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Concepcion v. New Jersey Dep't of Corrections

December 4, 2008

PEDRO CONCEPCION, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 12, 2008

Before Judges Gilroy and Chambers.

Appellant is an inmate at the New Jersey State Prison (NJSP), Trenton, serving a life sentence with a mandatory minimum term of 105 years for three murders. Appellant appeals from the final decision of the New Jersey Department of Corrections (DOC) denying his request to remove the keep separate status (KSS) imposed in 1992 as to inmate John Peplinski, and the KSS imposed in 1993 as to inmates Steven Bolling and Robert Swiontak.*fn1 We affirm.

In June 1993, appellant, Bolling and Swiontak were involved in an altercation while inmates at NJSP. Although appellant suffered an injury during the altercation, he initially denied involvement in it, contending that he suffered the injury while playing basketball. Because a protective custody status investigation conducted by the DOC's Special Investigation Division (SID) confirmed the altercation, the Prison Administrator imposed the KSS as to Bolling and Swiontak.

Contrary to his initial denial of involvement in the altercation, appellant acknowledged during a protective custody status investigation on February 23, 1999, that he fought with Bolling in June 1993. On October 13, 2007, appellant submitted a Request System & Remedy form seeking removal of the KSS. The request was supported by appellant's affidavit, stating that "[s]ince the implementation of [KSS] [fifteen] years ago[,] there [have] not been any incidents with or due to keep separate parties which is indicative of how unreliable the confidential informant['s] report really is. [Fifteen] years without incident should be an indicator that the [KSS] is no longer warranted." The request was also supported by a similar affidavit of inmate Bolling. Lastly, appellant submitted a letter with his request restating his original contention that the 1993 injury was accidentally caused during a basketball game, not during an altercation with Bolling. On October 31, 2007, SID recommended that appellant's request be denied, finding "no compelling evidence that [the KSS] was not necessary and appropriate based on investigation(s)."

On November 7, 2007, appellant submitted a second Request System & Remedy form attaching copies of his original request for removal of the [KSS] and of SID's October 31, 2007 recommendation. On November 9, 2007, the prison administration again denied appellant's request stating: "[t]his matter has been address[ed] repeatedly. There is no change in conditions that would warrant the removal of this keep separate alert. Response by SID is appropriate." On November 15, 2007, appellant filed an administrative appeal, contending that "[t]he decision to impose a keep separate was arbitrary because it was based on demonstrably incorrect information. Failure to rectify that clearly erroneous decision has denied me opportunities for work/training/rehabilitation/privileges available to other inmates." On November 20, 2007, the Prison Administrator denied the appeal, stating that SID's response was appropriate. On November 26, 2007, the administrator issued a written denial of appellant's request to remove the KSS from his file.

On appeal, appellant argues:

POINT I

RESPONDENT'S KEEP SEPARATE ORDER SHOULD BE VACATED FOR LACK OF EVIDENCE AND A FAILURE TO COMPLY WITH AGENCY REGULATIONS.

POINT II

APPELLANT WAS DENIED A MEANINGFUL PROCEDURE FOR REVIEWING HIS REQUEST TO ...


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