report states the officer who conducted the search said the inmate "was given his surge protector and stingers back" on October 20. Lieutenant Mattia reported no proof of negligence by EJSP staff and recommended that Cerato's claim be denied.

Based upon this record, the Claims Committee at EJSP determined Cerato's claim was resolved. The Associate Administrator of EJSP thereafter rendered a final disposition, concluding that Cerato's claim was resolved because the investigation proved his missing property items were returned to him on October 20, 2009.

In this appeal, Cerato argues that the final decision should be reversed because the EJSP staff was negligent and the processing of his property claim failed to comply with N.J.A.C. 10A:1-11.6 and N.J.A.C. 10A:2-6.1(b).

In Barnes v. Sherrer, 401 N.J. Super. 172 (App. Div. 2008), we remanded an inmate's property claim to the DOC to permit it to comply with regulations regarding a claim that had been ignored. The facts here are plainly distinguishable, however, because the record in Barnes failed to reveal that "a proper investigation and resolution of the claim took place[.]" Id. at 180.

N.J.A.C. 10A:2-6.1(a) provides that, once an inmate properly files a claim for lost, damaged or destroyed property on Form 943-I,

(b) The Administrator or designee shall submit Form 943-I to the Director of Custody Operations or designee for investigation and preparation of a report. The investigation conducted by the Director of Custody Operations or designee shall consist of, but not be limited to:

1. Obtaining statements from the inmate, witnesses and correctional facility staff; and

2. Verifying that the inmate was authorized to have and did in fact, possess the personal property named in the claim.

[N.J.A.C. 10A:2-6.1(b)]

Cerato concedes he received a response to his complaint, that an investigation was conducted, and that he was interviewed. The investigation report also reflects the interview of appropriate correctional facility staff. We are therefore satisfied there was substantial compliance with the DOC regulations.

The statements provided by Cerato and the officer who conducted the search conflicted as to whether all of Cerato's property was returned to him. It is evident the DOC resolved this dispute by accepting the corrections officer's version and the recommendation of the investigating officer.

The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must sustain the agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record[.]" Ibid.

Furthermore, an appellate court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Ibid. (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).

Here, there is no "clear showing" that the DOC's conclusion was arbitrary, capricious, or unreasonable, and there is in fact support in the record for the DOC's conclusion that Cerato's property was returned to him.

Affirmed.