June 3, 2008
JUSTICE R. ALLAH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Determination of the New Jersey Department Of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 13, 2008
Before Judges Yannotti and LeWinn.
Appellant Justice R. Allah is incarcerated at the New Jersey State Prison in Trenton, New Jersey. Allah is serving a life sentence, with a thirty-year period of parole ineligibility, for murder. He appeals from a final determination of the Department of Corrections which placed him in the Management Control Unit (MCU). We affirm.
The MCU is "a close custody unit" in the correctional facility. N.J.A.C. 10A:5-1.3. An inmate may be assigned to the MCU if the Management Control Unit Review Committee (MCURC) finds that the inmate poses a substantial threat to the safety of others; of damage or destruction of property; or of interrupting the operation of the correctional facility. N.J.A.C. 10A:5-2.5(a).
In determining whether an inmate should be assigned to the MCU, the MCURC Committee must consider the following criteria:
1. Disciplinary records during the inmate's present term of confinement and any previous terms served. Weight shall be assigned to this criterion where there are a substantial number of minor charges, or one or more charges of a serious nature;
2. Past criminal offenses, including those for which incarcerated, which indicate the capability and propensity to commit or precipitate serious acts of disruption or violence;
3. Number and location of previous institutionalizations including the disciplinary records, progress reports, classification reports, or any other records which indicate involvement in serious misbehavior;
4. Reports by professional staff (for example, psychologists, social workers, psychiatrists);
5. Reports indicating present involvement in criminal activities in the community or within the correctional facility;
6. Evidence of an attitude which indicates an unwillingness to follow rules and obey orders;
7. Inability to maintain a satisfactory work record as indicated in reports by work supervisors and/or frequency of job changes;
8. Information indicating unsatisfactory adjustment to, or performance in, treatment or rehabilitative programs; and
9. Evidence of the inmate's inability or unwillingness to house with other inmates in a nondisruptive and nondestructive manner.
Allah was placed in the MCU on November 28, 2006, pursuant to N.J.A.C. 10A:5-2.8, which permits pre-hearing assignment to the MCU if the inmate poses an immediate threat to the safety of others, of damage to or destruction of property, or of interrupting the safe, secure and orderly operation of the prison. Allah was provided with a record detailing the criteria to be used in considering whether he should be assigned to the MCU, and other pertinent information. N.J.A.C. 10A:5-2.6(b). The hearing before the MCURC was scheduled for December 5, 2006, but was adjourned several times so that a sufficient number of members of the MCURC could participate.
On January 23, 2007, Allah was provided with a memo dated January 19, 2007, written by Assistant Superintendent Donald Mee, Jr., in which Mee reviewed certain confidential information that would be considered by the MCURC. In that memo, Mee noted that an investigation was undertaken after a letter was seized by an inmate at the prison. According to Mee, the letter provided "specific information with regard to the purchase, transportation and introduction of cell phones and accessories as well as other contraband inside the security perimeter" of the prison.
Mee wrote that several inmates had used the "process established by Inmate Allah to circumvent institutional [safeguards] to acquire contraband to be introduced" into the prison. Mee stated that the investigation revealed that Allah had "established an extremely elaborate scheme" to have his family and others "introduce a variety of contraband to include weapons inside the security perimeter" of the facility. The hearing of the MCURC was held on January 25, 2007. The MCURC issued a written decision dated January 25, 2007, in which it found that:
[t]he information that has been provided to the MCURC depicts an extremely elaborate sophisticated system that was developed by Inmate Allah that circumvented institutional safeguards with respect to financial transactions as well as the mail and telephone systems. This scheme effectively laundered money that was utilized to introduce a variety of contraband into the security perimeter of the New Jersey State Prison.
What is of serious concern to the MCURC is the extent and complexity of the system developed by Inmate Allah. Inmate Allah has demonstrated that he is willing to go to great lengths to circumvent institutional safeguards to violate departmental rules and regulations all in an effort to further his own interests. This activity has led to the introduction of various types of contraband into a correctional institutional setting. This activity poses a threat to the safety and security of New Jersey State Prison. This illegal contraband creates a fierce competition between the inmate population.
Inmate Allah has clearly demonstrated that he is unable to successfully house in a general population setting in the New Jersey Department of Corrections. The MCURC has considered a reduction of privileges in the case of Inmate Allah. This will have little effect in modifying the behavior of Inmate Allah. Due to Inmate Allah's length of service, [l]ife with 30 years and poor institutional adjustment[,] Inmate Allah would not be a suitable candidate for an institutional transfer. A housing unit change will have little effect on Inmate Allah's conduct.
It is the opinion of the Committee that the security and structure provided by the Management Control Unit are essential in order to house Inmate Allah in a safe and secure manner. Therefore it is the decision of the MCURC that Inmate Allah be assigned to the Management Control Unit at New Jersey State Prison. . . . Inmate Allah should participate in the following programs, "Cage Your Rage" and "Thinking for a Change[.]"
On February 21, 2007, Allah filed an administrative appeal from the MCURC's decision with Michelle R. Ricci, the Associate Administrator of New Jersey State Prison. Ricci issued a decision dated March 5, 2007, in which she concluded that the MCURC's decision was appropriate. Ricci informed Allah that the MCURC had:
considered your past institutional conduct or disciplinary record, which reflects that you cannot be housed in general population due to your disruptive conduct at New Jersey State Prison. This includes your history of attempts to introduce contraband into the facility as well as other numerous institutional infractions. Based on the aforementioned factors[,] you are a threat to the safety and security of this institution.
Finally, the [MCURC] took into consideration all of the aforementioned factors listed, along with your past disciplinary record when you were reviewed for placement. As a result, it is quite apparent that you are incapable of being housed in general population. Your past disruptive behavior along with the numerous infractions you received while incarcerated at [New Jersey State Prison] and other correctional institutions indicates that you should be housed in a highly structured environment such as the [MCU].
Allah filed a notice of appeal on April 17, 2007. He raises the following arguments for our consideration:
THE DEPARTMENT OF CORRECTION[S'] DECISION TO PLACE APPELLANT ON MCU STATUS VIOLATES N.J.A.C. 10A:5-2.1(a) AND 10A:5-2.3(a) THUS DEPRIVING ALLAH OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION.
THE DEPARTMENT OF CORRECTIONS['] FAILURE TO DEMONSTRATE THAT CONFIDENTIAL INFORMATION WAS CREDIBLE VIOLATED N.J.A.C. 10A:5-2.6(b)(3)(i) THUS DEPRIVING THE APPELLANT OF THE STATE AND FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION.
[THE] DEPARTMENT OF CORRECTION[S'] DECISION TO CONSIDER APPELLANT['S] PLACEMENT ONTO THE MCU UNIT BASED LARGELY ON CHARGES THAT WERE ADJUDICATED NOT GUILTY VIOLATES N.J.A.C. 10A:5-2.6(b)(3) AND 10A:4-9.26[.]
THE DEPARTMENT OF CORRECTION['S] DECISION TO PLACE APPELLANT ON MCU STATUS VIOLATED N.J.A.C. 10A:5-2.8(a)(c)(d) AND SHOULD BE REVERSED.
THE AGENCY'S BAN OF APPELLANT'S VISITING PRIVILEGES SHOULD BE REVERSED IN LIGHT OF [THE] AGENCY'S DELIBERATE FAILURE TO FOLLOW THE MANDATES OF N.J.A.C. 10A:18-6.19(a) and (c)[.]
The scope of our review in an appeal from a final decision of a state administrative agency is strictly limited. Univ. Cottage Club v. N.J. Dep't of Envtl. Prot., 191 N.J. 38, 48 (2007) (citing In re Taylor, 158 N.J. 644, 656 (1999)). "We will not reverse an agency's decision unless: (1) it was arbitrary, capricious, or unreasonable; (2) it violated express or implied legislative policies; (3) it offended the State or Federal Constitution; or (4) the findings on which it was based were not supported by substantial, credible evidence in the record." Ibid.
We are satisfied from our review of the record that the arguments raised by Allah in Points I through IV are without sufficient merit to warrant discussion in an opinion. R. 2:11- 3(e)(1)(A) and (E). We are convinced that the Department's decision to place Allah in the MCU is supported by substantial, credible evidence. We are additionally convinced that, in making its determination, the Department substantially complied with the regulations governing MCU placements.
We decline to consider the arguments raised by Allah in Point V of his brief. Allah is challenging a determination by the Department to ban certain persons from visiting him in the prison. However, the issues regarding the visitor ban were not addressed by the MCURC in its January 25, 2007 decision. The issues also were not raised by Allah in his appeal to Associate Administrator Ricci, and they were not discussed by Ricci in her final administrative decision. We will not entertain Allah's arguments concerning the visitor ban until he has exhausted his administrative remedies.
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