ROBERT SMALL 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NOT FOR PUBLICATION WITHOUT THE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-3172-19

ROBERT SMALL,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                   Submitted April 12, 2021 – Decided May 6, 2021

                   Before Judges Messano and Suter.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Robert Small, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Christopher C. Josephson,
                   Deputy Attorney General, on the brief).

PER CURIAM
      Following our remand, petitioner Robert Small, an inmate at South

Woods State Prison (SWSP), appeals the November 25, 2019 final agency

decision by the Department of Corrections (Department), denying his claim for

reimbursement for lost, damaged or destroyed property. We affirm.

                                       I.

      On June 28, 2018, petitioner submitted an "Inmate Claim for Lost,

Damaged or Destroyed Personal Property" form, seeking reimbursement for a

pair of sneakers, a few items of clothing and two books. The claim totaled

$114.32. Petitioner alleged he recently purchased the items at the commissary

and would provide the receipts when he could copy them. He alleged his

property was taken after he was transferred to detention. The claim did not list

witnesses. Petitioner indicated this was a follow-up claim from March 21,

2018, because his earlier one was not answered.

      On July 7, 2018, petitioner submitted a second claim.           This one

requested reimbursement of $816.64 for a word processor, storage bins and a

JP-5 tablet, claiming these were damaged by a second shift corrections officer

when he searched petitioner's cell on July 7, 2018.       Petitioner listed two

witnesses: Abdul Fraser and "Jay." The claim stated petitioner purchased the

word processor from a business in Trenton. The storage bins were purchased


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at the prison. The JP-5 tablet was purchased from the "J-pay system." His

claim form stated he had an inventory sheet to verify purchase of the two

storage bins and a receipt for the word processor. Petitioner indicated he

would send copies of these when he made them.

         The claims were investigated. In a memorandum dated August 1, 2018,

the investigating sergeant recommended denial of both claims.          Citing the

SWSP Handbook, the memorandum provided that an inmate "shall be

responsible for his own personal property and shall keep personal property at

his or her own risk." The investigating sergeant recommended denial of the

claims because petitioner "failed to demonstrate that this institution was

negligent in the handling or storage of his property." Petitioner al so failed to

prove ownership or possession of the property because he did not submit

supporting documentation as required by the Handbook. The memorandum

stated that "[i]nmates retain personal property at their own risk."           Any

unsecured property was at risk and did not "constitute negligence on custody's

part."

         On August 14, 2018, the prison's administrator denied petitioner's claims

for reimbursement, finding that petitioner "failed to demonstrate that [SWSP]

was negligent in the handling or storing of your property." Petitioner also did


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not document ownership of the items as required by the Handbook.          The

Administrator found petitioner's claims had "no merit."

      Petitioner appealed the final decision. The Department filed a motion

requesting a remand so that the claims could be reinvestigated. On November

27, 2019, we remanded the case, directing completion of the investigation

within ninety days. We did not retain jurisdiction. Small v. Dep't of Corr.,

No. A-0292-18 (App. Div. Nov. 27, 2019).

      SWSP reinvestigated the claims. Abdul Frazier, the person named by

petitioner as the witness to the alleged vandalism on July 7, provided a

statement that he did not recall the incident. The other witness could not be

identified because petitioner identified him only by a nickname and cell

number. The officer accused of damaging petitioner's property, provided a

statement that petitioner's property was not damaged when he searched the cell

for contraband.

      Petitioner was interviewed. He provided a typewritten statement that

listed the items for which he sought reimbursement and stated there were

receipts or inventory sheets to support these claims. He did not provide these

with his statement.




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      On April 1, 2020, petitioner requested that we reopen his appeal,

advising there was "inaction" by the Department on his claims for

reimbursement. The appeal was reopened under a new docket number.

      Petitioner appeals the November 25, 2019 final agency decision. He

raises the following arguments:

            POINT I. The Final Administrative Decision is a
            standard response to all Inmates' Property Claim
            Forms, and is completely outdated, unrealistic, and is
            utterly irrelevant to this matter.

            POINT II. The defendants in this matter failed to
            conduct a meaningful investigation to verify that Mr.
            Small was authorized to possess, and in fact owned,
            the items in question, as required by N.J.A.C. 10A:2-
            6.1(b).

            POINT III.      The defendants failed miserably to
            comply with N.J.A.C. 10A:2-6.1(b), which was
            erected to safeguard prisoners' Due Process Right[s].

            POINT IV. The Due Process Clause of the Fourteenth
            Amendment protects a prisoner's life, liberty, and
            property. The failure to comply with N.J.A.C. 10A:2-
            6.1(b) violates Mr. Small's Fourteenth Amendment
            Right[s].

                                     II.

      Our review of an administrative agency's final decision is limited.

Kadonsky v. Lee,  452 N.J. Super. 198, 201-02 (App. Div. 2017) (citing In re

Stallworth,  208 N.J. 182, 194 (2011)).     "We will not reverse an agency's

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judgment unless we find the decision to be 'arbitrary, capricious, or

unreasonable, or [ ] not supported by substantial credible evidence in the

record as a whole.'" Id. at 202 (alteration in original) (quoting Stallworth,  208 N.J. at 194). We are not, however, bound by the "agency's 'interpretation of a

statute or its determination of a strictly legal issue.'" Ibid. (quoting L.A. v. Bd.

of Educ.,  221 N.J. 192, 204 (2015)).

      Under N.J.A.C. 10A:2-6.1(a) an inmate must file a claim for lost,

damaged or destroyed property with the administrator or designee. 1 Claims are

investigated by:

            1. Obtaining statements from the inmate, witnesses
            and correctional facility staff; and

            2. Verifying that the inmate was authorized to have
            and did in fact, possess the personal property named in
            the claim.

            3. Verification of possession of lost, damaged or
            destroyed personal property may be made by review
            of applicable documentation such as the IIS–1M
            Inmate Inventory Sheet maintained by the correctional
            facility (see N.J.A.C. 10A:1–11).

            [N.J.A.C. 10A:2-6.1(b)(1) to (3).]


1
   The regulations were amended after petitioner submitted his claims but
before the reinvestigation. The amended regulations were effective September
4, 2018.  50 N.J.R. 1964(a) (Sept. 4, 2018). The changes are not material to
this appeal.
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When a claim is denied, it is not further processed. N.J.A.C. 10A:2-6.1(f).

      We are satisfied from the record that the administrator's denial of these

claims was not arbitrary, capricious or unreasonable.         The record shows

petitioner's claims were investigated and then reinvestigated. His witness was

interviewed and did not support the claim that petitioner's property was

damaged by an officer searching his cell. The other potential witness was not

adequately identified by petitioner. The names of witnesses that petitioner

includes in his appellate brief were not identified in the claim forms.

      Petitioner submitted a written statement in support of his claims, but he

did not provide the receipts or inventories that he referenced. He included four

documents in his appendix to this appeal that he argues supports his claims. It

does not appear that these were part of the record before the Department. We

decline to consider documents that were not part of the record before

respondent. See Venner v. Allstate,  306 N.J. Super. 106, 111 (App. Div. 1997)

("[I]f not part of the record below, we cannot consider these matters."). Even

if they were provided, one of the documents is from three years earlier without

proof that petitioner still owned the items; another is undated; a third does not

explain why it was received a year after the date on the receipt; and the fourth

does not indicate the items listed were accepted. None of the other receipts or


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inventories referenced in petitioner's statement are included in his appendix.

The record does not support petitioner's claim that the Department was

arbitrary, capricious or unreasonable in denying these claims. Nothing showed

negligence by SWSP or that petitioner was in possession of any of these items.

      It is simply not the case, as petitioner argues, that the Department is

required to safeguard petitioner's personal items or to disprove petitioner's

claim of ownership. In this case, the Department conducted the investigation

required by administrative regulations. We are satisfied there was substantial

compliance with the Department's regulations.        We discern no basis to

conclude that the Department's decision was arbitrary, capricious or

unsupported by credible evidence. Henry v. Rahway State Prison,  81 N.J. 571,

579-80 (1980).

      After carefully reviewing the record and the applicable legal principles,

we conclude that petitioner's further arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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