GERRY, District Judge
Plaintiff, an inmate at Leesburg State Prison, brings this action under 42 U.S.C. § 1983, claiming that prison officials violated his federal constitutional rights by denying him classification to minimum custody.
The State of New Jersey incarcerated plaintiff after his conviction on several counts of violation of N.J.S.A. 24:18-1 et seq., relating to the possession, manufacture, distribution or possession with intent to distribute narcotic or controlled dangerous substances.
The New Jersey Department of Corrections has promulgated regulations governing reduced custody eligibility. The regulations vest the Institutional Classification Committee with broad discretion whether to classify an inmate to reduced custody, provided however that he is not disqualified from consideration by virtue of conviction for certain specified crimes.
Standard 853.6(E), formerly standard 853.281, disqualifies from reduced custody consideration any inmate convicted of drug offenses under N.J.S.A. 24:18-1, 21-19, and 21-20, where the amount of the drug or controlled substance involved in the offense exceeds any amount normally associated with personal consumption, so that a commercial motive for the offensive activity may be inferred. In the vernacular, this standard has come to be known as the "drug profiteer" disqualification from minimum custody eligibility.
The Leesburg State Prison Classification Committee has apparently obtained authority from the Superintendent of Prisons to grant waivers to certain individuals who otherwise would not be eligible for minimum custody status under standard 853.6(E).
Plaintiff Johnson apparently falls within the "drug profiteer" disqualification from minimum custody eligibility and alleges that the prison authorities have accordingly denied him access to minimum custody status. Johnson's complaint attacks the standard itself and the administration of the waiver policy as violations of the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution. As for relief, plaintiff prays for a declaratory judgment that the standard and the waiver system are unconstitutional, an injunction commanding prison officials to reclassify plaintiff to minimum custody and damages in the amount of $50,000.
Although this complaint is cast as a civil rights action under 42 U.S.C. § 1983, defendants contend that the action partakes of the nature of an application for a writ of habeas corpus. Recognizing the absence of any allegation that plaintiff has presented his claims to an appropriate state court, the defendants move to dismiss the complaint for a failure to exhaust state remedies, as would be required under 28 U.S.C. § 2254.
This is defendants' second motion to dismiss the complaint for a failure to exhaust state court remedies.
In their original motion, defendants argued that plaintiff's reclassification to minimum custody would necessarily result in the shortening of his sentence -- apparently because inmates in minimum custody enjoy opportunities to earn work credits unavailable to inmates in higher custody classifications. N.J.S.A. 30:4-92. Because of the connection of minimum custody status with a reduced sentence, defendants argued that the entire complaint, including plaintiff's claim for damages, constitutes a challenge to the duration of his confinement. As such, the court was obliged, in defendants' view, to treat it as a petition for habeas corpus under the rule of Preiser v. Rodriguez, 411 U.S. 475, 500, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973).
This court denied defendants' original motion, holding that the statute under which inmates earn work credits, N.J.S.A. 30:4-92,
does not automatically confer upon inmates in minimum custody any additional work credits. That is, the defendants' characterization of the instant case as a habeas corpus matter rested upon a premise unsupported by the statute: that reclassification to minimum custody status necessarily entails increased work credits and results in a shorter sentence.
The court therefore denied the motion, without squarely deciding the issue of whether, assuming that attainment of minimum custody did entail a shorter sentence, the instant suit should proceed as a habeas, or alternatively, a § 1983 claim.
By letter to the court dated November 29, 1982, defendants conceded the accuracy of the court's reading of N.J.S.A. 30:4-92. The state now, however, attempts again to establish an equation of minimum custody status with award of additional work credits. The state's vehicle is an affidavit by Michael R. Wiechnik, Chief of the Bureau of Classification Services, New Jersey Department of Corrections. Mr. Wiechnik affirms that the Department generally, perhaps always, does award the permissible additional work credits to any and all inmates who attain minimum custody classification:
The Department's policy has always been that an inmate may be classified minimum custody if and only if he is considered sufficiently trustworthy to be employed in an honor camp, farm or detail (the condition in the statute for earning additional work credits in minimum custody).
Thus, it has been the Department's policy that an inmate classified minimum security automatically receives the additional remission time authorized by N.J.S.A. 30:4-92.