On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Gilroy.
Appellant Keith Bowman is an inmate serving a thirty-year sentence for murder at the New Jersey State Prison in Trenton. He appeals from the final decision of the Department of Corrections (DOC) denying his application to be transferred from the Management Control Unit (MCU), a segregated unit within the prison, N.J.A.C. 10A:5-2.1 to -2.31, into the general prison population. Appellant argues, inter alia, that his continued confinement in the MCU is no longer warranted because he does not represent an identifiable threat to the security of the prison. We conclude that the record before us does not support the DOC's decision to continue appellant's confinement in the MCU.*fn1
On August 10, 1990, appellant and six other inmates violently attacked and injured seven unarmed correction officers. Although he was acquitted of the criminal charges arising from this incident, appellant was found guilty of committing prison disciplinary infractions *.002, "assaulting any person," and *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife[,] or unauthorized tool." N.J.A.C. 10A:4-4.1. As a sanction, appellant was confined to the MCU. He has been held in this segregated custodial setting, apart from the general population of the prison, since July 30, 1992.
Aside from his participation in the 1990 incident, the primary reason advanced by the DOC for appellant's continued confinement in the MCU is predicated upon an investigation conducted in 1992. That investigation revealed that appellant was a member of the Afriken National Ujamma (Afriken), a terrorist organization dedicated "to caus[ing] chaos, disruption and the violent elimination of Staff" within the prison system.
As part of the appellate record, the DOC included computer printouts reflecting annual reviews of appellant's confinement in the MCU spanning from 1992 to February 18, 2009. This Management Control Unit Review Committee (MCURC) report indicates that appellant was assigned to Phase III status within the MCU.*fn2 The 2008 Routine Review report also included the assessment of a prison social worker who rated appellant's adjustment to the MCU as "adequate" on a scale that included "poor, fair, adequate, and good." The social worker further noted that appellant completed "Anger Management (2000), Behavior Modification (2000) and Substance Abuse." Finally, the prison's Psychology Department reported no problems or complaints from appellant.
Despite this evidence, the MCURC decided to continue appellant's confinement in the MCU because his "actions continue to pose a threat to the safety and security of any correctional facility." The decision appears to have been based primarily, if not entirely, on appellant's "disciplinary history" emanating from the 1990 incident.
Appellant thereafter sought administrative review of the Committee's decision by prison Administrator Michelle R. Ricci. N.J.A.C. 10A:5-2.7. Among the factors the Administrator must consider on appeal are "[w]hether the decision of the [MCURC] was based on substantial evidence" and "[w]hether the decision rendered was appropriate to the inmate's case." N.J.A.C. 10A:5-2.7(b). In her written decision denying appellant's application, Ricci not only incorporated the Committee's findings, but noted, for the first time, that appellant had committed a disciplinary infraction on November 7, 2008, in which appellant was found to have engaged in fighting with another person in violation of *.004.*fn3 Based on this record, Ricci concluded that appellant continued to pose a danger to the safety and security of the prison.
Appellant now raises two arguments on appeal. First, appellant maintains that the evidence presented to the MCURC does not justify his continued confinement in the MCU. Second, he argues that, in upholding his MCU confinement, Ricci improperly considered a disciplinary infraction appellant committed after the MCURC's October 2008 decision in violation of N.J.A.C. 10A:5-2.11(b)3. We agree.
Under N.J.A.C. 10A:5-2.11(a), the DOC must "conduct a hearing at least annually to review the status of the inmate in order to determine whether an inmate's release from [MCU] is appropriate." At this hearing the inmate has the burden of demonstrating that he has:
1. Participated in the required programs, jobs, educational and recreational programs afforded the ...