On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Lisa and Sapp-Peterson.
Appellant, Alonzo Jenkins, a New Jersey State Prison inmate, appeals from a final decision of the Department of Corrections (DOC) responding to appellant's Request System & Remedy Form stating that his work assignment was changed without justification from the administrative segregation kitchen to the G-Trailer kitchen. Although appellant requested an interview, the DOC responded that the assistant food service supervisor stated he had met with appellant and the matter was resolved by reassigning appellant to the G-Trailer kitchen lunch area. Appellant contended that he was wrongfully transferred based upon suspicion that he was the author of an anonymous letter complaining about conditions in the kitchen, and he was denied due process and equal protection of the law.
Upon receipt of the response, which constituted the final agency action, appellant filed this appeal. He argues he was denied due process because he was reassigned from his work program without a hearing before the Institutional Classification Committee (ICC) and did not receive a written notification of the ICC decision. He further argues he was denied equal protection of the law as compared to other similarly situated inmates. Finally, he argues he was discriminated against under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
In his brief, appellant contends that the DOC action deprived him of an increased rate of pay to which he was entitled, and he asks this court to award him the differential from the time of the DOC action until the time of our decision. He also seeks reimbursement of filing fees and out-of-pocket expenses. Finally, appellant seeks reinstatement to the administrative segregation kitchen, at the allegedly higher-paying position of "para-professional cook."
In light of our review of the record and in consideration of the controlling legal principles, we are unpersuaded by appellant's arguments, and we affirm.
The record on appeal, see R. 2:5-4(b), consists of only three items, appellant's Inmate Face Sheet, his Inmate Progress Notes, and the Request System & Remedy Form. This record establishes that, since March 9, 2006, appellant's work assignment has been the kitchen at a pay of $3.20 per day, seven days per week. The incidents underlying this appeal occurred in May 2007. The record does not reflect appellant's alleged promotion to the position of acting para-professional cook, or any corresponding higher rate of pay. The DOC response to the Request System & Remedy Form is dated May 11, 2007. Appellant's Inmate Progress Notes reflect that on July 17, 2007 at appellant's yearly review the ICC found his adjustment satisfactory and scheduled his next yearly review for July 22, 2008.
Although an inmate does not have a liberty interest in his or her work assignment if it is subject to change without proof of misconduct by the inmate, see Jenkins v. Fauver, 108 N.J. 239, 248 (1987), appellant argues that the DOC has created a liberty interest by virtue of its applicable regulations. Those regulations provide that, subject to availability, the ICC shall assign an inmate to a program, which may include a work assignment, treatment program, education program, and/or vocational training program. N.J.A.C. 10A:9-3.4(d). Further, changes in an inmate's institutional program may be made by the ICC upon inmate or staff request when deemed necessary. N.J.A.C. 10A:9-3.11.
The DOC argues that its action in this case did not change appellant's program, which was a kitchen work assignment, but merely changed the location at which he would perform his assignment. As a result, no ICC review or action was necessary, and thus appellant was not entitled to limited due process protections, including notice, a hearing, and a written decision.
We agree with the DOC. An appellate court will not interfere with the ultimate determination of an agency unless satisfied that the determination was arbitrary, capricious or unreasonable, or that it violated legislative policies in the act governing the agency, or that the findings upon which the decision is based are not supported by the evidence, considering the record as a whole. Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963). Applying this highly deferential standard here, we have no occasion to conclude that the DOC misapplied the applicable regulations or applied them in an arbitrary or capricious manner. The record establishes that the ICC assigned appellant to a program consisting of a work assignment in the kitchen at a prescribed pay rate, which continued uninterrupted during the time frame of the events underlying this appeal. Change in location of the work is not a change in the assigned program, and could therefore be accomplished without ICC action. There was no due process violation.
We reject appellant's equal protection and LAD arguments. He has failed to present any factual basis to show disparate treatment. Further, he has failed to show that he was a member of a protected class under either theory. Finally, with respect to the LAD, he did not raise the issue in the administrative proceeding, and it is not now cognizable on appeal. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Appellant's arguments on these points do not warrant further discussion. R. 2:11-3(e)(1)(D) and (E).
Because we reject appellant's asserted bases for relief, it follows that he is not entitled to the monetary and injunctive ...