Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Eichen, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the New Jersey Department of Corrections.
Daryl Smith is a prisoner in the custody of the New Jersey Department of Corrections and is currently incarcerated at South Woods State Prison in the City of Bridgeton. He is serving a term of twenty-three years pursuant to convictions for aggravated manslaughter and possession and distribution of a controlled dangerous substance. On July 7, 2000, Smith was transferred from Southern State Correctional Facility to South Woods State Prison as a result of a "keep separate" order in his folder in relation to another inmate at Southern State Correctional Facility. Prior to his transfer, he qualified for and received "full minimum custody status." See N.J.A.C. 10A:9-4.3(e).*fn1 After his transfer to South Woods State Prison, the prison's Institutional Classification Committee reviewed Smith's status, and as a result, he was "reverted" to "gang minimum custody status."*fn2 N.J.A.C. 10A:9- 4.3(d). Stanley Nunn, the administrator of the facility, reviewed the determination, concluding that Smith was not eligible for "full minimum custody status" at South Woods State Prison because his conviction was for aggravated manslaughter.
After this appeal was filed, James Finger, Assistant Superintendent assigned to Facility 2 of South Woods State Prison, submitted an affidavit in which he amplifies the reasons for increasing Smith's custody status. There, Finger states that Smith "was reviewed by the Facility 2 Classification Committee and reverted to Gang Minimum Custody from Full Minimum Custody in accordance with established guidelines, due to the nature of his present offense." Finger explains that because the prison is within a residential area of the City of Bridgeport, "it would be a threat to the safety and security of the community to have inmates convicted of Aggravated Manslaughter residing outside the secure perimeter of the institution." In contrast, Southern State Correctional Facility is in a rural area.
On appeal, Smith makes the following arguments:
THE INCREASE IN APPELLANT'S CUSTODY LEVEL IS CONTRARY TO N.J.A.C. 10A:9-4.5(e), 10A:4- 3.1(a), AS WELL AS THIS STATE'S FAIRNESS & RIGHTNESS DOCTRINE, THE ADMINISTRATIVE PROCEDURE ACT, AND RESULTS IN VIOLATIONS OF APPELLANT'S SUBSTANTIVE & PROCEDURAL DUE PROCESS RIGHTS UNDER THE U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, ¶ 1. (Partially raised below)
THE APPELLANT HAS A LIBERTY INTEREST IN MAINTAINING FULL MINIMUM STATUS AND THE ACTIONS OF THE RESPONDENTS VIOLATED APPELLANTS'S DUE PROCESS RIGHTS UNDER THE U.S. CONST. AMEND. XIV, N.J. CONST. ART. I, ¶ 1, AND N.J. FAIRNESS & RIGHTNESS DOCTRINE. (Raised below)
It is well-settled that the Due Process Clause of the United States Constitution does not give prisoners a liberty interest in remaining free from transfers to more restrictive facilities. See, e.g., Jenkins v. Fauver, 108 N.J. 239, 249 (1987) (citing Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976) and Montanye v. Haymes, 427 U.S. 236, 96 S. Ct. 2543, 49 L. Ed. 2d 466 (1976). Applying this principle to Smith's transfer, we are satisfied that Smith had no liberty interest in remaining at Southern State Correctional Facility. Likewise, Smith had no liberty interest in retaining "full minimum custody status." Nonetheless, Smith contends that the transfer was fundamentally unfair because, although he is permitted to work outside the prison facility, the increase in custody status requires him to reside within its perimeters. He admits, however, that he has not lost any work credit as a result of the increased custody status.
In Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), the United States Supreme Court held that a change in a prisoner's conditions of confinement does not trigger the need for due process safeguards unless the change imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." 515 U.S. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 430. "New Jersey follows the Sandin test in circumstances involving a change in custody status." Muhammad v. Balicki, 327 N.J. Super. 369, 372 (App. Div. 2000). We agree with the Department of Corrections that the residential restriction does not constitute "a significant hardship," triggering safeguards under the Due Process Clause. Ibid.
In addition, under State law, the Commissioner of the Department of Corrections has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); see also N.J.S.A. 2C:43-10a (sentences of one year or longer are "to the custody of the Commissioner of the Department of Corrections"). Indeed, under New Jersey law, a reduction in custody status is a matter of privilege, not of right. N.J.A.C. 10A:9-4.2. Classification of prisoners and the decision as to ...