ALLEN RIVERA 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NOT FOR PUBLICATION WITHOUT THE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-0

ALLEN RIVERA,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

July 3, 2014

Submitted May 20, 2014 Decided

Before Judges Carroll and Higbee.

On appeal from the New Jersey Department of Corrections.

Allen Rivera, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Allen Rivera (Rivera), an inmate at South Woods State Prison, appeals from the December 27, 2012 decision of the New Jersey Department of Corrections (DOC) denying him contact visitation privileges. Rivera claims the decision of the DOC is arbitrary, capricious and unreasonable. We disagree. The decision to deny contact visitation was based on Rivera's commission of infractions concerning contraband introduced through contact visitations and other disciplinary infractions. We affirm.

Rivera is incarcerated at South Woods State Prison and is serving a twenty-two year sentence. On July 13, 2007, Rivera was found to be in possession of a cell phone in violation of N.J.A.C. 10A:4-4.1. Under N.J.A.C. 10A:4-12.1 this is considered a "zero tolerance" infraction. As a result, Rivera lost the privilege of contact visits. At the same time, he was also charged with possession of a weapon and the sanction imposed encompassed both offenses.

In November 2007, Rivera was again found to be in possession of a cell phone and possession of a prohibited substance. Rivera lost contact visits as a result of these two zero tolerance offenses.

In June 2009, Rivera was found to be in possession of multiple cell phones, which was his fourth zero tolerance offense, and he again lost his contact visitation privileges.

In April 2010, Rivera was found guilty of a disciplinary infraction for disrupting the orderly operation of the facility in violation of N.J.A.C. 10A:4-4.1. In February 2012, he committed another disciplinary infraction.

In December 2010, Rivera applied for reinstatement of his contact visitation privileges which had been revoked since June 2009. His request was denied by the prison administrator. In 2011, Rivera applied several times for reinstatement of his contact visitation but was denied each time. In September 2012, Rivera again applied for reinstatement of his contact visitation privileges and was denied in October 2012. Subsequently, Rivera appealed the administrator's denial of his request to the DOC. In December 2012, the DOC denied Rivera's appeal and upheld the decision of the administrator. The DOC's decision was based on a finding of three disciplinary infractions involving cell phones and one involving prohibited substances within the prior five years, as well as additional subsequent disciplinary charges.

N.J.A.C. 10A:18-6.20(b) permits reinstatement of visitation where an inmate has committed two or more zero tolerance offenses in the discretion of the prison administrator. An agency's decision should not be reversed unless it is arbitrary, capricious or unreasonable or not supported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Rivera's repeated zero tolerance offenses and his continuing disciplinary infractions provide a substantial basis supporting the decision to deny his request for reinstatement.

Rivera is allowed visitation through a window. The DOC also encouraged him to remain violation free and then reapply for reinstatement. We affirm.

Affirmed.