October 9, 2009
GARDELL HUNT, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Axelrad and Sapp-Peterson.
Gardell Hunt, a state prison inmate, appeals from a final agency decision of the Department of Corrections (DOC) in which a disciplinary sanction "permanently" banning his mother from visiting him was imposed. Hunt pled guilty, with an explanation, to committing prohibited act .703, correspondence or conduct with a visitor in violation of regulations. While additional administrative sanctions were imposed, Hunt's appeal is limited to the permanent loss of contact visits. We reverse.
The circumstances leading up to the imposition of the permanent visitation ban arose from a visit to Hunt by his mother and niece. During the visit, his niece gave him a ten-dollar bill that she had saved. He accepted the money but told her that he was not allowed to take it and, therefore, gave it to his mother. When confronted by prison officials who observed the incident on the video surveillance, he readily admitted his action.
On appeal, Hunt contends his mother was denied due process. Specifically, he urges that his mother should have been afforded a hearing from which a determination could have been made as to her intent. Additionally, Hunt contends the sanction imposed is too extreme and "clearly is an exaggerated response to NJDOC's security objectives." We disagree.
We find no merit to Hunt's claim that his mother was entitled to a hearing. We note that he references no legal authority to support this contention that his mother was entitled to a hearing before his contact privileges were terminated other than Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed. 2d 459 (1989), a decision that addressed a challenge to prison regulations governing the sending of subscription publications to federal prisoners, not a prison's right to impose disciplinary sanctions for an inmate's admitted violation of prison regulations. The procedural safeguards articulated in Avant v. Clifford, 67 N.J. 496 (1975), are intended to govern disciplinary proceedings instituted against inmates.
Turning to Hunt's claim that the sanction imposed was too severe, the Schedule of Sanctions for Prohibited Acts laid out in N.J.A.C. 10A:4-5.1 establishes two categories of offenses for which sanctions may be imposed upon a finding of guilt: those whose identification are preceded by an asterisk,*fn1 and "all other offenses." The regulation also establishes sanctions to be imposed for those offenses that represent a violation of DOC's "zero tolerance" policy related to drugs, alcohol, and the misuse or possession of certain electronic communication devices. Because the offense for which Hunt was found guilty was neither an asterisk offense nor a violation of the "zero tolerance" policy, the range of sanctions that may be imposed for a non-asterisk infraction are set forth in N.J.A.C. 10A:4-5.1(b), which provides:
A finding of guilt in the case of all other offenses shall render the offender subject to one or more of the following sanctions:
1. Up to 15 calendar days of Disciplinary Detention;
2. Loss of one or more correctional facility privileges up to 30 calendar days;
3. Up to 60 calendar days loss of commutation time, subject to confirmation by the Administrator;
4. Administrative Segregation for a specified time not to exceed 90 calendar days subject to confirmation by the Institutional Classification Committee;
5. Loss of furlough privileges for up to two months;
6. Up to two weeks confinement to room or housing area;
7. Any sanction prescribed for On-The-Spot Correction (see N.J.A.C. 10A:4-7);
9. Up to 14 hours extra duty, to be performed within a maximum of two weeks;
10. Suspension of any one or more of the above sanctions at the discretion of the Disciplinary Hearing Officer or Adjustment Committee for 60 calendar days; and/or
11. Referral to the Mental Health Unit for appropriate care/treatment.
A permanent loss of contact visits is not one of the enumerated sanctions. However, N.J.A.C. 10A:4-5.1(g) authorizes the imposition of additional administrative sanctions that may include "[r]ecommending loss of contact visit privileges for up to one year provided the offense is specifically related to, or concerned with a visit program," and also provided the hearing officer's recommendation has been approved by the Institutional Classification Committee (ICC).
Here there is no dispute that the sanction arose out of a visit-related incident. Nothing in the record, however, indicates that the hearing officer's recommendation was ever approved by the ICC. We note further that a loss of contact privileges due to a visit-related incident is limited to "up to one year[.]" N.J.A.C. 10A:4-5.1(g).
The regulations do not provide a basis for the permanent loss of contact privileges, except for up to one year with the approval of the ICC, or in the case of an act subject to the "zero tolerance" policy. A .703 infraction is not subject to the "zero tolerance" policy. We note that in its responding brief, DOC does not address Hunt's contention that his infraction "was a non-asterisk charge and not subject to zero tolerance sanctions." Instead, DOC contends a permanent loss of contact visits is not really permanent because an inmate, after one year, may apply for reinstatement of contact visit privileges. In our view, the right to apply for reinstatement of visitation privileges after 365 days does not validate the imposition of a sanction not expressly authorized under the regulation.
Moreover, N.J.A.C. 10A:18-6.20, upon which DOC relies as the basis upon which an inmate may seek reinstatement of contact visit privileges, is only implicated where an inmate's contact privileges have been terminated in accordance with N.J.A.C. 10A:4-5.1 and 12. As we have previously discussed above, the imposition of the permanent ban on contact privileges is not an authorized sanction under subsection 5.1(b), "all other offenses," of which .703 is one such other offense, nor is there any evidence in the record that the ICC approved the ban pursuant to subsection 5.1(g). Further, subchapter 12 addresses an inmate's right to apply for reinstatement of contact privileges in those circumstances where the inmate has been found guilty of a prohibited act identified in the "zero tolerance" policy, which a .703 infraction is not. Hence, we find no support in the record for the sanction of permanent loss of contact visits.
Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "Although we recognize that deference is generally given to an administrative agency charged with interpretation of the law, we are not bound by the agency's legal opinions." Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Services, Div. of Youth and Family Servs., 157 N.J. 161, 170 (1999)).
Here, there was no basis under any of the provisions set forth in N.J.S.A. 10A:4-5.1 to impose the permanent loss of contact visits. Hence, the imposition of the permanent loss of contact visits was not only unsupported by substantial credible evidence in the record, but under these circumstances, arbitrary.