December 2, 2009
JEFFREY NEMES, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Grall and Messano.
At the time this appeal was filed, Jeffrey Nemes was an inmate confined at the Mid-State Correctional Facility (Mid-State) serving an eight-year sentence for bribery and conspiracy. He contends that the Department of Corrections' (the D.O.C.) refusal to modify his custody status was arbitrary, capricious and unreasonable; in violation of the D.O.C.'s own regulations; and in violation of his rights under the United States Constitution and this State's Constitution. We have considered these arguments in light of the record and applicable legal standards. We affirm.
When he first arrived at Mid-State in 2007, Nemes' objective classification score was zero, permitting his assignment to "full minimum custody status." N.J.A.C. 10A:9-4.3(e). However, because Nemes had criminal charges that were pending against him, the facility assigned him to the next more restrictive classification, "gang minimum custody status." N.J.A.C. 10A:9-4.3(d).*fn1
In January 2008, Nemes filed an inmate request form (IRF) seeking "full minimum status" and eventual assignment to a halfway house. The D.O.C. responded by advising Nemes that no further reduction of his custody status would occur while the charges were pending. Nemes followed with two other IRFs in February and March. He noted that although the two charges were pending, he had not been convicted of them, and that they involved events that occurred ten years earlier. In each instance, D.O.C. responded that Nemes would not receive further consideration for a change in custody status until the "court proceeding[s] ha[d] concluded."
In August 2008, the Law Division, Criminal Part, Mercer County, entered an order vacating any detainers previously lodged against Nemes based upon two open indictments, and set his bail on both as "ROR." Nemes immediately served a copy of the order upon officials at Mid-State, and again sought full minimum status and assignment to a halfway house. The D.O.C. responded, once again noted the pending charges, and denied his request.
On August 18, 2008, Nemes wrote to John Blakeslee, the Supervising Classification Officer of the D.O.C., arguing that the refusal to accord him full minimum custody status was unjustified pursuant to applicable regulations. On August 28, Blakeslee responded, advising Nemes that the D.O.C. would not consider him for full minimum custody status until completion of any trial on the pending charges. Blakeslee further noted that this decision was entirely consistent with N.J.A.C. 10A:9-4.5(a)(9), which permits classification decisions based upon "the best interests of the inmate or the safe, orderly operation of the correctional facility or the safety of the community or public at large." This appeal ensued.
Neither the United States Constitution, nor our Constitution, recognizes a right to a less restrictive custody status. Smith, supra, 346 N.J. Super. at 29 (citing Jenkins v. Fauver, 108 N.J. 239, 249 (1987)). As we further observed:
[U]nder State law, the Commissioner of the Department of Corrections has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); see also N.J.S.A. 2C:43-10a (sentences of one year or longer are "to the custody of the Commissioner of the Department of Corrections"). Indeed, under New Jersey law, a reduction in custody status is a matter of privilege, not of right. N.J.A.C. 10A:9-4.2. Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1. [Smith, supra, 346 N.J. Super. at 29-30.]
The D.O.C.'s decision to deny Nemes full minimum custody status was not an abuse of the Commissioner's extensive discretion, nor did it run afoul of the regulatory scheme. First, the regulatory criteria explicitly do not compel a reduction in custody status. N.J.A.C. 10A:9-4.5(c). Instead, the regulations explicitly accord the Commissioner discretion regarding the amount of time an inmate serves in gang minimum custody status. N.J.A.C. 10A:9-4.3(d).
Second, N.J.A.C. 10A:9-4.5 requires consideration of "all relevant factors" in deciding what status is appropriate. Among the factors included in the regulation's non-exhaustive list is "[a]ny reason which . . . relates to the best interests of the inmate or the safe, orderly operation of the correctional facility or the safety of the community or public at large." N.J.A.C. 10A:9-4.5(a)(9). We find no abuse of the Commissioner's discretion in considering the pending charges against Nemes when assigning him to gang minimum custody status. In fact, elsewhere in the regulations, pending charges and/or existing or pending detainers, are cited as appropriate factors for consideration. See N.J.A.C. 10A:9-3.3(a)(14) and (23) (making consideration of "detainers on file or pending" and "[a]ny other factor pertinent to the inmate's case" relevant factors in assigning custody status); and N.J.A.C. 10A:9-3.14(a)(6) (requiring rescoring of objective classification score when there are open charges).
To the extent we have not specifically addressed any of Nemes' other arguments, we find them to be of insufficient merit to warrant any further discussion in this opinion. R. 2:11-3(e)(1)(E).