ELIGIO BUENO 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NOT FOR PUBLICATION WITHOUT THE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

ELIGIO BUENO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________

December 4, 2015

Submitted November 18, 2015 Decided

Before Judges Ostrer and Haas.

On appeal from the New Jersey Department of Corrections.

Eligio Bueno, appellant pro se.

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

PER CURIAM

Appellant Eligio Bueno is an inmate currently incarcerated at New Jersey State Prison (NJSP). On September 20, 2004, a trial judge sentenced appellant to fifty-six years in prison, with a forty-six year, nine-month and five-day mandatory period of parole ineligibility for murder, N.J.S.A. 2C:11-3(a)(2); weapons possession, N.J.S.A. 2C:39-4(a); and resisting arrest, N.J.S.A. 2C:29-2(a)(2). On November 12, 2004, the judge sentenced appellant to a concurrent five-year term for an aggravated arson, N.J.S.A. 2C:17-1(a), committed while he was incarcerated.

On August 6, 2012, appellant was indicted for, and on July 25, 2013, pled guilty to, conspiracy to engage in racketeering, N.J.S.A. 2C:41-2(c); conspiracy to manufacture and distribute a controlled dangerous substance, N.J.S.A. 2C:35:5(a)(1); conspiracy to engage in money laundering, N.J.S.A. 2C:21-25; and possession of an electronic device while confined in NJSP, N.J.S.A. 2C:19-(b). On October 7, 2013, the trial judge sentenced appellant to a fifteen-year aggregate term for these offenses and made that term concurrent to the fifty-six-year sentence appellant was already serving for murder.

Appellant appeals from the January 10, 2014 final determination of the Associate Administrator of the Department of Corrections, upholding his placement in the Management Control Unit (MCU) following his October 2013 conviction. 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 (the Committee)1 finds 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." Ibid.; see also N.J.A.C. 10A:5-2.5(a).

In determining whether an inmate should be assigned to the MCU, the Committee must consider a number of criteria, including (1) the inmate's disciplinary records; (2) past criminal offenses; (3) the number and location of past institutionalizations; (4) reports by professional staff; (5) reports indicating present involvement in criminal activity within the correctional facility or the community; (6) evidence of an attitude indicating an unwillingness to follow rules and obey orders; (7) inability to maintain a satisfactory work record; (8) "information indicating unsatisfactory adjustment to, or performance in, treatment or rehabilitative programs;" and (9) evidence of an "inability or unwillingness to house with other inmates in a nondisruptive and nondestructive manner." N.J.A.C. 10A:5-2.4(a).

As we have previously observed

MCU confinement for inmates is not imposed as punishment[2] 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 [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.

[Taylor v. Beyer, 265 N.J. Super. 345, 346-47 (App. Div. 1993) (citing N.J.A.C. 10A:5-2.5(a)).]

Between 2004 and 2013, appellant committed numerous disciplinary infractions, including five "asterisk offenses."3 He was adjudicated guilty of fighting, refusing to submit to a search, and refusal to obey an order. As noted above, appellant was also the subject of an extensive special investigation at NJSP, which resulted in a finding that appellant was part of a conspiracy with correction officers and other inmates to engage in racketeering, manufacture and distribute a controlled dangerous substance, and engage in money laundering. NJSP imposed disciplinary sanctions for all of these offenses and, as a result, appellant lost 1335 days of commutation credits.

On December 6, 2013, NJSP Assistant Superintendent George Robinson placed appellant in the MCU pursuant to N.J.A.C. 10A:5-2.8(a), which permits pre-hearing assignment to the MCU if the inmate poses "an immediate threat: to the safety of others; of damage to or destruction of property; or of interrupting the safe, secure and orderly operation of the correctional facility." On that same date, Sergeant M. Jackson gave appellant a "criteria record sheet" detailing the criteria to be used by the Committee in considering whether he should be assigned to the MCU, together with the information the MCU would consider for each of these criteria.

NJSP scheduled a hearing concerning this assignment for December 18, 2013.4 Prior to the hearing, an inmate paralegal was assigned to assist appellant. N.J.A.C. 10A:5-2.6(c). Appellant appeared and spoke at the hearing and also submitted a written statement prepared by his inmate paralegal.

Following the hearing, the Committee issued a written decision, dated December 24, 2013, in which it found that

Since being committed to the care and custody of the [New Jersey Department of Corrections (NJDOC), appellant] has continued to disrupt the safe, secure, orderly running of this institution. He is serving a [fifty-six-]year sentence for murder. He received a major disciplinary charge while being held in the county jail (Arson, setting a fire in his cell trying to say that he was suicidal for a move to a medical unit). [Appellant] received disciplinary charges for fighting as well as for the misuse of electronic equipment while incarcerated. Also while incarcerated he was convicted of narcotics trafficking, money laundering, racketeering, possession/distribution/dispensing CDS, [and] possession of electronic device while confined. [Appellant] was sentenced to an additional [fifteen] years [pursuant to a] plea agreement. His disruptive criminal behavior continues during his period of confinement within the facility as well as the community. This criminal activity warranted a closer look for placement in MCU as per [N.J.A.C.] 10A:5-2.1 by the present Administration.

In conclusion, the [Committee] must take into consideration if an alternate housing location, custody status, or the possibility of transferring [appellant] to another facility would alleviate the need for MCU placement. The [C]ommittee has evaluated the options available to include transfer to an out[-]of[-]state facility. In accordance with [N.J.A.C.] 10A:5-2.5, and [appellant's] criminal history and the seriousness of the infractions committed, it is the decision of this [C]ommittee that a highly secure and structured environment such as the [MCU] would best serve the Administration and the inmate population to maintain the safe orderly operations of a NJDOC facility . . . .

The Department's regulations provide an inmate with the opportunity to challenge an MCU housing designation. N.J.A.C. 10A:5-2.7. On December 30, 2013, appellant filed an administrative appeal from the Committee's decision. On January 10, 2014, Associate Administrator Antonio Campos issued a written decision, in which he concluded that the Committee's decision was appropriate. In his decision, Campos noted that appellant had been "charge[-]free" since his assignment to administrative segregation following his participation in the events that led to his October 7, 2013 sentence. However, Campos stated

While reviewing your history I have found that you were recently sentenced in October of 2013 for several serious crimes including narcotics trafficking, racketeering, conspiracy and money laundering as well as possession of an electronic communication device while incarcerated at NJSP. Moreover, you have been identified [as set forth in the December 6, 2013 criteria record sheet] as having the ability to influence inmates and staff, and therefore require a more secure and structured environment than an Administrative Segregation Unit can offer. Remaining charge[-]free, completing available programs and attending all reviews will assist you in your goal of being released from MCU.

Campos further found that appellant's institutional disciplinary record and recent convictions "pose[d] a risk that has not been mitigated by [appellant's] time in [the Administrative Segregation Unit]." Therefore, Campos upheld the Committee's decision. This appeal followed.

On appeal, appellant argues that his "placement in the prehearing management control unit was arbitrary and capricious and violated the administrative code governing prehearing placement." We disagree.

The United States Supreme Court has clearly stated that an inmate does not have a constitutionally protected liberty interest in his or her placement by the State's penal authority. Sandin v. Conner, 515 U.S. 472, 480, 115 S. Ct. 2293, 2298, 132 L. Ed. 2d 418, 427 (1995). Due process safeguards are only required when a change in an inmate's custody status "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 430.

Relying on Sandin, we have consistently upheld the DOC's institutional prerogative to reclassify an inmate's custodial status based on a variety of reasons. Shabazz v. N.J. Dep't of Corr., 385 N.J. Super. 117, 123 (App. Div. 2006) (finding that an inmate has no protected liberty interest in being placed in a halfway house); Szemple v. Dep't of Corr., 384 N.J. Super. 245, 249-51 (App. Div.) (concluding that there is no protected liberty interest in upholding the DOC's designation of an inmate as "high risk"), certif. denied, 187 N.J. 82 (2006); Muhammad v. Balicki, 327 N.J. Super. 369, 371 (App. Div. 2000) (reducing an inmate's custody status that permitted him to enjoy "more mobility and less supervision in the prison than the general prison population").

The scope of our review of an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).

Applying these standards, we discern no reason to disturb the Associate Administrator's decision upholding appellant's placement in the MCU. The Committee followed the regulations governing MCU placements, and the Associate Administrator's final decision to place appellant in the MCU is supported by sufficient credible evidence in the record. We therefore affirm substantially for the reasons set forth in the Committee's December 24, 2013 decision and the Associate Administrator's decision of January 10, 2014. R. 2:11-3(e)(1)(D).

Affirmed.

1 The Committee "is responsible for hearing cases of inmates referred for placement in the . . . [MCU] and for conducting three[-]month status reviews of inmates assigned to [the MCU]." N.J.A.C. 10A:5-1.3.

2 The Department may assign an inmate to administrative segregation as a sanction for committing an institutional infraction. N.J.A.C. 10A:5-3.1(a). Appellant was assigned to the Administrative Close Supervision Unit prior to the Committee's determination that he should be housed in the MCU.

3 Asterisk offenses "are considered the most serious and result in the most severe sanctions . . . ." N.J.A.C. 10A:4-4.1(a).

4 Hearings must be scheduled within ten business days of the inmate's pre-hearing assignment to the MCU. N.J.A.C. 10A:5-2.8(a)(1).