February 22, 2008
MARK PICOZZI, APPELLANT,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 22, 2007
Before Judges A. A. Rodríguez and Collester.
Appellant Mark Picozzi is an inmate in the New Jersey State Prison system serving a term of thirty years with fifteen years parole ineligibility for his 1991 convictions for kidnapping, robbery and parole violations. In August 2006, Picozzi was incarcerated at Mid-State Correctional Facility (MSCF) and was assigned full minimum (FM) custody status. Inmates so classified are assigned to work details, jobs, or programs outside the main correctional facility with minimal supervision. N.J.A.C. 10A:9-4.3(e). On August 2, 2006, he received two disciplinary charges, *.202, possession or introduction of a weapons, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility.
He was found guilty of the *.202 charge of possession of a weapon by a hearing officer on August 7, 2006. Picozzi appealed to the assistant superintendent of the MSCF, and on August 14, 2006, the charge was rescinded because of "substantial doubt as to the inmate's guilt."
Following that determination, Picozzi was administratively transferred to East Jersey State Prison (EJSP), and his custody status within that institution was changed to gang minimum (GM), a more restrictive status whereby an inmate may be assigned to activities or jobs outside the correctional facility but under continuous supervision of a correctional officer. N.J.A.C. 10A:9-4.3(d). On August 31, 2006, Picozzi appeared before the classification committee of the EJSP for review and was advised that although he had transferred from MSCF where he had FM status, he was ineligible for FM at EJSP. On September 5, 2006, his request was granted for an institutional transfer to South Woods State Prison (SWSP) with continued GM status. Following an initial institutional classification of Picozzi by the SWSP classification committee, he was advised that he would not be given FM status until receipt of a psychological evaluation. That evaluation took place on November 17, 2006. The report concluded as follows:
Inmate appears to be psychologically appropriate for FM, GM at this time. He does not appear to be psychologically appropriate for CR [community release]. His hx of instrumental aggression places him at high risk to re-offend another violent crime.
Picozzi was advised by letter on December 1, 2006, that he was denied FM status and maintained on GM status.
Picozzi asserts that while at MSCF he earned FM status and had been approved for placement at a half-way house with his maximum parole release date fixed in 2008 and that FM status is a prerequisite for obtaining community custody status, which authorizes inmate participation in residential community programs or community-based jobs. N.J.A.C. 10A:20. He claims that the decision to reduce his FM status to GM was retaliatory because he had been found not guilty by the assistant superintendent of the disciplinary charge and that the improper classification followed him as he was transferred to other institutions within the State penal system. At present Picozzi is confined at MSCF with GM status. He argues that the DOC has continued to classify him with the GM status rather than FM because of a "pattern of retaliation." He submits that since he was previously granted FM status, he should maintain this status absent any violation of institutional rules or misconduct.
The DOC commissioner has total discretion in determining an inmate's place of confinement. N.J.S.A. 30:4-91.2. Moreover, classification of prisoners rests within the discretion of the commissioner. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1. An inmate has no liberty interest in any custody level. Smith v. Dep't of Corrections, 346 N.J. Super. 24, 29-30 (App. Div. 2001). A reduction in custody status is a matter of privilege, not of right, and an inmate's custody status may be increased by the superintendent and classification committee based on the best interest of the inmate, the safe operation of the institution and the safety of the public at large. N.J.A.C. 10A:9-4.5(e)(5).
In White v. Fauver, 219 N.J. Super. 170 (App. Div. 1987), the inmate was first classified as maximum custody and later reduced to GM status. However, after another inmate escaped from the institution, a special classification review committee was directed to evaluate inmates assigned to or awaiting minimum custody. As a result, White's custody status was increased to maximum custody. We held that White had no constitutionally protected liberty interest in his GM status and that his change in classification was for cause and not arbitrary. We stated:
A State may create a liberty interest protectable by the due process clause through its enactment of certain statutory or regulatory measures. However, if the decision maker is not required to base its decision on objective and defined criteria, but instead can deny the requested relief for any constitutionally permissible or for no reason at all, the State has not created a constitutionally protected liberty interest.
(Emphasis added.) [Id. at 179.]
In Smith, we held that an inmate had no liberty interest in retaining FM status when he was transferred from one correctional facility to another, and the decision of the classification committee increasing his custody status did not violate due process or offend notions of administrative fairness. Smith, supra, 346 N.J. Super. at 32. Nonetheless, an administrative decision regarding custody must not be arbitrary or unreasonable. As we said in White,
Although appellant did not have a protected liberty interest in his reduced custody status, New Jersey courts have not been satisfied with enforcement of naked constitutional rights in their function of review of the action of administrative agencies, but have gone further to strike down arbitrary action and administrative abuse and to insure procedural fairness in the administrative process. New Jersey Parole Bd. v. Vyrne, 93 N.J. 192, 207 (1983); Avant v. Clifford, 67 N.J. 496, 520 (1975). Due process is flexible and calls for such procedural protections as the particular situation demands.
[White, supra, 219 N.J. Super. at 180.]
By its regulations, the DOC directed the establishment of an institutional classification committee (ICC) at each correctional facility which is responsible for the custodial status of inmates as well as changes in status classification and transfers to different institutions. Its decisions are governed by a list of twenty-one factors including correctional facility adjustment, nature and circumstances of present offense, prior offense record, substance dependency, needs of the correctional facility, and any other factors pertinent to the inmate's case. N.J.A.C. 10A:9-4.5(e)(5). The regulation also permits an increase in status for "[a]ny reason which, in the opinion of the Administrator and ICC relates to the best interests of the inmate or the safe, orderly operation of the correctional facility or the safety of the community or public at large."
In this case, after being found not guilty of disciplinary charges, Picozzi was transferred to EJSP, with a change in his status to GM for the following stated reason:
I/M ineligible for FM at EJSP . . . was transferred in with FM custody. I/M denied by BSP due to: previously classified unsuitable for BSP FM.
Picozzi requested a review of his assigned status and was advised, "You will be considered for FM status when you are reviewed by the CC committee for your initial review here at SWSP." That initial review took place on November 29, 2006, after a psychological evaluation. The ICC determination was that Picozzi was not to receive FM status "due to the nature of your present offense." On further review by the classification officer of the Division of Operations of SWSP, Picozzi was advised:
You are assigned Gang Minimum status based on your Institutional records and the Institutional Classification Committee's discretion. Reduced custody is a privilege and is awarded at the discretion of the Committee with information in the classification file as well as an individual's conduct.
On March 20, 2007, Picozzi received a memorandum from the associate administrator of the SWSP stating:
In reviewing your file, the classification committee determined that you should not be granted full minimum status based on the circumstances (sic) present offense and a prior matter. The committee is authorized to exercise its discretion in this fashion. Minimum status is a privilege, not a right.
We held in Smith that reviews of the inmate's custody status by the Superintendent and the ICC must consider all pertinent factors of N.J.A.C. 10A:9-3.3(a) in making its decision whether the inmate should be maintained in a reduced custody status. Smith, supra, 346 N.J. Super. at 32. Here there is no indication that that analysis was done. Moreover, the explanations given in the change from FM to GM are confusing at best. The EJSP notification of the ICC results makes reference to Picozzi's status at MSCF as unsuitable for FM before he was classified as FM, and the only stated reason for the change to GM status is "circumstances of present offense noted." Similarly, the decision by the committee at SWSP was related to "the nature of the present offense." When Picozzi sought clarification, he was again told that the decision not to grant him FM status was based on circumstances of his present offense "and a prior matter." There is no indication as to what is meant by "a prior matter."
The State argues that although it is not so stated in the notice of decision by the ICC, the psychological report on Picozzi was a significant factor in the decision. That report concluded that Picozzi was not appropriate for community release at that time, but it also stated that, "Inmate appears to be psychologically appropriate for FM, GM at this time."
While we need not accept Picozzi's explanation for the actions of the EJSP and SWSP classification committees' refusal to grant him FM status, the record is unclear as to whether either or both ICCs considered the factors in N.J.A.C. 10A:9-3.3(a), and there is no clearly stated findings or reason given for his repeated classification as GM.
Records indicate that Picozzi has been transferred back to MSCF with a classification of GM. Therefore, we reverse the decision to increase Picozzi's custody status to gang minimum in the absence of clearly stated findings or reasons and the lack of any indication that the respective committees considered the applicable factors stated in its regulation. We direct that the issue of Picozzi's classification as GM status as opposed to FM status be reviewed in light of our decision. We offer no view as to Picozzi's qualification for reduced status to FM.
Reversed and remanded. We do not retain jurisdiction.
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