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July 19, 1983

DEPARTMENT OF CORRECTIONS, State of New Jersey, JOHN DEGNAN, Former Attorney General of New Jersey, BARBARA A. HARNED, Deputy Attorney General of New Jersey, WILLIAM FAUVER, Commissioner of the Department of Corrections, MICHAEL WIECHNIK, Chief of the Bureau of Classification, Defendants

The opinion of the court was delivered by: GERRY

 Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his rights to due process and equal protection of the law *fn1" with regard to the defendants' interpretation and application of N.J.S.A. 30:4-92 (West 1981). That statute provides:

The inmates of all correctional and charitable, hospital, relief and training institutions within the jurisdiction of the State Board *fn2" shall be employed in such productive occupations as are consistent with their health, strength and mental capacity and shall receive such compensation therefor as the State Board shall determine.
Compensation for inmates of correctional institutions may be in the form of cash or remission of time from sentence or both.

 (Emphasis added.)

 He is seeking damages against the Department of Corrections, State of New Jersey; John Degnan, former Attorney General of New Jersey; Barbara A. Harned, Deputy Attorney General of New Jersey; William Fauver, Director of the State Division of Corrections and Parole; and Michael Wiechnik, Chief of the Bureau of Classification (and former Correctional Analyst).

 I. Background

 Plaintiff is a former inmate of the New Jersey prisons who was confined for various periods of time beginning in 1941. Most recently he was sentenced to an aggregate term of 9-19 years in 1976 and was released on parole in December, 1980. *fn3"

 His earlier convictions and sentences, which followed upon pleas of guilty entered without the advice of counsel or an appropriate waiver thereof, were vacated pursuant to the Supreme Court's ruling in Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963) and related cases.

 While serving time for those convictions, plaintiff was allegedly employed for 4,425 days. See Affidavit of Ralph Ingenito. Upon being imprisoned in 1976, plaintiff, relying upon N.J.S.A. 30:4-92, sought credit against his sentence for the work credits he allegedly earned while serving his vacated sentences. The State denied him that credit.

 Specifically, in a letter dated March 31, 1979, to defendant William Fauver, Commissioner of the Department of Corrections, plaintiff requested that the work credits which he had previously earned be applied to his current sentence just as the State allegedly had done in the cases of Lousi Quatro and Michael Capano, two other inmates. Plaintiff was informed that his request was the subject of an outstanding request for advice from the Attorney General. See Complaint and Affidavit of Defendant Michael Wiechnik.

 Thereafter, the Department of Corrections was advised by Deputy Attorney General Barbara Harned *fn4" that inmates may properly be awarded credits for work performed during a previous sentence which has been overturned only under specific circumstances:

(1) Where an inmate is reconvicted of an offense of which the previous sentence was overturned, he would be entitled to credits earned on the earlier sentence before it was overturned;
(3) Where a parolee is arrested for a second, unrelated crime and returned to prison as a parole violator, he is entitled to credits earned on his original sentence after he returned to prison as a parole violator if it is then overturned.

 There are two principles which guided Ms. Harned in reaching her decision. First of all, she noted that work credits are awarded to aid prison officials in "the maintenance of discipline," and thus a grant of such credits requires "observation and evaluation of a prisoner's conduct." Accordingly, "credit for work performed while serving a sentence should ordinarily be granted against that particular sentence . . . to assure that work credits are used to maintain discipline" and to "ensure the proper observation and evaluation of a prisoner's work performance."

 She also relied upon a principle that "due process does not mandate that time spent in custody must be credited against a sentence resulting from another conviction for an unrelated offense," since to do so could create a situation "wherein a person might have several years of prison time to apply to a sentence for a crime that he has not yet committed or for which he has not yet been prosecuted." She relied upon State v. Marnin, 108 N.J. Super. 442, 445, 261 A.2d 682 (App. Div. 1970), cert. denied, 55 N.J. 598, 264 A.2d 70 (1970); accord, Bauers v. Yeager, 261 F. Supp. 420 (D. N.J. 1966). In other words, the State is concerned about unincarcerated persons having a "bankroll" of credits which they know can be used to minimize any future incarceration.

 Plaintiff's request for work credits was denied, because the facts surrounding his history of incarceration did not fit into any one of the three categories outlined by the Deputy Attorney General. It was and is also defendants' position that plaintiff did receive some credit against his earlier sentence for work performed during those incarcerations. Although work records from his 1941 and 1944 sentences are unavailable, plaintiff allegedly received 299 days of credit for work performed during his 1947 sentence and at least 11 days of credit against his 1944 sentences. See Affidavit of Michael Wiechnik. Plaintiff was and is claiming he earned 885 days of work time credits for 4,425 days of work performed.

 Subsequent to learning of defendant Harned's memorandum opinion, plaintiff again sought to obtain his work credits. He was informed by the Senior Classification Officer at his institution, Kathy Carney, that he did not fall within the categories enumerated in the memorandum opinion, and that the Capano and Quatro cases upon which plaintiff was relying to support his claim were individual cases decided on their own merits and distinguishable from his own.

 Plaintiff was also informed by Kathy Carney that the Department of Correction was not a formal department at the time the Quatro and Capano cases arose, and that the advice from the Attorney General's office was "informal."

 This position was affirmed by Michael Wiechnik, Chief of the Bureau of Correctional Information Systems, in 1980. Plaintiff then sought a review of this determination from defendant Commissioner Fauver who reiterated the Department's previous position.

 It is on the basis of that final administrative determination that plaintiff initiated this action. He has not sought review of this matter in the New Jersey state courts.

 This matter is before the court on defendants' motion for summary judgment and plaintiff's ...

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