S.H. 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NOT FOR PUBLICATION WITHOUT THE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-5183-15T2

S.H.,1

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.


                   Submitted January 28, 2019 – Decided February 11, 2019

                   Before Judges Fasciale and Rose.

                   On appeal from the New Jersey Department of
                   Corrections.

                   S.H., appellant, pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Kevin J. Dronson, Deputy
                   Attorney General, on the brief).



1
     We use initials to protect the privacy of S.H.
PER CURIAM

      S.H. appeals from the final decision of the Department of Corrections

(DOC), denying his request to eliminate or modify contraband seizure forms

utilized by the Special Treatment Unit (STU) at Avenel. We affirm.

      We glean the procedural history and pertinent facts, which essentially are

undisputed, from the record before the DOC. S.H. was involuntarily committed

under the Sexually Violent Predator Act (SVPA),  N.J.S.A. 30:4-27.24 to -27.38,

and resides in the STU. In June 2016, S.H. submitted a grievance claiming "the

DOC is utilizing an improper form at the STU when [it] seize[s] a resident's

personal property." 2 In particular, S.H. contended the STU's "Resident Receipt,

Contraband Seizure Form 171-IIA" incorrectly references N.J.A.C. 10A:3-6,

which generally applies to correctional facilities and, as such, does not pertain

to civil commitment institutions, such as the STU. In a terse written statement,

the DOC acknowledged receipt of S.H.'s inquiry, indicating the issue would be

considered.    Following S.H.'s administrative appeal, the DOC upheld its

decision, but failed to explain its reasoning.



 2 In April 2016, we granted the DOC's motion to dismiss S.H.'s prior appeal of
the STU's seizure of his personal electronic property because the property was
returned to him prior to disposition of that appeal. S.H. v. Special Treatment
Unit, No. A-5489-14 (App. Div. Apr. 19, 2016).
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                                         2
      Thereafter, S.H. appealed the DOC's decision to our court, and we granted

the DOC's motion for a remand to explain the basis of its decision. On June 6,

2018, the DOC issued the following final written decision:

                   The [DOC] utilizes Form[s] "171-IA Seizure of
            Contraband [Report]," and "171-IIA Resident Receipt,
            Contraband Seizure" for the purpose of documenting
            items that are seized from you if they are not permitted
            inside the facility. Th[ese are] . . . departmental form[s]
            and the use of the term "correctional facility" [on the
            forms] does not in any way indicate that you are an
            "inmate" nor does it deny you any of your rights set
            forth in the [SVPA]. Per [N.J.S.A.] 30:4-27.34[(a)], the
            []DOC is "responsible for the operation of any facility
            designated for the custody, care, and treatment of
            sexually violent predators."

                   Regarding the [N.J.A.C.] . . . "10A:3-6"
            [reference] appearing in the upper right hand corner of
            . . . [F]orm [171-IIA] and regarding paragraphs that
            read: "If no disciplinary charges [have been] issued[,
            you have three business days from the date of this
            receipt to send a written appeal to the Administrator
            containing information as to why this item should not
            be considered contraband] . . ." and "If disciplinary
            charges have been issued[, your appeal is through the
            disciplinary process] . . ." These [paragraphs] do not
            pertain to you as a [r]esident [of the STU]. In review
            of your time at the STU[,] you were never subject to
            discipline [pursuant to N.J.A.C.] 10A:3-6[,] nor were
            you issued any disciplinary charges.

This appeal followed.




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      On appeal, S.H. asserts a single argument for our consideration in his

merits brief:

             THE [DOC] ERRED WHEN IT DENIED [S.H.]'S
             ADMINISTRATIVE REMEDY REQUEST TO
             PURGE AND REVISE THE [STU]'S RESIDENT
             RECEIPT CONTR[A]BAND SEIZURE FORM (171-
             IIA . . . ). (Emphasis added).

In his supplemental brief, S.H. further argues:

             THE DECISION OF THE [DOC] IS BOTH
             ARBITRARY AND CAPRICIOUS BECAUSE ITS
             FORM 171-IA, SEIZURE OF CONTRABAND, MAY
             ONLY BE UTILIZED AT A CORRECTIONAL
             INSTITUTION AND PROVIDES MISLEADING
             INFORMATION IF USED AT A CIVIL
             COMMITMENT FACILITY. (Emphasis added).

Finally, in his reply brief, 3 S.H. claims:

             THE [DOC]'S FINAL AGENCY DECISION SHOULD
             BE REVERSED BECAUSE THE [DOC]'S ACTIONS
             ARE UNREASONABLE.

      Our limited review of an administrative agency's action is well settled.

See, e.g., Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,  206 N.J. 14, 27

(2011). Reviewing courts presume the validity of the "administrative agency's

exercise of its statutorily delegated responsibilities." Lavezzi v. State,  219 N.J.

 3
  In his reply brief, S.H. contends he only "is challenging the validity of Form
171-IIA and not 'Form 171-IA[,]'" but the arguments set forth in his
supplemental brief pertain to both forms.
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163, 171 (2014). For those reasons, "an appellate court ordinarily should not

disturb an administrative agency's determinations or findings unless there is a

clear showing that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by

substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate

of Need,  194 N.J. 413, 422 (2008). "The burden of demonstrating that the

agency's action was arbitrary, capricious or unreasonable rests upon the [party]

challenging the administrative action." In re Arenas,  385 N.J. Super. 440, 443-

44 (App. Div. 2006).

         Further, "[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) (citation omitted). The DOC is given broad

discretion in matters affecting the STU. We are not, however, bound by an

agency's statutory interpretation or other legal determinations. Russo,  206 N.J.

at 27.

         Both the DOC and the Department of Human Services (DHS) are

statutorily obligated to participate in the management of the STU and the

treatment of its residents. Specifically, the DOC is charged with the operation


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                                        5
of the facilities,  N.J.S.A. 30:4-27.34(a), and the DHS is required to "provide or

arrange for treatment" of the STU's residents,  N.J.S.A. 30:4-27.34(b). The

Legislature also directed that representatives of both agencies "participate in an

interagency oversight board to facilitate the coordination of the policies and

procedures of the facility."  N.J.S.A. 30:4-27.34(c). In fulfilling that mission,

the two agencies adopted identical regulations for the governance of the STU.

See N.J.A.C. 10:36A-1 to -10; N.J.A.C. 10A:35-1 to -10.

      Here, S.H. contends the STU's use of Forms 171-IA and 171-IIA is

"confusing and misleading" because STU residents need not submit "a written

appeal to the [A]dministrator [when their contraband items are seized]." S.H.'s

argument, though well-intentioned, is misplaced. While the STU is designated

as a treatment facility, and not a correctional facility, the DOC is duly authorized

to operate the STU and uses the forms at issue to document impermissible items

seized from its residents.

      Moreover, the procedures for appeal following confiscation of property

are virtually identical for a STU resident and a prison inmate. Compare N.J.A.C.

10:36A-3.2(b) (providing "three business days" for a STU resident to appeal "by

submitting a grievance to the individual designated to process grievances, with

the DOC Administrator or [Division of Medical Assistance and Health Services]


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Clinical Director . . . . "), with N.J.A.C. 10A:3-6.1(a)(5) ("The inmate shall have

three business days to appeal the seizure to the Administrator or designee.").

Importantly, N.J.A.C. 10:36A-3.2(b) further mandates the staff member who

confiscates a STU resident's property to notify the resident of the appeal

procedure. Accordingly, even if Form 171-IIA could be construed as confusing,

STU residents are apprised of the appeal process. Nor has S.H. demonstrated

that the STU's residents will be time-barred by the continued use of Form 171-

IIA.4

        We therefore discern nothing arbitrary, capricious, or unreasonable in the

DOC's use of the forms at issue here. Such decisions are committed to the

discretion of the DOC, as the operator of the STU.  N.J.S.A. 30:4-27.34(a).

Consequently, we decline to disturb the DOC's decision, which is supported by

sufficient credible evidence in the record. To the extent not addressed, S.H.'s

remaining arguments lack sufficient merit to warrant discussion in our written

opinion. R. 2:11-3(e)(1)(E).


4
  In his reply brief, S.H. included the certification of another STU resident, S.G.,
claiming "sometime in or about the year 2013 or 2014[,]" S.G.'s property was
confiscated, and because S.G. had forwarded Form 171-IIA to the DOC, and not
to the DHS, his time to file an administrative appeal had expired. Because the
record does not indicate that S.H. submitted S.G.'s certification to the DOC, it
is inappropriate for our consideration on appeal. See Zaman v. Felton,  219 N.J. 199, 226-27 (2014).
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Affirmed.




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