ANTHONY B. ELI 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NOT FOR PUBLICATION WITHOUT THE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-0121-16T3


ANTHONY B. ELI,

        Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_______________________

              Submitted December 7, 2017 – Decided December 21, 2017

              Before Judges Simonelli and Haas.

              On appeal from the New Jersey Department of
              Corrections.

              Anthony B. Eli, appellant pro se.

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Melissa Dutton
              Schaffer, Assistant Attorney General, of
              counsel; Erica R. Heyer, Deputy Attorney
              General, on the brief).

PER CURIAM

        Appellant    Anthony    B.   Eli   appeals    from   the   final    agency

decision of respondent New Jersey Department of Corrections (DOC),
which denied him full minimum custody status and continued his

gang minimum custody status.      We reverse.

      Eli is presently an inmate at South Woods State Prison (SWSP).

He   is   serving   a   twenty-five   year   and   fifteen-day   term    of

imprisonment for his 2011 conviction for burglary and theft.          Upon

his incarceration, he was assigned to gang minimum custody status.

      In 2015, the SWSP Institutional Classification Committee

(ICC)1 reviewed Eli's custody status and           issued an objective

reclassification scoring instrument, which contained the following

scores:

      Severity of Current Offense:                 3
      Prior Assaultive Off. History-Last 10yr      0
      Escape History-Last 5yr incarceration        0
      History of Institutional Viol.-Last 5 yr     0
      Number of Disciplinary Reports              -2
      Most Severe Disciplinary-Last 12 mth         0
      Age                                         -2
      Program Participation                       -2
                                              ________

                                  Total Score           -3




1
   Members of a prison's ICC include the Administrator, Associate
Administrator, Assistant Superintendent or designee, the Director
of Education or designee, the Social Work Supervisor or designee,
the Correction Major or custody supervisor designee, and the
supervising Classification Officer or designee. N.J.A.C. 10A:9-
3.2(a).     Other staff members "may be designated by the
Administrator to serve as members or alternate members of the
ICC." N.J.A.C. 10A:9-3.2(b).

                                      2                           A-0121-16T3
Based on his overall objective classification score of minus three,

Eli was eligible for placement into full minimum custody status.

See N.J.A.C. 10A:9-2.6(a)(3).    On January 21, 2016, the SWSP ICC

approved Eli's placement into full minimum custody status.

     In February 2016, the DOC transferred Eli to Bayside State

Prison (BSP).      The BSP ICC approved Eli's placement into full

minimum custody status.    One month later, the DOC transferred Eli

back to SWSP and placed him back into gang minimum status.               On

April 26, 2016, five of the six members of the SWSP ICC approved

Eli's placement into full minimum custody status.         However, on May

17, 2016, SWSP Administrator Ronald Riggins, an ICC member, denied

Eli full minimum custody status for the following reasons:

                In accordance with N.J.A.C. 10[A]:9-4.5
           it is in the best interests of the public at
           large and for the safety of the community not
           to approve inmate ELI, ANTHONY [full minimum]
           status and place him in a Minimum Security
           housing   setting.     Inmate   ELI,   ANTHONY
           presently has over [ten] years and [three]
           months remaining on his present sentence. I
           believe when considering the large amount of
           time remaining on his present sentence,
           coupled with the reduced amount of security
           found in [full minimum] settings presents
           inmate ELI, ANTHONY as a potential escape risk
           if his [full minimum] status were to be
           approved.

As a result, Eli remained in gang minimum custody status.

     Eli   filed    a   grievance,       which   was   referred   to   the

Classification Services Unit at the Central Office for review.           On

                                     3                            A-0121-16T
3 June 10, 2016, Tiffany Fairweather2 advised Eli that he was denied

full minimum custody status "due to an outdated psych[ological]

report"   and    that   "[o]nce    [his]    psych[ological]    report     [was]

updated [he would] be reconsidered for reduced custody status" Eli

countered that his last psychological report was dated December

2015, and he was told he was denied full minimum custody status

"due to [his] max[imum term]."        Fairweather responded that she had

given her response and the matter was considered closed.             On June

13,   2016,      the    Central     Office     committee      approved       the

Administrator's decision to deny Eli full minimum custody status.

This appeal followed.

      "Changes    in    inmate    custody   status   within   a   particular

correctional facility shall be made by the [ICC]." N.J.A.C. 10A:9-

4.4(a)    (emphasis      added).       In     emergency    situations,         an

Administrator can act to increase an inmate's custody status, but

the ICC must ultimately approve that decision.             N.J.A.C. 10A:9-

4.4(2).

      In reviewing a request for a change in custody status, the

ICC utilizes an objective reclassification scoring instrument for

male inmates, which includes assessment scales that are used to

generate the inmate's reclassification score.              N.J.A.C. 10A:9-


2
   The record does not indicate what position Fairweather held
with the DOC.

                                       4                                A-0121-16T3
2.2(a)(3), (b). The assessment scales are: severity of the offense

scale, escape history scale, institutional violence scale, prior

felony   convictions     scale,   stability      factors    scale,     number    of

disciplinary    reports    scale,     severity    of    offense––disciplinary

infractions scale, current age scale, and program participation

scale.   N.J.A.C. 10A:9-2.2(b).        In reviewing those scales, the ICC

must assess and assign points to the objective criteria.                 N.J.A.C.

10A:9-2.6(a).      The total points determine the custody status on

the reclassification instrument for male inmates.                      Ibid.     An

inmate's   score    of    four    points   or    less      "shall    indicate     a

recommendation     for    placement     into     minimum     custody     status."

N.J.A.C. 10A:9-2.6(a)(3).

     Although an inmate has no right to reduced custody status,

N.J.A.C. 10A:9-4.2, and although the ICC is not obligated to grant

full minimum custody status even if an inmate qualifies, N.J.A.C.

10A:9-4.6, the DOC's decision to deny reduced custody status must

not be arbitrary, capricious, or unreasonable, or unsupported by

credible evidence in the record.           Henry v. Rahway State Prison,


81 N.J. 571, 579-80 (1980); White v. Fauver, 
219 N.J. Super. 170,

180 (App. Div. 1987).

     Here, a majority of the SWSP ICC members approved Eli's

placement into full minimum custody status.                  The DOC cites no

authority empowering Riggins, either as an Administrator or a

                                       5                                  A-0121-16T3
member of the ICC, to overrule the ICC's majority decision.        Even

if Riggins was acting as a member of the ICC, the DOC cites no

authority that requires unanimity to reduce an inmate's custody

status.

     Further, even if Riggins had the authority to overrule the

ICC, the record does not support his decision to deny Eli full

minimum custody status.     First, although Eli had more than ten

years remaining on his maximum term, according to his SWSP Face

Sheet, his minimum term expires on December 22, 2017, which was

approximately one year and seven months from the date of Riggins'

decision.    Thus, it was unreasonable for Riggins to base his

decision on the "large amount of time remaining on [Eli's] present

sentence" without considering his minimum term.           Second, the

remaining time on an inmate's term is not an objective criteria

for the reclassification scoring instrument for male inmates.        See

N.J.A.C. 10A:9-2.6.   In addition, there was no evidence whatsoever

that Eli was a potential escape risk.      Accordingly, we conclude

that the DOC's decision to deny Eli reduced custody status was

arbitrary,   capricious,   and   unreasonable,   and   unsupported    by

credible evidence in the record.

     Reversed and remanded with direction to forthwith reduce

Eli's inmate custody status to full minimum custody status.           We

do not retain jurisdiction.

                                   6                           A-0121-16T3