by the State of New Jersey. The regulations provide for enhanced procedural protections in the event of commitment to certain types of close custody units, such as the MCU and administrative segregation. See 10A:5-2. These detailed procedures, applicable where inmates have committed disciplinary infractions or pose a threat to property or the safety of others, would be rendered nugatory if the superintendent possessed complete discretion to commit inmates to close custody for any reason, including punishment for disciplinary infractions or curbing a threat of violence, under the more relaxed procedures applicable to protective custody. If the decision to commit an inmate to protective custody need not be justified by reference to the criteria set forth in the definition of protective custody, there would be nothing to prevent the administrator from circumventing the procedures prescribed for commitment on other grounds.
The court thus concludes that the Hewitt requirements for the creation of a liberty interest are met by New Jersey's regulations governing confinement in protective custody. The Thompson requirement that the defined substantive predicates constitute "the only reasons for depriving the prisoner of the liberty interest in question" is also satisfied. Layton, 953 F.2d at 849 (citing Thompson, 490 U.S. 454). In Layton, the Third Circuit found that the criteria for confinement listed in the regulatory definition of MCU constituted an "exhaustive list which circumscribes and limits official discretion." 953 F.2d at 848. The regulatory definition of Protective custody precisely parallels the MCU definition, providing a similar list of predicates for a particular type of confinement. Following Layton, the court concludes that the criteria embodied in this regulatory definition, which states that protective custody is confinement "in order to provide protection to the inmate from injury or harm actually threatened or reasonably believed to exist," represent an "exhaustive list" of the bases on which an inmate may be protectively confined, thereby satisfying the requirements of Thompson. N.J.A.C. 10A:5-1.3.
The New Jersey regulations thus provide an inmate a reasonable expectation that he or she will remain free of involuntary commitment to protective custody unless a threat of harm is actually made or reasonably believed to exist. Accordingly, the court concludes that these regulations create a liberty interest in remaining a part of the general prison population, free of restrictive confinement in involuntary protective custody.
Having established the existence of a liberty interest, it next must be determined what process is due in proceedings that may deprive an inmate of that interest. At the Third Circuit stated in Layton, "the determination of the process due an inmate who asserts a claim based on a state-created liberty interest is governed by federal constitutional law." 953 F.2d at 8 49 (citations omitted). Under Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the court must consider "the private interests at stake in a government decision, the governmental interests involved, and the value of procedural requirements in determining what process is due under the Fourteenth Amendment." Hewitt, 459 U.S. at 473.
Banks' private interest is, as the Supreme Court found in a case involving administrative segregation, "not one of great consequence." Id. The reasoning employed by the Court in that case applies with equal force to Banks' circumstances:
He was merely transferred from one extremely restricted environment to an even more confined situation. Unlike disciplinary confinement the stigma of wrongdoing or misconduct does not attach to administrative segregation . . . Finally, there is no indication that administrative segregation will have any significant effect on parole opportunities.
Id. Weighing such a private interest against the governmental interest in confining an inmate who posed a threat to the safety of other prisoners and guards, and in view of the "wide-ranging deference" accorded prison administrators in "the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security," Bell v. Wolfish, 441 U.S. 520, 547, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Hewitt Court concluded that:
[the prison administrators] were obligated to engage only in an informal, nonadversary review of the information supporting [the inmate's] administrative confinement, including whatever statement [the inmate] wished to submit, within a reasonable time after confining him to administrative segregation.
459 U.S. at 472.
In the present case, Banks' interest in remaining in the general prison population is no weightier than the Hewitt inmate's interest in remaining out of administrative segregation. The governmental interest in this case may be less significant, since the predicate for placing an inmate in protective custody is that there exists a risk to his safety, not to the safety of others. However, there is no doubt that preserving the safety of all inmates and preserving order and discipline within the prison is an important government interest and lies within the core functions of the prison administration. The court is therefore satisfied that informal procedures, of the kind described by the Supreme Court in Hewitt, are adequate to vindicate an inmate's due process interest in remaining free of involuntary protective confinement.
Banks' objections to the procedure attending his involuntary confinement concern the prison authorities' reliance on an anonymous telephone caller, who reported that Banks was in danger if left in the general prison population. Banks contends that when his counsel substitute asked at the hearing who had spoken with the anonymous caller, Hearing Officer Larkins replied that she did not know who had received the telephone call. Plaintiff Opp. Ex. 5. Banks appears to object that this procedure violated the state's own regulations and, in the alternative, if permitted by the regulations, nonetheless violated his due process rights, because of the unreliability of the information on which his confinement was based. Banks further objects that the description of his drug trafficking in the Internal Affairs report was not reliable because it was uncorroborated by other evidence.
As stated above, the federal constitution, and not state law, determines the nature of the procedural protections due process requires. However, "state regulations may be of some assistance and guidance in determining" what process is due. Layton, 953 F.2d at 851. But, whether the state regulations or the federal constitution directly is relied upon as a source of procedural standards, the court concludes that the process afforded Banks was appropriate in light of the public and Governmental interests involved and "the risk of an erroneous deprivation of [private] interest through the procedures used." Mathews, 424 U.S. at 335.
The procedures of which Banks complains did not violate the regulations governing commitment to protective custody. Although the regulations prescribe in detail various measures that must be undertaken to insure the reliability of confidential informant information considered by the hearing officer,
no such requirements apply to information provided by anonymous informants. Banks contends that consideration of the anonymous informant's warning conflicted with the requirement that, on appeal, the Superintendent consider "whether the decision was based on reliable information." N.J.C.A. 10A:5-5.3. The court initially observes that Banks' appeal has apparently not yet been adjudicated. But, regardless of the outcome of that decision, the court does not find that the requirement that the Superintendent weigh reliability on appeal imports any requirement that all evidence considered in the hearing process meet a threshold reliability standard. Nor is it apparent to the court that the anonymous informant's information was wholly unreliable, in view of the corroborating evidence that Banks was involved in drug trafficking that might expose him to a risk of violence.
Similarly, the process afforded Banks does not, in the court's view, fail to satisfy the "specific dictates of due process" prescribed by Mathews and Hewitt. As in Hewitt, the inmate received notice of the charges against him and was afforded an opportunity to present evidence on his behalf. See 459 U.S. at 477. Further, plaintiff was informed of the basis for initiation of the protective custody hearing procedure prior to the hearing and given an opportunity to respond. Banks appears to object to the inherent unreliability of anonymous informant reports. However, the court need not rule that information anonymously provided, standing alone, can provide a basis for involuntary commitment to protective custody satisfying due process. In this case, the claims of the anonymous informant were corroborated by information that Banks was involved in drug trafficking, which might reasonably be thought to expose him to a risk of violence from other inmates. The plausibility of this risk was further bolstered by information in the Internal Affairs report that Banks employed an "enforcer" in his drug trafficking operations, thereby suggesting the possibility
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 801 F. Supp. 1422.
ORDER - September 11, 1992, Filed
This matter having come before the court upon the motion of defendants William Fauver, Patrick Arvonio, and Timothy Dill to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted; and the court having considered the submissions of the parties; and for the reasons expressed in the accompanying opinion; and for good cause shown,
IT IS this 10 day of September 1992, hereby
ORDERED that the motion of defendants William Fauver, Patrick Arvonio, and Timothy Dill to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted be and hereby is granted; and it is further
ORDERED that this action be and hereby is dismissed.
H. LEE SAROKIN, U.S.D.J.