On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 13, 2010
Before Judges Axelrad, Fisher and Sapp-Peterson.
In this appeal, we consider for the third time the sufficiency of the proceedings that resulted in the Department of Correction's ("DOC") transfer of inmate Abdel Saleh to an out-of-state prison. In the first two appeals we were not satisfied the Special Investigations Division ("SID") reports that resulted in his transfer, which referenced Saleh's activities and information supplied by confidential informants, were sufficiently detailed so as to be reliable and susceptible to appellate review, Saleh's production requests were honored, or all of his claims were addressed. Therefore, we remanded for the development of the facts and the source of the evidence relied upon by the hearing officer, including supplementation and amplification of the record, providing of witness statements to Saleh, and the scheduling of additional hearings. Following another hearing in which Saleh participated by video conference from an Illinois prison, the hearing officer again determined there was a basis for the transfer. Saleh again appealed, and this time we affirm.
We summarize the procedural history, which has been set forth at length in our two prior opinions. Saleh v. N.J. Dep't of Corr., No. A-3940-05T1 (App. Div. April 18, 2007); No. A-0620-07T1 (App. Div. Sept. 22, 2008). Saleh is serving a life sentence in prison, with a forty-five-year period of parole ineligibility. At the time of the initial order for transfer in March 2006, Saleh had been housed in New Jersey State Prison (NJSP) for approximately eleven years.
The initial notice of intent to seek nonconsensual interstate transfer ("notice of intent") served upon Saleh prior to his first hearing asserted that an interstate transfer was being sought because of the "[p]resence of [a] crisis situation in which reduction of inmate population is essential,"*fn1 and gave the following description of the alleged factual underpinnings for this contention:
Based on relevant information and the Special Investigation Divisions (SID) report on file[,] I/M Saleh has been identified as the leader, soliciting other inmates housed within NJSP to aid and participate in a plan to escape. It is recommended that I/M Saleh be sent to a state with a low Muslim population to reduce the potential to use his knowledge of Islam to influence other Muslim inmates with negative actions. Transfer of I/M Saleh would aid in the overall safety and security of the NJDOC, as inmates who practice the Muslim religion are widely throughout the Correctional Facilities in New Jersey.
Saleh and a paralegal assigned as counsel substitute appeared at the hearing on March 14, 2006. The hearing officer concluded that Saleh's presence created a "serious threat" in New Jersey prisons, which had a large Muslim population, and referred Saleh for interstate transfer. The hearing officer relied primarily on the SID report referred to in the notice, which stated that Saleh was involved in soliciting other inmates to obtain weapons and contraband as part of a planned escape and maintained a significant influence on other inmates of the Muslim faith, whom he solicited in furtherance of his plan, because he was a Palestinian national with considerable religious knowledge. Saleh's motion for a stay pending appeal was denied and he was transferred to a prison in New Mexico on May 2, 2006.
On appeal, Saleh argued he was deprived of due process and that the DOC's determination violated his First Amendment rights. We remanded, finding the SID report prepared by Investigator Dolce contained no indicia of the reliability of the facts upon which it was based or any explanation as to how the information was gathered. We noted there was "not even a reference to [the information] being received from previously reliable sources, and the individual who conducted the investigation did not testify; only his report was received.... The record... must contain some independent indication of the reliability of the information contained in the report; here there was none." Saleh, supra, No. A-3940-05T1 (App. Div. 2007) (slip op. at 4-5).
Following our remand, Saleh was served in an Illinois prison*fn2 with a new notice of intent based on another one of the five general statements for seeking interstate transfer, i.e., "[u]nusual security risk presented," but adopting the identical factual explanation as contained in the original notice. In compliance with our remand, Investigator Dolce prepared a supplemental report, noting for the first time that confidential informants were utilized in gathering information as to Saleh's activities. Dolce explained there were two informants who provided information that was deemed reliable. Specifically, Informant #1 was deemed reliable because he had provided credible information on twelve occasions over a sixteen-year period which "proved to be credible and/or led to an ongoing investigation" in the following general instances: information on location of weapons (four times); information on the location/trafficking of narcotics (four times); information on planned group demonstrations (two times); information on a planned assault (one time); and information on an escape attempt (one time). Informant #1 was purportedly able to provide specific detail related to Saleh's involvement in a plan to escape from custody as well as his ability to influence other inmates. Though Informant #2 was used for the first time, the investigator deemed the information provided regarding Saleh's activities to be reliable because it was consistent with known facts as well as with information culled through the SID investigation. Investigator Dolce expressed a concern about the danger the confidential informants would face in the general prison population if their identities were discovered.
Saleh participated in a hearing on July 23, 2007 by video conference. The hearing was adjourned so Saleh's Illinois inmate paralegal who was serving as counsel substitute could be provided with the relevant DOC regulation pertaining to interstate transfers and the DOC could explore Saleh's request for statements from sixteen witnesses, including both inmates and employees of NJSP.*fn3 Following the next hearing on August l0, 2007, Gary Shepperd, another hearing officer, found that the evidence to support the transfer, as detailed in the SID reports, was credible. Saleh again appealed and we concluded another remand for additional proceedings was necessary, stating:
(a) there was an insufficient development of the record following our prior remand; (b) Saleh was deprived of his right to the presentation of written statements from seven [of the sixteen] witnesses, and (c) a further consideration and explanation regarding Saleh's claim that he was transferred because of the exercise of his religious beliefs is warranted. [Saleh, supra, No. A-0620-07T1 (App. Div. 2008) (slip op. at 21-22).]
Specifically, with respect to the development of the record, we directed that more detailed information be provided, possibly in the form of a confidential appendix, regarding the past instances in which Informant #l was deemed reliable, the content of what the informants said, the escape plot, and Saleh's role in it. Id. at 27-29. We determined that without such further detail, the hearing officer would be unable to properly assess the credibility of the informants and the factual record, and we likewise would be thwarted in our ability to analyze the record. We also concluded that the DOC's investigator was not justified in failing to provide Saleh with statements from seven witnesses solely because ...