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Bagarozy v. New Jersey Dep't of Human Services

September 7, 2007


On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.



Submitted August 29, 2007

Before Judges A.A. Rodríguez and Parrillo.

Appellant Richard Bagarozy is civilly committed as a sexually violent predator, pursuant to N.J.S.A. 30:4-27.24 to -27.38, to the Special Treatment Unit (STU) at Kearny. He appeals from the final agency decision of the Department of Corrections (DOC) amending its grievance procedure to require that residents drop their complaint forms in a locked box instead of hand delivery to a staff member, who would then sign for the form. We affirm.

By way of background, the DOC, which is "responsible for the operation of any facility designated for the custody, care and treatment of sexually violent predators", N.J.S.A. 30:4-27.34a, has developed a system whereby residents of the STUs can submit written requests or grievances, known as administrative remedy forms. If the particular grievance complaint or request involves security or the facility's general operations, it is addressed by the DOC. N.J.S.A. 30:4-27.34d. If it pertains to a treatment issue, the submission is addressed by the Department of Human Services (DHS), which is the agency responsible for "provid[ing] or arrang[ing] for treatment" of sexually violent predators. N.J.S.A. 30:4-27.34b.

In late 2004, the DOC amended its procedure to require that the resident fill out the administrative remedy form and file it in a locked box, instead of handing it to a staff member. A "coordinator" then removes the forms from the box and distributes them to DOC or DHS staff, as appropriate, for response. From April 2004 through November 21, 2005, appellant filed over eighty resident administrative request or grievance forms, at least forty-seven of which were filed in 2005 alone. The agencies timely responded to the vast majority of these submissions, although appellant argues that the problem of unanswered grievances continues and exceeds his initial claim of eight in number. He attributes this response lapse to the change in the agencies' administrative processing of grievances and requests, which, he alleges, is violative of due process. We disagree.

Appellant has failed to identify a liberty or property interest that has been interfered with by the State. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709-2710, 33 L.Ed. 2d 548-561 (1972). In this regard, grievance procedures, in and of themselves, do not confer an interest protected by the due process clause. See McGuire v. Forr, 1996 U.S. Dist. LEXIS 3418 (E.D. Pa. 1996), aff'd, 101 F.3d 691 (3d Cir. 1996); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (State's inmate grievance procedures do not give rise to liberty interest protected by the due process clause); Rhodes v. Adams, 194 Fed. Appx. 93, 95 (3d Cir. 2006) (same); Anderson v. Pennsylvania, 196 Fed. Appx. 115, 117 (3d Cir. 2006) (same).

Even if appellant were able to identify a cognizable liberty or property interest of which he has been deprived, he has failed to demonstrate that agency procedures attendant upon that deprivation were constitutionally defective. Hewitt v. Helms, 459 U.S. 460, 472, 103 S.Ct. 864, 871-72, 74 L.Ed. 2d 675, 688-89 (1983). The DOC's change in administrative processing of resident grievances and requests has not resulted in the agency's failure to provide a timely response to the majority of forms submitted by appellant. Nor apparently has it chilled appellant's resort to the modified procedure. And in those instances of alleged agency lapse, appellant has not established that he suffered any harm thereby or was prevented from resubmitting the requests. Nor has appellant demonstrated that the agency's amended procedure has resulted in any appreciable difference in either the frequency, content or timing of the official response.

We therefore conclude that appellant has no constitutional right to any particular grievance procedure; that the procedure adopted by the DOC was well within its broad discretion in the operation of its facilities, Jenkins v. Fauver, 108 N.J. 239, 252 (1987); and that the modified version is neither arbitrary, capricious nor unreasonable. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).



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