DANIEL DELGADO 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NOT FOR PUBLICATION WITHOUT THE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

A-4266-13T3

A-0923-14T3

A-1543-14T1

DANIEL DELGADO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

KING VICTORIOUS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________

December 14, 2015

Submitted December 2, 2015 Decided

Before Judges Sabatino and O'Connor.

On appeal from the New Jersey Department of Corrections.

Daniel Delgado, a/k/a King Victorious, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Randy Miller, Deputy Attorney General and Marvin L. Freeman, Deputy Attorney General, on the briefs).

PER CURIAM

These four appeals, calendared back-to-back, are consolidated for purposes of our opinion. Appellant Daniel Delgado, also known as King Victorious, is an inmate serving a forty-year sentence for murder at the New Jersey State Prison. He primarily appeals two final decisions of the Department of Corrections (DOC) that upheld the Management Control Unit Review Committee's (Review Committee) determination to retain him in the Management Control Unit (MCU). He also challenges the manner in which the DOC handled his mail. After reviewing the record, briefs, and applicable legal principles, we affirm.

I

In November 2013, appellant was placed into the MCU, a close custody, segregated unit within the prison. See N.J.A.C. 10A:5-2.1 to -2.31. An inmate is assigned to the MCU if the Review Committee determines he or she "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." N.J.A.C. 10A:5-1.3. The Review Committee must hold a hearing and review an inmate's placement in the MCU every three months. N.J.A.C. 10A:5-2.6.

Appellant was initially placed in the MCU because, since his incarceration in 2001, he had been found guilty of committing eighteen infractions within the prison, fourteen of which were the more serious asterisk offenses. These offenses included money laundering $86,000 and engaging in gang-related activity. Appellant is a high-ranking member of the Almighty Latin King and Queen Nation ("Nation") and has claimed he has the ability to control the Nation's activities within the prison system throughout the State. Because his actions indicated he was a threat to the safety of others and to the orderly running of the prison, on November 26, 2013, the Review Committee determined it was necessary to confine appellant to the MCU. The Committee stated in part

Since November 11, 2012, the inmate had received 18 charges and 14 of them were asterisk charges, serious violations. In total, 17 of his 18 charges resulted in him receiving Administrative Segregation Housing (sanctions). On November 21, 2006 he was found guilty of laundering money with others to . . . extort . . . [86,000 dollars] . . .

Since December 2009, he received 7 charges that were gang related[;] . . . As late as May 2013 Latin King Gang material was confiscated from his cell. This inmate has an influential position in the Latin King and Queen Nation and in the New Jersey Department of Corrections. Through his own admission, in professional reports, he proclaimed he has the ability to control activities for the Latin Kings and Queen Nation throughout the prisons.

The committee believes this inmate needs to have his actions limited. There is a need to contain this inmate in a highly structured environment. He is definitely a key player in a recognized Security Threat Group. The magnitude of his control and power within the Latin King and Queen Nation is a threat to the safety and orderly running of the institution. The structure provided by the Management Control Unit is considered to be the most appropriate assignment for inmate Delgado at this time.

Appellant administratively appealed the Review Committee's decision but, on January 24, 2014, an associate administrator of the New Jersey State Prison issued a final decision upholding the Committee's determination.

On appeal, appellant challenges the final decision on the grounds the Review Committee failed to adhere to N.J.A.C. 10A:5-2.6(c), (e), (l), (m), and (o). He also contends, among other things, that he was not permitted to call any witnesses during the hearing and that the Review Committee failed to consider his handwritten statement. He further claims the final decision was deficient for failing to comply with N.J.A.C. 10A:5-2.4(a)(1)-(5),(7) and (9), as well as N.J.A.C. 10A:5-2.7 (a) and (b).

Since his placement in the MCU in November 2013, the Review Committee has reviewed appellant's status every three months. Following a review hearing held on August 18, 2014, the Review Committee again determined appellant needed to remain in the MCU. In addition, the Review Committee rejected appellant's request that he be promoted from Phase I to Phase II status.1 The Review Committee found, in pertinent part, as follows

At this time, the Committee believes that continued placement in the MCU is necessary due to your extensive disciplinary history as well as your influential position within the Almighty Latin King and Queen Nation, a security threat group. Through your own admission you have professed the ability to control activities within this security threat group throughout the New Jersey Department of Corrections . . . . Administrative Segregation sanctions have failed to deter your behavior and [you] have yet to complete the necessary programs required for consideration of release from the MCU. Your actions as well as your lack of regard for the rules and regulations continue to pose a threat to the safety and security of any correctional facility.

Appellant sought administrative review of the Review Committee's decision, but on September 10, 2014, his appeal was rejected on the ground it was not timely filed pursuant to N.J.A.C. 10A:5-2.7. On appeal appellant contends that not only was his appeal timely filed, but also the Review Committee's decision to confine him to the MCU and to retain him in Phase I was erroneous. The record informs us that on February 27, 2015, appellant was advanced to Phase II, rendering moot his appeal of the August 18, 2014 determination that denied his request to be promoted to Phase II.

Appellant also claims on appeal that he did not receive certain certified mail from friends and family. He filed various "Inmate Remedy System Forms" but, dissatisfied with the response he received from the DOC, complained to the Office of the Corrections Ombudsman. That office responded by letter dated November 5, 2014, advising that it could not assist appellant with any legal matters. Although both his Notice of Appeal and brief indicate he is appealing the November 5, 2014 letter from the Office of the Corrections Ombudsman, he does not address how this office erred.

Finally, in a separate appeal, he claims the DOC improperly handled his "legal" mail, in violation of N.J.A.C. 10A:4-3.1(6) and N.J.A.C. 10A:18-3.4(b), (c), and (d).

II

Our review of agency action is limited. "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. N.J. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). Moreover, the Legislature has provided for the broad exercise of the DOC's discretion in all matters regarding the administration of a prison facility. Russo v. N.J. Dep't of Corrs., 324 N.J. Super. 576, 583 (App. Div. 1999).

Neither the United States Constitution nor our Constitution recognizes a right to a less restrictive custody status. Smith v. N.J. Dep't of Corrs., 346 N.J. Super. 24, 29 (App. Div. 2001). Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Ibid. As we further observed

[U]nder State law, the Commissioner of the [DOC] has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); . . . . Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the [DOC]. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1.

[Id. at 29-30 (citations and quotations omitted).]

The New Jersey State Prison system is maintained and operated by the DOC, N.J.S.A. 30:1B-8, which is headed by the Commissioner of Corrections. N.J.S.A. 30:1B-4. Classification of state prisoners is confined to the Commissioner's sole discretion. N.J.S.A. 30:1B-6, -9; N.J.S.A. 30:4-91.1 to -91.3, -92.

Basic to the resolution of any proceeding seeking review of prison administrative action is the legal principle that courts will not interfere with the internal administration of the institution, absent action by the prison authorities which deprives an inmate of his constitutional rights or is clearly capricious or arbitrary.

[State v. Rydzewski, 112 N.J. Super. 517, 521 (App. Div. 1970).]

Accordingly, the Commissioner of the DOC has considerable discretion in determining the custody status of inmates. Smith, supra, 346 N.J. Super. at 29. Further "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id. at 30 (citing N.J.A.C. 10A:9-4.2).

As indicated above, appellant's challenge to the decision denying him a promotion to Phase II is now moot. Regarding the findings to retain appellant in the MCU, given the evidence upon which these findings were made, and our standard of review as to these discretionary findings, we discern no reason to disturb the agency's decision. As for the remaining arguments appellant raises, we are satisfied they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 Neither party cited to any law clarifying what Phase I and Phase II status means, but we surmise these designations refer to the extent to which an inmate is deprived of privileges while in the MCU. We infer that moving from Phase I to Phase II indicates the Review Committee is satisfied the inmate achieved certain goals, thus earning the right to move to a higher phase where he is entitled to exercise greater privileges.