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Vega v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 14, 2009

ANTHONY VEGA, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 5, 2009

Before Judges Baxter and Alvarez.

This is an appeal from a July 24, 2008 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC assigned Vega a Security Threat Group (STG) classification based on a finding that Vega was a member of the Bloods gang. This classification resulted from photographs of tattoos on Vega's arms and his purported statement, recorded at a May 5, 2005 classification interview, admitting that he was a member of the gang in question.

Some three years after the May 5, 2005 interview that resulted in the STG classification, Vega filed an administrative remedy form requesting the deletion of any references in his records to membership in an STG. The chief investigator of the DOC Special Investigations Division notified Vega that the classification would not be voided, after which Vega filed the instant appeal. Vega did not avail himself of the administrative remedies afforded, but instead chose to appeal directly to this court.

Vega argues on appeal that he has never been affiliated with any STG; has never been found in possession of materials related to gang membership; the tattoos on his arms do not, as asserted by DOC, establish membership in the Bloods gang; and he has never, contrary to the May 5, 2005 classification document, admitted to any such membership.

In particular, referring to that document, Vega asserts that the document was blank at the time he signed it, and therefore some unnamed and unknown prison official must have inserted his purported admission to gang membership after he had signed the form*fn1 and outside of his presence.

DOC asserts that Vega's appeal should be dismissed because he failed to exhaust all administrative remedies available to him. Relying upon Rule 2:2-3(a)(2), DOC asserts that appeals to this court are precluded as long as there remains "available a right of review before [the] administrative agency . . . ." Here, Vega could have, but did not, request that the prison administrator or his designee review the findings of the chief investigator of the Special Investigations Division.

Such an administrative appeal constitutes the final step in the agency process, completion of which is necessary for exhaustion of available administrative remedies. Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63, 69 (App. Div. 2009) (holding that prisoner must exhaust all available administrative channels before appealing to this court from a gang-membership classification). In Ortiz, we dismissed the inmate's appeal without prejudice due to his failure to exhaust the administrative remedies available to him. Id. at 70. We perceive no basis to treat this appeal any differently.

Accordingly, this appeal is dismissed without prejudice to Vega's pursuit of a further administrative appeal to DOC.

Appeal dismissed.


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