On appeal from a final decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Winkelstein and Gilroy.
Appellant Michael Gore is an inmate at the New Jersey State Prison in Trenton serving a life sentence, with a mandatory minimum of thirty-nine years, for convictions of murder, robbery, and possession of a weapon for an unlawful purpose. The Department of Corrections had revoked his contact visit privileges after he had been found guilty of two violations of using prohibited substances, one in October 2003 and another in March 2005. Pursuant to the Department's zero tolerance policy, N.J.A.C. 10A:4-5.1 and N.J.A.C. 10A:4-12, the Department sanctioned appellant to a permanent loss of his contact visits on both charges.
On November 26, 2006, appellant sought restoration of those privileges. He appeals from a final decision of the Department that denied that request.
In its decision denying reinstatement of contact visits, the Department stated:
Please be advised under the department's zero tolerance policy, because you have received (1st offense) and were found guilty of a .204 on 9/30/03 and again on 3/29/05, another .204, you have permanent loss of your contact visits. You submitted a request on 11/26/06, and were advised of your visit status on 12/19/06.
This issue has been addressed and is now closed.
Appellant claims, and we agree, that the Department's failure to substantively consider his request for reinstatement was arbitrary and capricious, and in violation of N.J.A.C. 10A:18-6.20(b). The zero tolerance policy does not permanently preclude eligibility for restoration of contact visits. The regulation provides that the reinstatement of contact visit privileges for an inmate adjudicated guilty of a second or subsequent prohibited act "will be considered after the inmate has completed all consecutive sanctions imposed and has submitted a request to the Administrator designee." N.J.A.C. 10A:18-6.20(b). Thus, even if contact visit privileges are terminated under the policy, an inmate may request reinstatement of those visits so long as the inmate waits one year from the date the zero tolerance policy sanction was imposed, and otherwise complies with the regulations. N.J.A.C. 10A:18-6.20(a), (b). The prison administrator has the discretion to either approve or deny the request. Ibid.
Here, appellant claims he met the eligibility requirements for potential restoration of his contact visits. He was entitled to have his application reviewed on its merits and the Department failed to do so.
That said, subsequent to the filing of the instant appeal, on December 19, 2007, appellant pleaded guilty to an *.204 charge of use of a prohibited substance. Pursuant to the zero tolerance policy, the agency again imposed a permanent loss of contact visits, along with 365 days of urine monitoring and completion of a drug treatment program. In light of that recent adjudication, appellant is not currently eligible for restoration of contact visits. Ibid.
Consequently, we dismiss appellant's appeal as moot. We nevertheless direct that he may reapply for reinstatement if and when he complies with all conditions of the governing regulations and with the ...