On appeal from a Final Agency Decision of the Department of Corrections.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2005
Before Judges Kestin, Hoens and R. B. Coleman.
Appellant Craig Szemple appeals from a Final Agency Decision of the Department of Corrections (DOC) designating him a "high risk" inmate. Appellant argues he has a protected liberty interest affected by such a designation and that he is entitled to a hearing. We reject those arguments and affirm.
Appellant is serving three consecutive life sentences at New Jersey State Prison in Trenton, having been convicted of two counts of murder and one count of aggravated manslaughter. He was also convicted of three counts of theft by deception. Although appellant denies any involvement, he is suspected of having made plans with five other inmates to escape from the prison. According to the DOC, the suspected escape plan was averted and never implemented. Apart from denying any involvement in any escape plan, appellant asserts that the plan is alleged to have been thwarted in late 1997 and early 1998. As such, it is too remote to be an appropriate basis for the current classification.
The DOC acknowledges that appellant is designated a "high risk" inmate, but it contends that such designation is not a custody status.*fn1 The DOC contends the only consequence of the designation of appellant as a "high risk" inmate is that additional security is required when appellant is transported outside the prison. Appellant contends, however, that he also has been prohibited from working in a yard gang position, in the prison shops, in the cook house area, or as a gym porter. For purposes of this appeal, we accept as true appellant's contention that he is subject to such location restrictions.
At the outset, we note that the scope of judicial review of an administrative agency's factfinding is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An appellate court is not to decide the case as a "court of first instance" would. State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1984)). This court is only to determine whether the findings made by the agency could reasonably have been reached on sufficient credible evidence present in the record. Ibid.
Although certain rights and interests of prisoners in State correctional institutions have been recognized, our Supreme Court has "generally declined to recognize a liberty interest warranting due-process protection where the prisoner's status was subject to change by authorities without any proof of misconduct." Jenkins v. Fauver, 108 N.J. 239, 248 (1987) (citing Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed. 2d 451 (1976)). In Jenkins, the Court upheld the relocation of all inmates with prior homicide convictions from the Rahway Camp, a satellite minimum-heightened security correctional facility to the main prison, where they were reclassified either "full minimum -- inside only," which was not a classification recognized by departmental standards, or "gang minimum," a classification permitting inmates housed in the main prison to be assigned to activities or jobs on institutional grounds outside of the main facility, but within the supervisory control of corrections officials. Id. at 256. The DOC's action in Jenkins was precipitated by the escape of two inmates from the Rahway Camp, and the Court concluded that the Legislature had "vested in the Commissioner broad discretionary powers to administer the Department" and "to take appropriate action to preserve satisfactory relationships with municipalities affected by the proximity of state penal institutions." Id. at 252. Under the circumstances presented in Jenkins, the Court observed that no "useful purpose [would] have been served by an expansive hearing since the only issue to be resolved was whether the particular inmate's record reflected a conviction for homicide." Id. at 254.
In this case, appellant contends his status was affected by an unfounded suspicion that he had been a participant in an escape plan and he argues he is entitled to a due process hearing before his liberty interest can be affected. We disagree. Courts of this State have consistently held that the due process clause of the United States Constitution does not give prisoners a liberty interest in remaining free from transfer to more restricted facilities. See, e.g., Jenkins, supra, 108 N.J. at 249; Smith v. New Jersey Dep't of Corrections, 346 N.J. Super. 24, 29 (App. Div. 2001); Moore v. Dep't of Corrections, 335 N.J. Super. 103, 109 (App. Div. 2000); Blyther v. New Jersey Dep't of Corrections, 322 N.J. Super. 56, 60 (App. Div. 1999); Lorusso v. Pinchak, 305 N.J. Super. 117, 118 (1997).
In those cases, we have repeatedly expressed our adherence to the United States Supreme Court holding in Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed. 2d 418 (1995). In Sandin, the Court determined 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." Id. at 484. In Muhammad v. Balicki, 327 N.J. Super. 369, 372-73 (App. Div. 2000), we observed that "[w]hile the 'atypical and significant hardship' standard of Sandin may be difficult to define, it is clear to us that the loss of enjoyment of greater mobility than that accorded to the general prison population, less supervision and eligibility for more good-time credits do not fall within that standard[.]" (internal citation omitted).
In his brief on appeal, appellant relies on Wilkinson v. Austin, ___ U.S. ___, 125 S.Ct. 2384, 162 L.Ed. 2d 174 (2005), to support his argument that he has a protected liberty interest in not being classified as a "high risk" inmate, with the resulting increase in security and other restrictions on his movement. Based on that asserted liberty interest, appellant contends that he is entitled to a hearing prior to any determination classifying him as a "high risk" inmate. Appellant's reliance on Wilkinson is misplaced.
Wilkinson considered whether an inmate had a liberty interest in avoiding assignment to Ohio's "Supermax" facility, the Ohio State Penitentiary (OSP). Id. at ___, 125 S.Ct. at 2388, 162 L.Ed. 2d at 184. The United States ...