June 19, 2008
MICHAEL FUSCALDO, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections, #281725/SBI#771967B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2008
Before Judges Cuff and Lisa.
Appellant, Michael Fuscaldo, was sentenced on May 10, 1996 to life in prison with a thirty-year parole disqualifier. His mother was an approved visitor at the state prison facility in which appellant was housed until the Department of Corrections (DOC) permanently revoked her visiting privileges on November 27, 2006. Upon notification to his mother of the ban, appellant filed an Inmate Request and Remedy Form. He stated that neither he nor his mother ever violated a rule during a visit and that no reason was furnished when his mother was notified of the ban. He requested reinstatement of his mother's visiting privileges. Within ten days, the Associate Administrator responded, upholding the ban and stating that it was based upon an investigation of the Special Investigations Division (SID). See N.J.A.C. 10A:18-6.9(d) (authorizing appeal by inmate of denial of visitation privileges and requiring response by Administrator within ten days). No further information was furnished. No hearing was held. This appeal followed.
Appellant argues that the DOC decision to permanently ban his mother from visiting him in prison violated his due process rights, was not supported by the evidence, and was arbitrary, capricious and unreasonable. We remand for reconsideration in light of concerns we express in this opinion.
In a confidential appendix, the DOC has furnished us with a copy of the SID investigation report.*fn1 The report reveals that inmate Miguel Ramos conducted a large-scale contraband smuggling and money laundering operation while he was confined in state prison. Approximately 131 prison inmates provided money to Ramos's family members or associates outside of the prison. The money was furnished either directly by the inmates or by family members of the inmates or others outside of prison. In return, contraband was smuggled into the prison and delivered to the inmate who had paid the pre-arranged price to purchase the item. The contraband included drugs, weapons, cellular telephones, escape paraphernalia, and other miscellaneous items. More than $85,000 was transacted through a bank account established by members of Ramos's family as part of this scheme.
The investigation report includes a photocopy of a money order dated May 14, 2004 in the amount of $100 from appellant's mother payable to one of the conspirators and deposited in the subject bank account. The DOC contends this established that defendant's mother, acting in concert with defendant, participated in the scheme, and supports the reasonable inference that in exchange for the $100, some item or items of contraband were smuggled into the prison and delivered to appellant.
As a result of the SID investigation, Ramos was transferred to a prison in another state for a high level security status confinement. The SID identified numerous civilians*fn2 and inmates with whom they visited and recommended that "[t]hese civilians will all be subject to permanent visit bans as they have transacted funds with Ramos' family for the purpose of having contraband including weapons, narcotics, cellular telephones and escape paraphernalia smuggled into NJSP." The report further noted that "these transactions were conducted so as to evade and disrupt the department's ability to control and monitor monetary transactions and correspondence."
Inmates and their visitors are on notice of the DOC's zero tolerance policy regarding drugs and alcohol and misuse or possession of electronic communication devices. See N.J.A.C. 10A:1-2.2; Department of Corrections, New Jersey State Prison Visitor's Handbook 7 (2007) ("Any visitor found attempting to introduce any drug or alcohol or related item(s) into the Institution would be both permanently banned from visitation privileges with ANY inmate under Department of Corrections custody and is subject to criminal prosecution."), authorized by N.J.A.C. 10A:18-6.1(d). To justify the permanent ban of appellant's mother, the DOC relies upon its regulation authorizing suspension of visiting privileges for various causes, including "[a]ny action that affects the ability of the staff to ensure the safe, secure and orderly operation of the correctional facility and the visiting room." N.J.A.C. 10A:18-6.19(b)8.*fn3
We first note that, although the factual record before us, consisting principally of the confidential appendix, appears to contain substantial evidence of appellant's mother's participation in the Ramos scheme, presumably on behalf of appellant, we question whether, in the face of such a harsh sanction, appellant should have been entitled to some procedural safeguards, as a matter of due process and fundamental fairness. Because we remand for reconsideration, and because the due process issue is not adequately briefed, we do not address the issue at this time.
Whether, in light of the applicable DOC regulations and the manner in which they were applied to appellant, the DOC action imposed "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), and whether additional procedural safeguards are required can be addressed in the remand proceedings. See also Cooper v. Garcia, 55 F. Supp. 2d 1090 (S.D. Cal. 1999) (dealing with family visitation privileges); Cordova v. LeMaster, 96 P.3d 778 (N.M. 2004) (dealing with indefinite suspension of spousal visitation).
The DOC has articulated no particularized basis for the sanction of a lifetime ban in appellant's case. Presumably the decision was based on the substantial scope of the Ramos operation and its capacity to seriously compromise the safety and security of the prison, and the SID recommendation that all involved civilians be permanently banned from visiting.
However, immediately following N.J.A.C. 10A:18-6.19(b), relied upon by the DOC for its action, is another subsection that states that "prior to the denial or termination of visiting privileges for circumstances listed in (b) above, less restrictive action should be instituted." N.J.A.C. 10A:18-6.19(c). The DOC never informed appellant, despite his request, of the regulation supporting its action, and the record does not reveal whether consideration was given to any lesser sanction. In addition to N.J.A.C. 10A:18-6.19(c), we note that in other circumstances inmates are allowed to apply for reinstatement of terminated visiting privileges after 365 days. See N.J.A.C. 10A:4-5.1(c); N.J.A.C. 10A:18-6.20(a). It does not appear that any such opportunity was given to appellant.
The across-the-board sanction of a lifetime ban imposed on all civilian participants in the Ramos scheme might well fall more harshly on some inmates than others. For example, some inmates might be scheduled for release in a short time, or the relationship of the visitor with the inmate might be casual or attenuated. Here we have a mother-son relationship and a life sentence. Further, some of the civilians might have participated in the scheme to a greater degree than others. In this case, a single $100 transaction was involved in an $85,000 operation. Proportionality of the sanction to the scope and gravity of the offense may well have a bearing on the reasonableness of the sanction imposed. We are aware of no standards guiding the duration of visitor bans.
We accordingly remand to the DOC for reconsideration of the matter. The DOC shall conduct the proceedings as it deems appropriate and, if a visitation ban is imposed on appellant's mother, it should issue a statement of reasons for the specific sanction imposed, including reference to the factors discussed in this opinion.
Remanded for reconsideration.