December 2, 2009
ALEXANDER C. RACK, IV, #278646, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Reisner and Yannotti.
Alexander C. Rack, IV, (Rack) is an inmate in the State's correctional system, who is incarcerated at Northern State Prison (NSP) in Newark, New Jersey. Rack is presently serving a twenty-eight year sentence which was imposed after he was convicted of criminal attempt to commit murder, stalking, burglary and a weapons offense. Rack appeals from a final determination of the Department of Corrections (DOC), dated October 27, 2008, which denied his application for a change in his Objective Classification Score (OCS), which affects his custody status. We affirm.
The custody status of male inmates in the State correctional system is initially determined in accordance with the objective criteria prescribed in N.J.A.C. 10A:9-2.4. Inmates are thereafter reclassified. The criteria for the reclassification of male inmates, as set forth in N.J.A.C. 10A:9-2.6(b), are: severity of offense; prior history of assault offenses in the previous ten years; history of institutional violence within the previous five years; escape history during the previous five years; number of disciplinary reports within the previous eighteen months; most severe disciplinary infraction received in the previous twelve months; current age; and program participation during current admission. N.J.A.C. 10A:9-2.6(b)(1) to (8). Inmates are assigned points in each category in accordance with prescribed assessment scales. N.J.A.C. 10A:9-2.6(a).
The institutional violence scale for male inmates is set forth in N.J.A.C. 10A:9-2.11(a), which states in pertinent part that:
1. Inmates with zero institutional disciplinary reports shall receive zero points;
2. Inmates with an institutional disciplinary report including violence not involving use of a weapon or not resulting in serious injury shall receive five points; or
3. Inmates with an institutional disciplinary report including violence involving use of a weapon and/or resulting in serious injury shall receive seven points.
Rack was reclassified in September 2008, and he was assigned the following points scores on the OCS:
Severity of Current Offense 6 Prior History of Assaults Offenses 0 Escape History 0 History of Institutional Violence 5 Number of Disciplinary Reports -2 Most Severe Discipline 0 Age -2 Program Participation -2 Total Score 5
Rack was assigned five points for history of institutional violence because in 2005, he was sanctioned for fighting with another person, which is prohibited act *.004 under N.J.A.C. 10A:4-4.1(a) and is considered an act of institutional violence under N.J.A.C. 10A:9-2.6(b)(3)(iv).
An inmate's score of twelve points or more on the OCS indicates a recommendation for placement in maximum custody status. N.J.A.C. 10A:9-2.6(a)(1). A score of five to eleven points indicates a recommendation for placement in medium custody status. N.J.A.C. 10A:9-2.6(a)(2). A score of four points or less indicates a recommendation for placement into minimum custody status. N.J.A.C. 10A:9-2.6(a)(3).
On October 23, 2008, Rack filed a "remedy appeal" in which he requested that the DOC re-score his OCS. Rack asserted that he should only be assigned three points for history of institutional violence because in 2005, when he committed the infraction, the regulation assigned three points for that charge. See 39 N.J.R. 5340(b) (December 17, 2007), amending N.J.A.C. 10A:9-2.11 and other regulations. Rack maintained that the application of the amended regulation to determine his OCS was a violation of his constitutional rights. On October 27, 2008, the Assistant Superintendent of NSP rejected Rack's appeal, finding that he had been correctly scored. This appeal followed.
Rack first argues that the DOC denied him of his constitutional rights to due process and equal protection by failing to "correctly score" his OCS. Rack maintains that he has a constitutional right to have the points attributable to his 2005 fighting charge determined in accordance with the regulation in effect at that time, rather than the amended regulation which became effective in 2007. We disagree.
Inmates in correctional facilities do not have a constitutionally protected liberty interest in a reduced custody status. Smith v. Dept. of Corrections, 346 N.J. Super. 24, 29 (App. Div. 2001). Indeed, the Commissioner of the DOC "has complete discretion in determining an inmate's place of confinement." Ibid. (citing N.J.S.A. 30:4-91.2). Moreover, "under New Jersey law, a reduction in custody status is a matter of privilege, not of right." Id. at 30 (citing N.J.A.C. 10A:9-4.2).
Rack argues that the 2007 amendment to N.J.A.C. 10A:9-2.11 may not be constitutionally applied to him. A similar argument was raised in Muhammad v. Balicki, 327 N.J. Super. 369 (App. Div. 2000). There, the inmate was serving a life sentence as a result of conviction in 1976 for murder. Id. at 371. The inmate attempted to escape from custody in 1976. Ibid. He succeeded in escaping in 1983, was convicted of escape and sentenced to a consecutive five-year term of incarceration. Ibid. In 1993, the inmate was placed on reduced custody status, which enabled him "to enjoy more mobility and less supervision in the prison than the general prison population." Ibid.
At that time, the relevant administrative regulation provided that inmates who were not then serving a sentence for escape or attempted escape were eligible for reduced custody status. Ibid. The regulation was amended in 1997 to provide that an inmate was not eligible for reduced custody status if he had "two instances of escape or attempted escape or a combination of either through convictions or prohibited acts[.]" Id. at 372 (quoting N.J.A.C. 10A:9-4.8(e)).
In Muhammad, the inmate argued that the amended regulation was an "ex post facto" regulation that could not be constitutionally applied to preclude him from continuing in reduced custody status. Id. at 371. We rejected that argument, noting that the inmate had "no liberty interest in being classified in accordance with the earlier regulation." Id. at 372. We stated that the change in a prisoner's conditions of confinement did not require due process protection because it did not constitute an "'atypical [or] significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Ibid. (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed. 2d 418, 430 (1995)). The same principle applies in this case. Rack has no constitutional right to have his custody status determined in accordance with the regulation in effect in 2005.
Rack also maintains that his OCS should be reduced because he was purportedly acting in self-defense when he was charged and found guilty of fighting with another inmate in 2005. Rack notes that in DeCamp v. Dept. of Corrections, 386 N.J. Super. 631 (App. Div. 2006), we determined that in cases where an inmate is charged with fighting with another person, "the hearing officer adjudicating the matter must carefully consider a proffer of self-defense, and if established, exonerate the individual charged with the infraction." Id. at 640.*fn1 Rack says he should be afforded a new disciplinary hearing or his OCS should be re-scored.
Rack's arguments are without merit. Aside from Rack's assertions, there is no evidence to show that he acted in self-defense when he engaged in a fight with another inmate. In any event, Rack pled guilty to the charge before DeCamp was decided. He never appealed from the imposition of sanctions or argued that he had been improperly denied an opportunity to assert self-defense in response to the charge. Therefore, Rack is not entitled to a new disciplinary hearing or rescoring of his OCS.
In addition, Rack argues that he was denied equal protection of the law because some inmates are permitted to obtain reduced custody status while others are not. In support of this contention, Rack refers to inmates in the Security Threat Group Management Unit (STGMU) and those who receive sanctions for violating the DOC's "zero tolerance" rules. According to Rack, the DOC has a policy of "overrides" that allows these inmates to be considered for all forms of "reduced custody status" if they complete certain programs or activities.
Suffice it to say, Rack is not similarly situated to the inmates in the STGMU or those sanctioned for violating the DOC's "zero tolerance" rules. Moreover, an inmate's custody classification is not final and immutable. Smith, supra, 346 N.J. Super. at 31-32. Indeed, an inmate's custody status is subject to periodic review. See N.J.A.C. 10A:9-3.5(e) (requiring case review and reevaluation at intervals of three to twelve months, as determined by the Institutional Classification Committee).
Rack further argues that the DOC improperly allowed the Assistant Superintendent to render a decision on his remedy appeal. The contention is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).