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L.O. v. Dep't of Human Services Special Treatment Unit

July 8, 2010

L.O., APPELLANT,
v.
DEPARTMENT OF HUMAN SERVICES SPECIAL TREATMENT UNIT, RESPONDENT.



On appeal from a Final Decision of the Department of Human Services, Special Treatment Unit.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Cuff and Waugh.

Appellant L.O. appeals from the determination of the Clinical Director of the Special Treatment Unit (STU), which is jointly operated by the Department of Human Services (DHS) and the Department of Corrections (DOC), declining to afford him a due process hearing with respect to his placement in the STU's Modified Activities Program (MAP) following an altercation with another STU resident. We dismiss the appeal as moot.

I.

We glean the following facts from the record. In 1989, L.O. was convicted of crimes involving sexual assault. He was sentenced to an aggregate term of thirty-eight years imprisonment, during twelve years of which he would not be eligible for parole. His conviction was reversed. State v. [L.O.], 133 N.J. 141 (1993). He was retried and convicted on some, but not all, of the same charges. He was sentenced to incarceration for thirty years, with a twelve-year period of parole ineligibility.

Upon parole, the State moved to civilly commit L.O. under New Jersey's Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which provides for the involuntary commitment of certain persons convicted of sexual offenses who require "continued involuntary commitment." N.J.S.A. 30:4-27.32(a). L.O. was temporarily committed, pending a final commitment hearing.

Persons civilly committed under the Act are housed at the STU, which is primarily operated by DOC. N.J.S.A. 30:4-27.34(a). DHS is responsible for providing treatment to STU residents. N.J.S.A. 30:4-27.34(b). The two departments are required to "participate in an interagency oversight board to facilitate the coordination of the policies and procedures of the facility," N.J.S.A. 30:4-27.34(c), and to promulgate regulations concerning "the rights and rules of conduct applicable to a person subject to involuntary commitment as a sexually violent predator," N.J.S.A. 30:4-27.34(d). See also M.X.L. v. N.J. Dept. of Human Servs., 379 N.J. Super. 37 (App. Div. 2005).

According to L.O., the following events gave rise to his transfer to MAP. On July 19, 2009, L.O. returned to his cubicle from another section of the STU. Each cubicle holds four STU residents. Another resident, A.B., who shared the same cubicle, told L.O. to stop putting his note pads on top of A.B.'s storage container.*fn1 L.O. asserts that A.B.'s container was improperly placed in his area. L.O. told A.B. that the container was in his area and should be moved back to A.B.'s area. A.B. refused and left the cubicle.

L.O. then proceeded to move the container to A.B.'s side of the cubicle. A.B. ran back to the cubicle and, according to L.O., attacked him by jumping on his back, which caused L.O. to fall forward and cut his arm on the locker. L.O. asserts that, in self-defense, he pulled A.B. off his back, grabbed him by the back of his neck and pushed his head downward. L.O. held him in that position until STU guards arrived. L.O. was taken to the infirmary for treatment and then to "detention."*fn2

As a result of what it described as "a physical argument with another resident," DHS placed L.O. on Tier MAP and in a Tier MAP treatment group so that he could, according to DHS, "therapeutically process the incident." See M.X.L., supra, 379 N.J. Super. at 45-46 (generally describing the MAP levels and restrictions). DHS advised L.O. that his therapeutic intervention would remain in place for thirty days until he had time to address the issue in treatment. See N.J.A.C. 10:36A-2.4(a).

On July 30, 2009, L.O. filed a remedy request form with Dr. Merrill Main, Clinical Director of the STU, requesting that his treatment team's decision to place him on MAP be reversed. On August 13, 2009, Main responded to L.O.'s remedy request. He stated that the MAP placement was handled in a clinically sound manner. The response noted that L.O.'s core complaint was that he believed he was unfairly placed in MAP by his treatment team after the incident with the other resident. Main noted that during the initial MAP review, DHS staff came to understand that there had been conflict escalating between L.O. and the other resident for some time and that L.O. could have brought the matter to his therapists prior to the altercation to arrange for conflict resolution. Main indicated that addressing such matters is the goal of the MAP ...


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