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Ortiz v. New Jersey Dep't of Corrections

March 20, 2009

EDWIN ORTIZ, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

The opinion of the court was delivered by: Grall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted February 24, 2009

Before Judges Skillman, Graves and Grall.

Edwin Ortiz is an inmate currently incarcerated at Northern State Prison and serving a thirty-year sentence for murder imposed in December 1987. He has been identified as a member of a Security Threat Group (STG), the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C. 10A:5-6.5. Denying his membership in the Latin Kings, Ortiz invoked the Department of Corrections' inmate-remedy system, N.J.A.C. 10A:1-4.1 to -4.9, to obtain an explanation for his identification as a member and correction of his institutional record. Because Ortiz did not file an administrative appeal as authorized by N.J.A.C. 10A:1-4.6 and, therefore, did not exhaust his administrative remedies, we dismiss the appeal.

Department regulations provide necessary context for our decision. A STG is an inmate group designated as such by the Commissioner on the ground that the group poses a threat to persons, property, the community or the orderly operation of a correctional facility. N.J.A.C. 10A:1-2.2; N.J.A.C. 10A:5-1.3; N.J.A.C. 10A:5-6.5(a). The Department prohibits the organization and operation of STGs and specified STG activities. N.J.A.C. 10A:5-6.2(a)-(c); see N.J.A.C. 10A:5-1.3 (defining STG activities). When there is "[e]vidence or information indicative of [STG] organization, operation or involvement in [STG] activity(ies)" disciplinary action is initiated and "a finding of guilt . . . subject[s] the inmate to appropriate disciplinary sanctions." N.J.A.C. 10A:5-6.2(d); see N.J.A.C. 10A:4-4.1 (prohibited act *.010 forbids "participating in an activity(ies) related to a" STG and prohibited act *.011 forbids "possession or exhibition of anything related to a" STG).

The Intelligence Section of the Special Investigations Division (SID), is "authorized to identify inmates as [STG] members." N.J.A.C. 10A:6-5.5(b). Beyond requiring "reasonably sufficient evidence and information" to support an inmate's identification as a "member" of a STG, the Department's regulations provide no criteria for identification of STG members. Ibid.; N.J.A.C. 10A:5-1.3.

The Department has established Security Threat Group Management Units (STGMU), which are special housing units for "core" members of a STG. A "core member" is a member of a STG "whose documented [STG] activity(ies) or behavior as a . . . member or leader poses a threat" to safety, property or "the safe, secure and orderly operation of the correctional facility(ies)." Ibid. An inmate confined in a STGMU "loses reduced custody status and remains in maximum custody until successfully completing a three-phase behavior modification and education program." Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 552 (App. Div. 2007) (internal quotations omitted).

The process for confinement in a STGMU is initiated by SID, which recommends placement. N.J.A.C. 10A:5-6.6(a). On receipt of SID's recommendation, the Administrator or his or her designee determines whether "there is reason to believe that there is evidence and/or information that the inmate is a member of a" STG. N.J.A.C. 10A:5-6.7(a). If adequate reason is found, the inmate is removed from the general population and placed on "Prehearing [STGMU] Status." Ibid.; N.J.A.C. 10A:5-1.3. The inmate is given notice and a hearing before the STGMU Hearing Committee. N.J.A.C. 10A:5-6.9. If the hearing committee "determine[s] that reasonably sufficient information or evidence exists that the inmate is a core member of a" STG, the inmate is confined in the STGMU. N.J.A.C. 10A:5-6.9(l). The inmate has a right to appeal to the Administrator from the hearing committee's determination. N.J.A.C. 10A:5-6.11.

An inmate identified as a member of a STG but not recommended for placement in the STGMU may invoke the inmate-remedy system to question that identification.*fn1 Through the inmate-remedy system "inmates may formally communicate with correctional facility staff to request information from, and present issues, concerns, complaints or problems to the correctional facility staff." N.J.A.C. 10A:1-4.1(a)1. The inmate initiates the process by filing a "Routine Inmate Request" or an "Interview Request." N.J.A.C. 10A:1-4.5. The system "includes an 'Administrative Appeal' through which inmates are encouraged to formally appeal to the Administrator or designee [from] the decision or finding rendered by correctional facility staff in regard to the 'Routine Inmate Request' or 'Interview Request.'" N.J.A.C. 10A:1-4.1. The decision or finding on the administrative appeal is the final decision or finding of the Department. N.J.A.C. 10A:1-4.6(d). An inmate may appeal to this court from such a final decision.

R. 2:2-3(a)(2).

Ortiz filed an interview request on August 9, 2007. The Department did not deny the requested relief until December 26, 2007, and Ortiz did not file an administrative appeal from that determination.

Ortiz was sentenced on December 24, 1987. SID identified Ortiz as member of a STG, the Latin Kings, on May 14, 1997, when he was confined at East Jersey State Prison. A "Security Threat Group Member Validation Form" prepared by SID indicates two grounds for his identification as a member of the Latin Kings - self-admission and correspondence from other inmates ...


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