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Scott v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 15, 2009

BRADFORD SCOTT, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Determination of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2008

Before Judges Payne and Lyons.

Bradford Scott, an inmate of Trenton State Prison serving a life sentence for criminal attempt and other crimes with a twenty-five-year period of parole ineligibility, a consecutive ten-year sentence for aggravated assault with a five-year period of parole ineligibility, and a consecutive thirty-year sentence for murder with a thirty-year period of parole ineligibility, appeals from a final agency decision permanently denying him contact visits following commission of three zero-tolerance offenses while incarcerated.

On July 28, 1999, Scott was charged with committing prohibited act *.258 (refusing to submit to testing for prohibited substances), a zero tolerance offense. See N.J.A.C. 10A:4-5.1(c) (specification of zero tolerance offenses) and-12 (zero tolerance policies). He was sanctioned with a permanent loss of contact visits. On November 5, 2001, Scott was charged with committing prohibited act *.204 (use of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff), also a zero tolerance offense. He was found guilty of the offense, and again was sanctioned with a permanent loss of contact visits.

On July 15, 2004, Scott's contact visits were reinstated. However, on July 14, 2004, he again had been found guilty of committing prohibited act *.204. The determination of the hearing officer that the offense had been committed was upheld on July 20, 2004, along with a further sanction of permanent loss of contact visits.

On August 21, 2007, Scott sought reinstatement of his contact visits. However, Scott was informed in a memorandum dated September 19, 2007 from Assistant Superintendent Jeffrey Bell that, as the result of commission of three zero tolerance offenses, Scott had "permanently lost" his contact visit privileges in accordance with N.J.A.C. 10A:1-2.2 (definitions, including "Zero Tolerance Drug/Alcohol Policy") and 10A:4-5.1. Reconsideration was also denied, and this appeal followed.

On appeal, Scott argues that, under current regulations, there is no such thing as a "permanent" loss of contact visits, although the prison administrator could, in his discretion, deny restoration so long as the use of discretion was not arbitrary and capricious. He is correct. N.J.S.A. 10A:18-6.20, entitled "Request to reinstate contact visit privileges," provides:

(a) An inmate may request the reinstatement of contact visit privileges that were terminated in accordance with N.J.A.C. 10A:4-5.1 and 12. After 365 days from the date the sanction was imposed, the inmate may forward a written request for reinstatement of contact visit privileges to the Administrator or designee. If a request is not produced by the inmate, no consideration of reinstatement shall be extended. The Administrator or designee shall review and approve or disapprove the reinstatement of contact visit privileges. The inmate may appeal the decision of the Administrator or designee to the Assistant Commissioner or designee, Division of Operations.

(b) The reinstatement of contact visit privileges for an inmate who has been found guilty of a second or subsequent prohibited act identified in a zero tolerance policy as established in N.J.A.C. 10A:4-5.1 and 12 will be considered after the inmate has completed all consecutive sanctions imposed and has submitted a request to the Administrator or designee.

Accordingly, we remand this matter to the Department of Corrections for further consideration of Scott's request. We express no view as to whether contact visits should be reinstated.

Reversed. Jurisdiction is not retained.

20090115

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