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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...