JUSTICE RASIDEEN ALLAH 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NOT FOR PUBLICATION WITHOUT THE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-3837-10T1

JUSTICE RASIDEEN ALLAH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________

June 21, 2012

Submitted: June 12, 2012 - Decided:

Before Judges Axelrad and Parrillo.

On appeal from the New Jersey Department of Corrections.

Justice Rasideen Allah, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Justice Rasideen Allah is incarcerated at the New Jersey State Prison in Trenton. He is serving a life sentence, with a thirty-year period of parole ineligibility, for murder. He appeals from a final determination of the Department of Corrections (DOC) issued on February 24, 2011, continuing his placement in the Management Control Unit (MCU). We affirm.

The MCU is "a close custody unit" in the correctional facility. N.J.A.C. 10A:5-1.3. An inmate may be assigned to the MCU if the Management Control Unit Review Committee (MCURC) finds the inmate poses a substantial threat: to the safety of others, of damage or destruction of property, or of interrupting the operation of the correctional facility. N.J.A.C. 10A:5-2.5(a). A variety of criteria are considered when making this determination, including:

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).]

Following an inmate's placement into the MCU, a routine review hearing shall be conducted a minimum of every three months, N.J.A.C. 10A:5-2.10(a), during which the MCURC "shall again review the information upon which the decision was based to assign the inmate to the [MCU]," N.J.A.C. 10A:5-2.10(e). The MCURC shall release an inmate from the MCU only when, in its opinion, the inmate no longer poses a substantial threat to the safety of others, of damage to or destruction of property, or of interrupting the orderly operation of the prison. N.J.A.C. 10A:5-2.10(f).

An inmate's placement in the MCU also shall be reviewed annually to determine whether an inmate's release from the MCU is appropriate. N.J.A.C. 10A:5-2.11(a). At the annual review hearing, the inmate has the initial burden of demonstrating he or she has participated in the requisite jobs, educational and recreational programs, complied with the criteria detailed by the MCURC, remained free from prohibited "asterisk" acts,1 and "agreed to reaffirm the obligation to adhere to the rules and regulations for inmate behavior." N.J.A.C. 10A:5-2.ll(b).

Appellant was placed in the MCU on November 28, 2006 for security and housing purposes. Following a hearing in January 2007, the MCURC concluded appellant had masterminded "an extremely elaborate sophisticated system . . . that circumvented institutional safeguards with respect to financial transactions as well as the mail and telephone systems. This scheme effectively laundered money that was utilized to introduce a variety of contraband," including weapons, into the prison. The MCURC was particularly concerned appellant had demonstrated he was "willing to go to great lengths to circumvent institutional safeguards to violate departmental rules and regulations all in an effort to further his own interests." Accordingly, the MCURC directed appellant's placement in the MCU.

Following an unsuccessful administrative appeal, appellant appealed to us, and we affirmed in a per curiam opinion. Allah v.N.J. Dep't of Corr., No. A-4422-06 (App. Div. Jun. 3, 2008). On September 9, 2008, the Supreme Court denied certification. Allah v.N.J. Dep't of Corr., 196 N.J. 463 (2008).

The MCURC has subsequently conducted both annual and routine reviews and has maintained appellant's placement in the MCU. In its December 29, 2010 annual and routine reviews, the MCURC considered, in part, the documents supporting appellant's initial placement in the MCU, his disciplinary reports, program participation, medical and psychological interview reports, housing reports, and the testimony and evidence presented by appellant. The MCURC concluded appellant had not demonstrated he was a suitable candidate for release from the MCU because he had not participated in the requisite programs or jobs, complied with the MCURC's criteria, maintained good disciplinary conduct, or agreed to affirm the obligations to adhere to the DOC's rules and regulations. Specifically, the MCURC commented, in pertinent part:

The MCURC notes your statement indicating that the issues presented during your Routine Reviews have not been answered. The Committee is not required to continuously address these issues simply because you are not satisfied with the response provided. . . . At this time the Committee believes that continued placement in the MCU is necessary due to the nature surrounding your initial placement as well as your extensive disciplinary history. While in general population you received several fighting and assault infractions as well as threatening with bodily harm, setting a fire, possession and use of narcotics, engaging/encouraging a group demonstration, attempted conduct which disrupts, attempted misuse of electronic equipment, unauthorized use of mail/phone, and possession/exhibition of anything related to a security threat group. Your most recent disciplinary infractions occurred in September of 2010 in which you were found guilty of refusing to submit to a search, refusing to obey, possession of anything not authorized for retention, and possession of another's property. You are currently serving an Administrative Segregation Sanction for these infractions.[2] Furthermore, you have yet to complete the necessary programs required for consideration of release from the MCU. Based on the above, you have demonstrated an inability to successfully house within a general population housing setting. Your actions and lack of regard for the rules and regulations continues to pose a threat to the safety and security of any correctional facility.

The next routine review was set for March 20ll, and the next annual review was set for December 20ll.

Appellant filed an administrative appeal, and on February 24, 20ll, the Administrator of the DOC upheld the MCURC's final determination. This appeal ensued.

Appellant argues:

POINTI:

THE FINAL ADMINISTRATIVE AGENCY DECISION OF FEBRUARY 24, 2011, WHICH UPHELD THE MCURC DECEMBER 29, 2010 DECISION WHICH ORDERED THAT APPELLANT REMAIN CONFINED TO THE MCU HOUSING UNIT WENT CONTRARY TO THE INTENT OR IMPLIED INTENT OF THE LEGISLATORS IN THEIR DRAFTING OF CHAPTER 5 SUBCHAPTER 2 [M.C.U. HOUSING] OF THE NEW JERSEY ADMINISTRATIVE CODE AND RESULTED IN AN ADMINISTRATIVE AGENCY PROCEEDING THAT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE AND SHOULD BE REVERSED AND/OR VACATED IN THE INTEREST OF JUSTICE. See: HENRY VS. RAHWAY STATEPRISON, 81 N.J. 571, 579-80 (l980) AND ALSO INRE TAYLOR, 158 N.J. 644, 657 (l999).

FIRST IMPRESSION QUESTIONS PRESENTED FOR REVIEW

i. DOES THE DEPARTMENT OF CORRECTIONS HAVE AN OBLIGATION TO PROVIDE MCU INMATES WITH THE SAME LEVEL OF ADMINISTRATIVE DUE PROCESS AS THIS COURT REQUIRES IN PRISON DISCIPLINARY MATTERS?

ii. DOES THE AGENCY DECISION TO ASSIGN STAFF TO ACT AS MCURC MEMBERS ABSENT TRAINING ON WHAT THEIR RESPONSIBILITIES ARE, SO OFFENDS THE INTEGRITY OF THE MCU PROCEEDINGS THAT EVERY MCU INITIAL & CONTINUED PLACEMENT DECISION RENDERED SINCE 2005 MUST BE REVERSED AND/OR VACATED?

iii. DOES THE AGENCY DECISION WHICH ALLOWS STAFF MEMBERS WHO NEVER PARTICIPATED IN THE MCURC PROCEEDINGS TO SIGN THE FINAL NOTICE IN LIEU OF THOSE MEMBERS WHO WERE PRESENT DURING THE HEARINGS VIOLATE N.J.A.C. 10A:5-2.10(B) AND 10A:5-2.6(R)(2).

iv. DOES THE AGENCY DECISION WHICH REFUSES TO CONSIDER ANY INFORMATION DERIVED REGARDING ISSUES WHICH HAVE BEEN UPHELD BY ADMINISTRATORS AND THE APPELLATE COURT VIOLATE N.J.A.C. 10A:5-2.10(E)?

v. DOES THE MCURC DECISION WHICH EFFECTIVELY USED CONFIDENTIAL INFORMATION FROM A MARCH 1, 2007 SID REPORT VIOLATE 10A:5-2.6(B)(3)(I)(T)(1-3) IN LIGHT OF THE FACT THIS INFORMATION WAS NEVER UTILIZED DURING THE JANUARY 25, 2007 INITIAL MCU PLACEMENT HEARING, AND APPELLANT WAS NEVER PROVIDED A CONCISE SUMMARY OF THIS INFORMATION AS IS REQUIRED BY 10A:5-2.6(B)(3)?

vi. DOES THE DECISION BY THE AGENCY WHICH CONDUCTS ROUTINE AND ANNUAL MCU HEARINGS AS ONE HEARING GO CONTRARY TO THE INTENT OR IMPLIED INTENT OF THE LEGISLATORS IN THEIR DRAFTING OF 10A:5-2. 10 AND 5-2.11?

POINT II:

THE MCURC DECISION WHICH DENIED APPELLANT'S REQUEST FOR CONFRONTATION WITH INVESTIGATOR DOLCE AND ADMINISTRATOR RICCI REGARDING THE INITIAL PLACEMENT REQUEST AND INFORMATION IN THIS CASE, VIOLATED N.J.A.C. 10A:5-2.6(L) (M) AND CONFLICTS WITH THIS COURT'S RULING IN JONESVS. DEP'T OF CORR., [359] N.J. SUPER. 70, 819 A.2d l ([APP. DIV.] 2003).

POINTIII:

ALL ISSUES RELATING BACK TO THE MCURC JANUARY 25, 2007 INITIAL PLACEMENT DECISION ARE RIPE FOR REVIEW AS N.J.A.C. 10A:5-2.10(E) REQUIRES THE MCURC TO REVIEW THE INFORMATION DERIVED FROM THE INITIAL PLACEMENT DECISION DURING EACH QUARTERLY REVIEW.

We first dispose of appellant's last argument. The requirement in N.J.A.C. 10A:5-2.10(e) that "[a]t each review" the MCURC "again review the information upon which the decision was based to assign the inmate to the [MCU]" does not afford him multiple bites of the apple to challenge "all issues relating back to the MCURC January 25, 2007 initial placement decision." Appellant has had ample opportunity to participate in numerous routine and annual review hearings since that time and on at least one occasion has availed himself, albeit unsuccessfully, of judicial appellate review. This appeal is limited to the February 24, 2011 final agency determination and the discrete issues that emanate from that determination only.

As to appellant's rhetorical questions of "first impression," we do not provide advisory opinions. Jackson v.Dep't of Corr., 335 N.J.Super. 227, 231 (App. Div. 2000). We will address only specific issues raised by appellant relevant to this appeal. We also will not consider arguments based on deposition transcripts or certifications from other unrelated cases that were not part of the record on appeal. See R. 2:5-4 (generally limiting the record on appeal to all papers on file with the trial court or agency).

Appellant provides no rationale nor cites any legal basis to engraft the DOC's regulation affording an inmate twenty-four hours to prepare a defense to a prison disciplinary charge, N.J.A.C. 10A:4-9.2, to an MCU placement review proceeding. We note that appellant was aware in September 2010 that his next routine review would be conducted in December 2010, thus his claim of error by the MCURC in denying his request for a twenty-four hour postponement to prepare a defense is without merit.

Appellant's challenge with respect to the March 1, 2007 Special Investigations Division (SID) report was raised in a motion to settle the record in August 2010, which we denied. In making its determinations in connection with the December 29, 2010 routine and annual reviews of appellant's placement, the MCURC relied, in part, on this SID report. Appellant was not provided a copy of this report, which is a confidential document; however, he was provided with a confidential summary when he received the disciplinary charges in August 2006. We discern no error in its inclusion in the record on appeal.

Appellant points to no legal infirmity in the MCURC having conducted both his routine and annual MCU hearings simultaneously. Appellant's December 29, 2010 hearing was held in compliance with N.J.A.C. 10A:5-2.10 and -2.ll, which requires routine reviews every three months and annual reviews every year, inevitably leading to an overlap of the fourth routine review and annual review. The regulations do not prohibit these hearings from being held simultaneously, provided the MCURC utilizes the appropriate standards, which it did in this instance.

Appellant has further failed to demonstrate that he was legally entitled to confrontation with Investigator Dolce and Former Administrator Ricci at the MCU hearings. Moreover, such testimony pertains to the evidence and circumstances of appellant's initial placement, which has been addressed and upheld at each level.

We turn now to appellant's challenge to the merits of the MCURC's decision. We explained the policy behind MCU confinement as follows:

MCU confinement for inmates is not imposed as punishment but is used to prevent a potentially dangerous situation within the prison. It is a housing assignment within NJSP where inmates are housed after a determination by the Special Classification Committee-MCU (Committee)[] that the inmate poses a substantial threat to the safety of others, of damage to or destruction of property or, of interrupting the operation of a State correctional facility.

[Taylorv. Beyer, 265 N.J. Super. 345, 346-47 (App. Div. 1993) (footnote omitted).]

The scope of our review in an appeal from a final decision of a state administrative agency is strictly limited. Univ. CottageClub v. N.J. Dep'tof Envtl. Prot., 191 N.J. 38, 48 (2007) (citing Taylor, supra, 158 N.J. at 656). A DOC decision will be disturbed only upon a finding that its ruling is "arbitrary, capricious or unreasonable or is not supported by substantial credible evidence in the record as a whole." Taylor, supra, 158 N.J. at 657 (quoting Henry, supra, 81 N.J. at 579-80); see also McDonald v. Pinchak, 139 N.J. 188, 195 (1995); Ramirez v. Dep'tof Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub.Serv. Elec. & GasCo., 35 N.J. 358, 376 (1961) (internal quotation marks and citations omitted); In reApplication of HackensackWater Co., 41 N.J. Super. 408, 418 (App. Div. 1956).

Based on our review of the record and applicable law, we are satisfied the MCU hearing comported with all due process requirements. The MCURC considered the appropriate criteria, information and documentation, including appellant's extensive disciplinary history, which included a detailed explanation of the disposition of each charge. We conclude there is substantial, credible evidence in the record to support the agency's decision, and discern no basis on which to reach a contrary conclusion. Jacobs v. Stephens, 139 N.J. 212, 222 (1995).

1 Prohibited disciplinary acts for an inmate preceded by an asterisk "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1; N.J.A.C. 10A:4-5.1.

2 Appellant appealed, and we affirmed the disciplinary charges and sanction in a per curiam opinion. Allah v. N.J. Dep't of Corr., No. A-1722-10 (App. Div. Jun. 12, 2012).