September 15, 2008
CARL ANDERSON, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 August 27, 2008
Before Judges A. A. Rodríguez and Lihotz.
Inmate Carl Anderson is incarcerated at Trenton State Prison. He appeals from his placement in involuntary protective custody status. We affirm.
On January 2, 2007, Special Investigations Division Investigator Raphael Dolce received confidential information that the "Bloods" gang and other members of a Security Threat Group were going to assault Anderson in retaliation for an assault Anderson had allegedly ordered on another inmate. Anderson was immediately placed in involuntary protective custody. Dolce conducted an investigation. Two separate sources indicated to Dolce that the threat against Anderson was valid. Anderson refused to cooperate with Dolce.
Three weeks later, Dolce issued a report. As a result, Anderson was served with notice of a protective custody hearing. At the hearing, and based on Dolce's report, the hearing officer ordered that the inmate remain in protective custody status to ensure his safety.
Anderson appealed to the Prison Administrator. The Administrator upheld the hearing officer's decision. Anderson moved for reconsideration. The Administrator denied the motion. This constitutes a final agency decision of the Department of Corrections (DOC).
Anderson appealed to us. While the appeal was pending, the DOC moved for a temporary remand. We granted the application, M-3125-07 (App. Div. February 26, 2008).
A new protective custody hearing was held. At the hearing, Anderson was offered the assistance of counsel substitute and the opportunity to obtain witness statements. He declined both and did not provide any documentary evidence. Anderson stated only that he sought release from protective custody. Hearing Officer Maniscalco found that Anderson should remain in protective custody status to ensure his safety.
On appeal, Anderson contends:
THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE ANDERSON'S PLACEMENT IN THE PROTECTIVE CUSTODY UNIT WAS NOT DETERMINED TO BE BASED ON RELIABLE EVIDENCE, THE HEARING OFFICER'S DECISION VIOLATED THE ADMINISTRATIVE CODE AND ANDERSON'S RIGHT TO A FAIR HEARING.
THE DECISION OF THE ASSOCIATE ADMINISTRATOR TO UPHOLD THE APPELLANT'S PLACEMENT IN PROTECTIVE CUSTODY WAS CONTRARY TO ADMINISTRATIVE CODE.
We reject these contentions.
At the outset, we note that Anderson is not appealing from a disciplinary action. He has been placed in protective custody not as a punishment but for his own safety. He cannot waive this protection because the DOC is responsible for his safety while incarcerated. N.J.S.A. 30:1B-3c. Anderson has no "liberty interest" in his present status. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed. 2d 418, 429-30 (1995). This is because administrative confinement, such as protective custody, does not deprive an inmate of a constitutionally recognized liberty interest. Ibid.; Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997).
Anderson was not subjected to an atypical and significant hardship. Sandin, supra, 515 U.S. at 484, 115 S.Ct. at 2300, 132 L.Ed. 2d at 429-30. See also Fraise v. Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002), holding that transfer to a security threat group management does not implicate a liberty interest. In Fraise, the inmates were transferred because they were perceived to be a threat to others. Therefore, placement in protective custody in order to safeguard an inmate that has been threatened does not implicate a liberty interest.
Accordingly, we find no basis upon which to disturb the findings and conclusions of the DOC.
Our review has also included an examination of the process and procedures afforded Anderson by the DOC. We conclude that these procedures ensured Anderson received the level of rights generally accorded to prison inmates as determined by law, which include written notice of the claimed violations, disclosure of evidence, the opportunity to be heard and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the factfinders as to evidence relied on and reasons for acting. McDonald v. Pinchak, 139 N.J. 188, 195; Avant v. Clifford, 67 N.J. 496, 523 (1975).
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