Before Judges Petrella, Newman and Braithwaite.
The opinion of the court was delivered by: Petrella, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2000
On appeal from a Final Decision of the New Jersey Department of Corrections.
Defendant Charles Moore was sentenced on August 15, 1997, to ten years in prison, five years without parole eligibility, for robbery. Moore is serving his sentence at Southern State Correctional Facility (SSCF) in Delmont, a prison operated by the Department of Corrections (DOC). After his minimum custody status was revoked by the Institutional Classification Committee (ICC) for failure to participate in a substance abuse program, Moore filed an appeal.
Moore challenges the reallocation of his minimum custody status on various grounds. He argues that (1) his rights were violated under the Americans with Disabilities Act (ADA) and the New Jersey Law Against Discrimination (LAD); (2) his due process rights were violated because he was denied a fair hearing; and (3) the ICC's determination was arbitrary and unreasonable.
The ICC of each correctional facility is responsible for, among other things, "[r]eviewing the applications of inmates for changes in custody status." N.J.A.C. 10A:9-3.1(a)3. *fn1 The ICC is also responsible for "[m]onitoring the progress of inmates by scheduling periodic reviews to ensure that rehabilitative efforts are being maximized." N.J.A.C. 10A:9-3.1(a)2. The DOC's substance abuse treatment program is one of the rehabilitative efforts monitored by the ICC.
An inmate qualifies for a "therapeutic community program" if, among other things, the inmate has an "addiction severity index" (ASI) of five or above, in which case the inmate is "considered to be chronically addicted and in need of intensive substance abuse treatment." The ASI is "a clinical diagnostic and research instrument which rates an offender's addiction level."
Moore received an ASI score of seven and was assigned on November 10, 1998, to the Persons Incarcerated Entering Recovery (PIER) program, a therapeutic community at SSCF. On November 18, 1998, his custody level status was reduced from medium to full minimum custody. On November 20, 1998, Moore refused to begin treatment, contrary to the clinical staff's opinion that additional treatment was required. Moore claims that he withdrew from the PIER program after being examined by a prison psychologist, Dr. Frankel, whose psychological report opined that the PIER program was too stressful for Moore due to his HIV status. Moore also asserted that, as a result of his deteriorating health, he had to resume use of medication prescribed for stress.
An inmate who declines an assignment to a treatment program is not subject to disciplinary action, but shall "[n]ot be eligible for minimum custody or if already in gang or full minimum custody shall lose the custody status via the Objective Classification scoring instrument's 'I' override." If the ICC determines that an inmate should be discharged from a therapeutic Committee for an administrative reason (e.g., medical reasons),
"it shall reassign the inmate pursuant to N.J.A.C. 10A:9-3.3, Classification Process, *fn2 without viewing the discharge in a negative light."
The ICC revoked Moore's full minimum custody status through an "I" override, due to his refusal to begin treatment, and reverted his custody status to medium. Moore sought leave to appeal out of time and we granted leave to file nunc pro tunc. Moore filed a "notice of motion in lieu of subpoena for an in-camera inspection of confidential psychiatric records" of prison psychologist Dr. Frankel, arguing that he was denied the records for confidentiality reasons. The DOC asserted that the ICC never considered such a report because Moore's classification file did not contain such a report. We granted the DOC's cross-motion for a remand so Moore could be evaluated by a psychologist and the report considered by the ICC in determining his custody status.
On November 23, 1999, Dr. Frankel examined Moore and prepared a confidential psychological report in which he concluded that Moore "is not a good candidate for the PIER program at SSCF due to the emotional and stress factors that he is struggling with." The ICC reconsidered whether Moore's custody status was appropriately reverted to medium and issued a "K" override, concluding that Moore's ...