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Fisher v. New Jersey State Parole Bd.

July 10, 1997

DON FISHER, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT. ERIC GIBBONS, APPELLANT, V. SCOTT FAUNCE, RESPONDENT.



On appeal from the New Jersey State Parole Board and the New Jersey Department of Corrections and on remand from the New Jersey Supreme Court.

Approved for Publication July 10, 1997.

Before Judges King, Keefe and Conley. The opinion of the court was delivered by King, P.j.a.d.

The opinion of the court was delivered by: King

The opinion of the court was delivered by

KING, P.J.A.D.

I.

These two matters are before us on summary remands from the Supreme Court for accelerated reconsideration. The issue is whether N.J.S.A. 30:4-16.2 to -16.5; L. 1996, c. 11, requires that inmates pay a portion of the appellate filing fee, now $175, when filing an appeal to this court from denial of parole, or from a jail or prison disciplinary sanction. Invariably this court, on motion, grants indigency status to prison inmates in these matters. See R. 2:7-1.

We conclude that the statute does not include inmate appeals from adverse agency determinations in parole and disciplinary matters. Rather, we find from our examination of the text of the statute that the Legislature intended to deter frivolous civil lawsuits for money damages and injunctive relief filed by inmates against governmental entitles and their agents by imposing the requirement of paying filing fees.

II.

FISHER

On October 6, 1995 appellant Don Fisher was convicted and sentenced to a five-year term, with an 18-month period of parole ineligibility, for endangering the welfare of a child. After a parole hearing on August 15, 1996, the Parole Board on August 22, 1996 denied Fisher's parole application. The Board set a "twenty month future eligibility term." On October 15 the Board denied his request for reconsideration. On November 8 he filed this notice of appeal with an affidavit of indigency which said he had $49.50 in his inmate account and earned $50 a month in his prison job. The record shows he has an average daily balance in his inmate account of $4.27. On January 9, 1997 we summarily granted Fisher's motion to proceed as an indigent but denied his motion for assignment of counsel. We declined to apply N.J.S.A. 30:4-16.3 to the proceeding.

GIBBONS

On September 12, 1996 inmate Gibbons received an on-the-spot sanction by Corrections Officer Mitchell for yelling and kicking his cell door. The sanction was four hours extra work. The next day Gibbons received a disciplinary charge for threatening Mitchell with bodily harm, a violation of N.J.A.C. 10A:4-4.1(a) *005. After a disciplinary hearing on September 30, 1996, Hearing Officer Ireland concluded there was substantial evidence to support the charge. Ireland imposed a sanction of fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation time. Gibbons filed an administrative appeal and on October 7 Administrator Faunce upheld the decision of the hearing officer. On October 24, 1996 Gibbons filed an appeal to this court with a certification of indigency stating that he had $41.26 in his inmate account and earned $25 per month at his prison job. The record suggests that his average daily balance in his inmate's account was $51.34. On January 9, 1997 we summarily granted Gibbons' motion to proceed as an indigent. We declined to apply N.J.S.A. 30:4-16.3 to the proceeding.

By order of March 4, 1997 the Supreme Court granted the Parole Board's and Administrator Faunce's motions for leave to appeal in both cases and summarily remanded the matters to this court for accelerated and plenary consideration on the ...


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