On appeal from the Department of Corrections.
Approved for Publication March 24, 1995.
Before Judges Pressler, Landau and Newman. The opinion of the court was delivered by Landau, J.A.D.
The opinion of the court was delivered by: Landau
Sundiata Lumumba is confined at New Jersey State Prison. He appeals an institutional determination, said to represent the "final decision of the Department of Corrections," that labelled two dashiki garments as contraband, not approved for clothing of Main Complex prisoners by the Inmate Handbook published by the Department.
A handbook of internal regulations prohibits shirts that could show "military rank or group membership," and provides that an inmate "may wear only State-issued or institutionally-approved clothing within the prison." Items not specifically listed as approved for possession in the handbook are expressly declared by it as, "Not permitted for inmate possession."
Following Lumumba's administrative appeal of an initial decision which prohibited him from possessing the dashikis, he wasadvised by the Associate Administrator and the Assistant Superintendent that dashikis are not authorized for inmate retention. This appeal followed. We affirm.
Following the appeal, we denied a motion for summary Disposition by the respondent, Administrator Willis Morton, but granted his motion to permit supplementation of the record. In an affidavit thereafter submitted, Assistant Superintendent Roy Hendricks certified that Lumumba has directed where the items should be sent. He further certifies that dashikis are not specifically listed as permitted clothing; that it would be impossible to list all clothing not permitted; and that "even though a particular garment may fit the [generally permitted] description in the handbook, it still may not be permitted in the institution for security reasons."
The certification goes on to set forth the State Prison's rationale for the determination under review:
4. A "dashiki" is a loose fitting, often brightly colored, African tunic. It has a V-neck, and is meant to be worn outside the pants rather than tucked in. The colors and design in the fabric are associated with African culture. Thus, a dashiki is ethnic clothing.
5. The institution does not permit any inmate to retain ethnic clothing. This is true whether it is a dashiki or guayabera (ethnic shirt associated with spanish culture), or any other type of ethnic clothing. The reason is that ethnic clothing is in essence a type of uniform. Ethnic clothing leads to the formation of groups and gangs within the prison, which in turn leads to tension and violence. Consequently, ethnic clothing is not permitted within New Jersey State Prison for security purposes.
Lumumba argues that the decision denying him possession of "two shirts based on the cultural distinction of the garments was arbitrary and capricious." More specifically, he says that the dashikis are shirts that do not violate the Inmate Handbook provision as to shirts which reads:
6. shirts - short or long sleeved (no shades of blue or black) are permitted. Shirts with metal snaps, hooks, zippers or any type of fastener other than standard buttons or shirts with quilted linings are not permitted for inmate retention.
Citing N.J.A.C. 10A:18-5.1(a) and 10A:18-5.2(a) *fn1 respecting receipt and content of packages by inmates, Lumumba urges that no cultural limitations have been promulgated respecting receipt of clothing packages (the dashikis were ordered and arrived by mail), and that an unwritten rule against "ethnic clothing" carries a great potential for arbitrary action. He also ridicules the concept that ethnic clothing can foster gang identification, jeopardize security, or heighten group tensions within a maximum security prison. Instead, he suggests that this Conclusion arises from lack of sufficient appreciation of the richness of diverse cultural heritages, recognition of which would strengthen the "fabric of institutional social order." Analogizing such "cultural bias" to racism, Lumumba urges that this "Court ... ferret out genuine threats to institutional order ...