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James v. Dep't of Corrections

October 1, 2008

NORMAN JAMES, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections, 07-11-2007.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Messano and Chambers.

Norman James appeals from the final agency decision of the Department of Corrections (DOC) that permanently revoked the visiting privileges of two individuals, Karen Jones and Ruth Williams, based upon a finding that James had used a prohibited cell phone in the prison and the subsequent investigation conducted by DOC's Special Investigations Division (SID). James contends the agency's action was arbitrary, capricious, and unreasonable because it violated various administrative regulations. We have considered the arguments raised in light of the record and applicable legal standards. We reverse.

James is serving a thirty-year sentence for murder and robbery at Trenton State Prison. On July 21, 2005, during a search of his prison cell, DOC personnel found and confiscated a cell phone secreted in the false lid of a can. James was cited for various disciplinary infractions, was found guilty of violating N.J.A.C. 10A:4-4.1, (*.009--"Misuse . . . [of] electronic communication device"), and was sanctioned.

The matter was forwarded to SID for further investigation, and forensic examination revealed several phone numbers that had been called utilizing the cell phone. Two of the numbers were identified as belonging to Jones and Williams. Williams' number also appeared on James' "IPIN" list, i.e., a list of phone numbers he provided to DOC and which he was authorized to call. The investigation revealed that Williams had been called a total of 159 times from the cell phone, "however no calls were accepted." Jones' number was not on James' IPIN list, however, she was on his visitor list and had last visited him in October 2004.

The investigation continued for more than a year with attempts to contact Jones being unsuccessful because her phone number was disconnected. The investigators did, however, on October 30, 2006, contact Williams whose daughter had dated James years earlier. Williams told the investigators that she had not spoken to James since his incarceration, had not visited him, did not know he had a cell phone, and refused to provide the investigators with any further information regarding her daughter's whereabouts.

On November 1, 2006, Michelle R. Ricci, Associate Administrator of the facility, notified Jones by letter that she was "permanently banned from participating in the visit program at New Jersey State Prison," and an identical letter was sent to Williams on November 6, 2006, both of which were copied to James. On June 22, 2007, James wrote to Assistant Superintendent of the prison, Charles E. Warren, Jr., noting that his disciplinary infraction occurred four months prior to the November 16, 2006, memorandum DOC issued to all inmates advising that "an emergency rule adoption ha[d] been executed . . . to implement the Zero tolerance for Misuse or Possession of an Electronic Communication Device . . . Policy." Pursuant to the memorandum, "effective immediately" inmates "found guilty of an electronic communication device related prohibited act" would "have their contact visit privileges terminated," and would not be considered for any lower "custody status . . . than medium custody until . . . the contact visit privileges [were] reinstated." These penalties were in addition to the discipline otherwise meted out for a regulatory violation.

James asked Warren to reconsider the visitor ban. In a letter dated June 25, 2007, Warren responded that both Jones and Williams were not on James' "approved visit card," and "were banned by the residing Administrator[.]" He continued, "since you felt it not necessary to inform me as to why these two women were permanently banned from visiting here . . . I am not inclined to revisit this issue." James sent further correspondence, not in the record, and Warren responded again on July 11, 2007. Reiterating his earlier observations, Warren noted he would "not remove these two individuals from our permanently banned list. This matter has been addressed, and is now closed." James then timely filed this appeal.

James argues that 1) the governing regulations terminating visitation for various disciplinary infractions were not in affect at the time of his infraction; 2) the regulations do not permit the termination of visitation privileges for the specific infraction he committed; 3) DOC did not follow proper procedures in terminating the visitation privileges; and 4) even if the visitation privileges were properly terminated, the regulations provide for reinstatement, thus, a permanent ban is in violation of the regulations.

We review the labyrinth of administrative regulations that guide our decision as to each of these contentions. N.J.A.C. 10A:18-6.19, "Denial, termination or suspension of a visit," provides in pertinent part,

(a) An inmate's visiting privileges shall not be denied because of a violation of correctional facility regulations, other than those regulations specifically related to or concerned with visiting privileges, except in the case of a termination of contact visits sanction as established in N.J.A.C. 10A:4-5.1(c).

(b) A visit may be denied, terminated or suspended and a visiting privilege suspended under ...


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