ROLANDO TERRELL v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROLANDO TERRELL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________

December 13, 2016

Submitted December 5, 2016 Decided

Before Judges Nugent and Haas.

On appeal from New Jersey Department of Corrections.

Rolando Terrell, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Rolando Terrell, an inmate in the State's correctional system, appeals from the January 22, 2015 final determination of the Department of Corrections ("DOC"), which continued his placement in involuntary protective custody ("IPC"). We affirm.

Appellant is serving a life sentence without the possibility of parole for murder, robbery, and numerous other offenses. According to a "confidential report" relied upon by the DOC, appellant is a member of a Security Threat Group ("STG")1 known as the Bloods Double I Set.2 On July 30, 2014, the DOC's Special Investigations Division ("SID") learned that appellant had been involved in a fight with another inmate, who was also a member of the same STG. The SID discovered a letter in that inmate's personal property which contained threats against appellant. Because of these threats to appellant's safety, the DOC placed appellant in IPC on July 30, 2013. The DOC continued appellant in this placement following a January 2014 review of his status.

Appellant did not request an administrative appeal of the DOC's January 2014 determination. Instead, he filed an interlocutory appeal with this court.3 On December 8, 2014, we summarily remanded the matter to the DOC so that appellant could pursue his administrative appeal.

Thereafter, the DOC gave appellant advance notice of the January 14, 2015 hearing on his appeal. Appellant requested and received the assistance of counsel substitute. The DOC also afforded appellant the opportunity to obtain and submit witness statements and other documentary evidence.

At the conclusion of the proceeding, the hearing officer issued a written determination, finding that appellant's continued placement in IPC was necessary to ensure his safety and the orderly running of the institution. This appeal followed.

On appeal, appellant argues that his placement in IPC is a violation of his protected liberty interest. He also asserts there is insufficient credible evidence to support the DOC's decision to continue his placement in IPC. 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 DOC's decision to continue appellant's placement in IPC. The DOC followed the regulations governing IPC placements, N.J.A.C. 10A:5-5.1 to -5.24, and the hearing officer's final decision is supported by sufficient credible evidence in the record. We therefore affirm substantially for the reasons set forth in the hearing officer's January 22, 2015 decision. R. 2:11-3(e)(1)(D).

Affirmed.

1 A "STG" is a group of inmates that pose "a threat to the safety of the staff, other inmates, the community or causes damages to or destruction of property, or interrupts the safe, secure and orderly operation of the correctional facility(ies)." N.J.A.C. 10A:1-2.2.

2 Although we have reviewed the entire confidential report, we do not discuss the contents of it at length here in order to preserve its confidentiality.

3 Docket No. A-5179-13.