December 20, 2006
DREW CAMAROTA, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2006
Before Judges Skillman and Holston, Jr.
These are consolidated appeals from final agency decisions of the Department of Corrections (DOC). Appellant, Inmate (IM) Drew Camarota, appeals from the January 11, 2006 disposition of the DOC adjudicating him guilty of disciplinary infraction .701, unauthorized use of mail or telephone contrary to N.J.A.C. 10A:4-4.1. Appellant also appeals the January 24, 2006 DOC classification decision, resulting from appellant's .701 violation, which changed appellant's custody status from gang minimum to gang medium and removed appellant from his higher paying job as a paralegal to a lower paying janitorial position. We affirm both agency decisions.
On December 15, 2005, at 1:35 p.m., Senior Corrections Officer (SCO) Fawcett observed appellant at the telephone bank at South Woods State Prison. IM Castillo was talking on a telephone. Castillo handed appellant the telephone and SCO Fawcett overheard appellant saying, "who is the team leader." SCO Fawcett concluded that appellant had made an unauthorized use of the telephone by speaking, on the telephone, to a person called by Castillo. Appellant was thereafter charged with disciplinary infraction .701 for unauthorized use of the telephone.
Appellant denied the charge. Appellant contended he made his own call after Castillo completed his call and Castillo simply handed him the telephone. Appellant asserts that his voice would not be heard on an internal affairs tape of Castillo's telephone calls.
After three adjournments, a hearing on the charge was completed by Hearing Officer (HO) Maguire on December 30, 2005.
The December 30, 2005 Adjudication of Disciplinary Charge signed by the HO summarized the evidence relied upon by him in reaching his decision. The HO found that SCO Fawcett saw Castillo hand appellant the telephone and then heard appellant speak into the telephone. The HO determined SCO Fawcett credible and the sequence of events clarified by confrontation answers given by SCO Fawcett at appellant's request. The HO also found that although Castillo's Inmate Personal Identification Number (IPIN) was used to make a call, appellant made no calls using his own IPIN on the day in question. Only Castillo's IPIN was used for the time period in question.
The HO determined that the rules contained in the South Woods State Prison Inmate Handbook clearly indicate inmates are precluded from making third-party calls and that each inmate has a separate IPIN for calls. The HO concluded that it was a clear violation of the IM rules for appellant to be on the telephone during a call that used Castillo's IPIN.
Appellant argues that his adjudication of guilt was not supported by substantial evidence, that the IM handbook does not make the act allegedly committed by him a .701 offense, and that HO Maguire's failure to disqualify himself resulted in him not being provided a fair tribunal.
The South Woods State Prison Inmate Handbook sets forth that each inmate will be issued an IPIN that must be used for making telephone calls out of the institution. Inmates may submit a list of up to ten telephone numbers of family and friends and telephone numbers of two attorneys that will be linked to their IPIN. In order to make a telephone call, an inmate must enter his own IPIN number. The inmate handbook also states, "[t]here may be no third-party . . . calls to any person."
We are convinced, after an examination of the applicable sections of the inmate handbook dealing with telephone usage, that an inmate is prohibited from speaking by telephone with anyone, except for the ten friends and family members and two attorneys contained on the inmate's IPIN list. We are further satisfied that the restriction would be violated if an inmate spoke to someone called by another inmate. That is precisely the infraction adjudicated by the HO against appellant.
We are satisfied that the evidence supports the HO's finding that appellant violated the telephone usage rules when he took the telephone during one of Castillo's calls and spoke with someone who was not on his IPIN list and without entering his own IPIN. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The HO properly determined this to be a third-party telephone call prohibited by the inmate handbook and that appellant was guilty of disciplinary infraction .701.
Appellant contends that HO Maguire was not an impartial tribunal because he was biased against him. Appellant claims, as a paralegal, he had obtained reversals of a number of HO Maguire's disciplinary adjudications. HO Maguire is a member of the DOC's central office staff and, as such, is deemed to be an impartial tribunal. McDonald v. Pinchak, 139 N.J. 188, 196 (1995). We find no factual foundation in the record that supports appellant's allegation of bias. We, therefore, find appellant's contention that the HO should have disqualified himself to be without merit.
Appellant appealed his adjudication to the superintendent of the prison. Assistant Superintendent (AS) Finger upheld the HO's finding of a disciplinary infraction. However, the AS modified the sanction imposed by the HO to ten days detention and sixty days loss of commutation credit, suspended for sixty days, and thirty days loss of telephone privileges. The sanction is clearly within the range of sanctions permitted by N.J.A.C. 10A:4-5.1(b) for a non-asterisk offense. Thus, we are satisfied that the sanction imposed was not excessive or beyond that permitted by the administrative code.
Appellant appeals the DOC's decision to change his job assignment and his custody status. Pursuant to N.J.A.C. 10A:4-5.1(g), appellant was removed from his higher paying position as a paralegal and was reassigned to a janitorial position. Additionally, his custody status was changed from gang minimum to gang medium, as a result of his .701 violation.
It is well-settled that inmates do not have a liberty interest in any particular job or wage. Lorusso v. Pinchak, 305 N.J. Super. 117, 119 (App. Div. 1997), certif. denied, 153 N.J. 403 (1998). 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." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed. 2d 418, 430 (1995).
In Smith v. New Jersey Department of Corrections, 346 N.J. Super. 24, 29 (App. Div. 2001), we stated: "New Jersey follows the Sandin test in circumstances involving a change in custody status." (Quoting Muhammad v. Balicki, 327 N.J. Super. 369, 372 (App. Div. 2000)). We also referenced Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979), where the District Court observed that "inmates have no liberty right to be assigned to any particular custody level." Id. at 29-30. We pointed out that "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id. at 30. We also noted that "[c]lassification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections." Ibid.
We affirmed the DOC's decision to deny Smith full minimum custody status upon his transfer from one prison facility to another. However, we made clear that our affirmance was based on the classification decision not being a "final, immutable determination," but rather one that would be periodically reviewed. Id. at 31-32. The State's brief represents that the Classification Committee will continue to periodically review appellant's job assignment and custody status in order to ensure that he is properly assigned.
Appellant, here, does not assert any atypical or significant hardship resulting from his job reassignment or as a result of the change in his custody status. Therefore, we are satisfied that the DOC's imposition here of a job reassignment and change in custody status as a collateral consequence of appellant's violation, subject to periodic review, does not constitute arbitrary, capricious, or unreasonable agency action. Henry, supra, 81 N.J. at 579-80. Accordingly, we affirm the decision to change appellant's job assignment and custody status.
© 1992-2006 VersusLaw Inc.