July 21, 2010
ABDEL SALEH, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 they were no longer employed by the DOC and directed that Saleh's request for witness statements be honored subject, of course, to the limitations of N.J.A.C. l0A:10-3.10(c).*fn4
Following our remand, Saleh was served with a new notice of intent by facsimile at the Illinois prison. The notice listed the same basis as the prior one, i.e., that Saleh presented an unusual security risk to New Jersey prisons. However, the factual explanation differed from the prior two notices as all reference to Muslims had been deleted, stating solely, "[b]ased on relevant information and the confidential [SID] report on file[,] [t]his transfer of Inmate Saleh would aid in the overall safety and security of the New Jersey Correctional System."
Hearings were held on February l8, and March 4 and l2, 2009, before Hearing Officer Shepperd, during which Saleh appeared by video conference. NJSP inmate Frank Padro, a trained inmate paralegal, was appointed as Saleh's counsel substitute. Both Saleh and Padro made statements at the hearing in which they challenged SID's findings and denied that Saleh was involved in an escape plot. Saleh again contended his transfer was the result of bias towards Muslims prompted by the 9/ll attacks.
As to witness statements and confrontation, Saleh informed the hearing officer that he only wanted statements from two of the seven witnesses previously requested, as well as statements from six other witnesses; seven of the eight requested witnesses statements were obtained.*fn5 Thus, including the nine statements that were previously obtained, a total of sixteen out of seventeen statements were obtained on Saleh's behalf. Saleh also requested confrontation with DOC Commissioner Hayman, Administrator Ricci, Hearing Officer Maniscalco (who rendered the first decision), and SID Investigator Dolce. The hearing officer granted confrontation with Ricci and Dolce because they both had information related to the decision to transfer Saleh; their confrontations were conducted on March l2, 2009. However, confrontation with Hayman and Maniscalco was denied because the hearing officer concluded they had no independent or relevant knowledge of the case other than that provided by SID. Furthermore, as noted by the hearing officer, Hayman, who was not the commissioner in January 2006, did not request Saleh's transfer; the request was made at the institutional level by the NJSP administrator.
Hearing Officer Shepperd also reviewed various reports from SID which addressed the factual basis for the transfer and the reliability of the two confidential informants, including a four-page supplemental report prepared by Principal Investigator Wojciechowicz on December 10, 2008. The report*fn6 detailed Informant #l's reports to SID beginning in the fall of 2005 about Saleh's inquiries and unsuccessful attempts to purchase C4 plastic explosives and TNT, and the information provided by Informant #2 beginning in December 2005 that confirmed and further fleshed out the information provided by the other informant. Specifically, Informant #2 explained his role and provided specific details regarding an active escape plot, led by Saleh, which involved a group of inmates blasting through the North Compound School of NJSP after gathering under the guise of attending Islamic classes, and having a getaway car containing maps, money, clothing and identification documents parked nearby. Informant #2 also explained that the plan was for the inmates to communicate with co-conspirators outside the prison by the use of cell phones and, based on the informant's identification of the location, SID was able to recover a cell phone that had been hidden in the North Compound School. The report also noted that neither informant was aware of the other person's role as an informant.
As to the reliability of Informant #l, Investigator Wojciechowicz detailed six instances, in addition to Saleh's escape plot, in which the inmate provided reliable information to SID that resulted in contraband seizures, disciplinary charges or other administrative action and attached the supporting documentation. Two involved the location of weapons (recovered by custody staff and documented), two involved drug possession (one resulting in the discovery of drugs following a search of the targeted inmate and adjudication of guilt on the disciplinary charge and the other regarding drug smuggling via the mail into the NJSP, prompting an investigation that resulted in an inmate being adjudicated guilty of the offense), one involved a planned assault based on a prior conflict between the two inmates (problem between inmates was independently verified by SID and assault was prevented by separating inmates), and one involved the informant providing information about and supplying a copy of a petition being circulated at Islamic services calling for the removal of Administrator Ricci, which SID viewed as a subversive activity.
The hearing officer then addressed Saleh's claim that he was being transferred because of the exercise of his religious beliefs. Saleh related the harassment by NJSP staff that he claimed occurred following September 11, 2001, including the destruction of his property and the contention that Administrator Ricci was "gunning" for him and the Muslim population. Saleh claimed he had submitted inmate remedy forms ("IRF") and claim forms, and had contacted the DOC Ombudsman to address his grievances. However, the hearing officer's review of Saleh's classification folder, which would contain all IRFs and property claim forms submitted by Saleh and which did, in fact, contain numerous IRFs, failed to reveal any forms that addressed the harassment, religious discrimination or property damage alleged by Saleh. The hearing officer also related that the Ombudsman's Office informed him that its first contact from Saleh was in April 2006 regarding the subject transfer. The hearing officer found incredulous Saleh's contention that he had submitted the forms but that staff ignored his complaints of religious discrimination, and presumably discarded the forms, noting that staff had responded to the other numerous IRFs submitted by Saleh. Hearing Officer Shepperd did not find Saleh demonstrated a personal vendetta or anti-Muslim bias by Administrator Ricci, noting that at the in-person confrontation she said she did not ever recall speaking to the inmate and her written witness statement showed that Islamic classes were discontinued in the North Compound School, the area of the planned escape, but were otherwise still being held at NJSP.
The hearing officer found no evidence to show that Saleh was subjected to any religious discrimination or to support Saleh's claim that his transfer was the result of religious bias. Rather, based on his review of the evidence, the hearing officer concluded that the DOC's request for interstate transfer was based on the maintenance of security with NJSP, stating:
Up until the time the planned escape plot came to light it appears to me that Saleh flew "under the radar" and that little attention was paid to him. As noted earlier, he never documented any of the alleged religious discrimination by filing Inmate Remedy Forms. The information about the escape came to light in the fall of 2005. It is important to note that information about Saleh attempting to obtain explosives came first. Information was later developed that Saleh would stage the escape from the North Compound School, where he could gather inmates under the cover of Islamic classes. The inmate's religion came into play due to the fact he could assemble Islamic inmates in this area, not because the institution is targeting Saleh or [M]uslim inmates. No evidence is presented which would lead me to believe that New Jersey State Prison administration would have addressed this situation differently had Saleh been affiliated with any other religion or inmate organization that met in the North Compound School.
Based on the record, the hearing officer found it reasonable to conclude that Saleh's continued presence at NJSP could have led to a serious security risk and, accordingly, he approved the transfer. This appeal ensued.
On appeal, Saleh asserts the following due process violations that he contends deprived him of the opportunity to prepare and present a defense: (1) the notice of intent was not timely served, the hearing was conducted under adverse conditions in a room full of custody staff members with no relevance to the hearing and the proceedings were not videotaped; (2) the hearing officer denied him confrontation and cross-examination of Hearing Officer Maniscalco and Commissioner Hayman; (3) he was not appointed the counsel substitute of his choice who was familiar with his prior cases; (4) he was denied the inmate classification face sheet of Informant #1 "containing detailed information of [the] inmate's religious belief, housing unit assignments since arrival at the prison and any changes, institutional job assignments, and program participation" and specific location where Saleh was alleged to have spoken about the escape plot; and (5) it was improper for a new SID investigator to prepare a report.
Saleh also renews his claim that he was transferred for religious reasons in retaliation for practicing his religion and teaching Islamic classes at NJSP, as well as his allegation of nefarious motive and conduct by Administrator Ricci. Saleh further contends the confidential informants were neither credible nor reliable, challenges the integrity and trustworthiness of Investigator Dolce, contends the hearing officer was biased because his decision was unreasonable and not based on new evidence, and argues the hearing officer's decision was not based on sufficient credible evidence in the record.
Inmates are entitled to certain limited protections pursuant to the Interstate Corrections Compact prior to nonconsensual out-of-state transfers, including a written notice of intent served personally on the inmate at least forty-eight hours prior to the scheduled hearing containing a summary of information to be considered by the hearing officer, N.J.A.C. l0A:10-3.9, appointment of a counsel substitute to assist the inmate, N.J.A.C. l0A:10-3.10(d), and an in-person or video teleconference hearing during which the inmate has the opportunity to speak on his own behalf and offer evidence to contest the referral for out-of-state transfer, N.J.A.C. l0A:10-3.11(a) and (d). An inmate is also entitled to review the evidence against him with the exception of confidential materials, which may be withheld from the inmate but shall be made part of a confidential correctional facility record for the proceedings. N.J.A.C. l0A:10-3.9(c). As we discussed in our prior opinions, an inmate is also entitled to request and obtain from the DOC's investigator written witness statements relevant to the proceeding. N.J.S.A. 10A:10-3.10(b) and (c).
We discern no denial of due process to Saleh. Based on our review of the record we are satisfied he was afforded all rights under the Interstate Corrections Compact, had a fair opportunity to prepare a defense, Sheika v. N.J. Dep't of Corr., 395 N.J. Super. 266, 274 (App. Div. 2007), and enjoyed the benefit of a fair hearing with an impartial hearing officer, Avant v. Clifford, 67 N.J. 496, 525 (1975). When Saleh stated at the February l8 hearing that he was never sent notice of the hearing, he was informed by the hearing officer that Sergeant Poretti faxed the form to the Illinois DOC and the hearing officer offered to refax the form to him. Even if Saleh did not receive the form until it was refaxed to him that day, we are satisfied he had ample time to prepare his defense considering the hearings extended through March.
Saleh is not entitled to counsel substitute of his choice; he was provided with a trained inmate paralegal to assist him, who more than adequately performed his duties. Counsel substitute submitted numerous statements on Saleh's behalf, along with Saleh's own statements, and assisted him in the preparation and submission of written and confrontation questions and in obtaining witness statements. Saleh participated in the proceedings through video conferencing, which is an appropriate method as delineated in N.J.A.C. 10A:10- 3.11(a), with the Illinois DOC providing such custodial staff as it deemed necessary for the safety and security of its prison.
We discern no abuse of discretion by the hearing officer in denying Saleh confrontation with Commissioner Hayman and Hearing Officer Maniscalco and he adequately explained to Saleh why neither person's testimony would be necessary to adequately understand the issues. Saleh was not entitled to Informant #1's classification face sheet or other information that could identify the inmate, N.J.A.C. 10A:10-3.9(c). Providing Saleh with such confidential information about the inmate would likely jeopardize his safety in the general prison population. As required by the regulation, ibid., the information about the informants was ultimately compiled by the DOC into a confidential appendix subject to review by the hearing officer and this court. In addition, Saleh was provided with summaries of the information contained in the confidential record. There was no error by the DOC in responding to our second remand by having Investigator Wojciechowicz, a senior investigator who was the principal investigator, prepare a supplemental report that addressed the factual omissions we pointed out in our prior opinions rather than obtaining another supplemental report from Investigator Dolce.
Though phrased in a variety of ways, Saleh's other claims are essentially a challenge to the agency's ruling that the request for interstate transfer was based on the maintenance of security within NJSP, not Saleh's religion. Decisions of administrative agencies carry with them a presumption of correctness and our review of such decisions is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Ordinarily, we will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Ibid.; Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). We must also uphold an agency's findings even if we would have reached a different result, so long as sufficient credible evidence in the record exits to support the agency's conclusions. In re Taylor, l58 N.J. 644, 657 (l999). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. l956).
It is clear from our prior opinions and remands that we put the DOC through its paces in order to ensure that the transfer determination was not based on conclusory evidence but, rather, that there was a detailed factual record for consideration by the hearing officer and, if necessary, our reviewing court, particularly with regard to the alleged escape plan and the worth and persuasiveness of the confidential information. We also wanted to make certain that Saleh was provided with all relevant witness statements and had a full opportunity to address his religious retaliation claim. We have set forth the record and hearing officer's findings at length in this opinion to demonstrate that there is substantial credible evidence in the record to support the hearing officer's determination that the confidential informants were reliable, their independent reports about Saleh's attempt to obtain explosives and his leadership role in the escape plan were trustworthy, and there was sufficient, specific information and evidence about Saleh's leadership role, escape plan, and secreting of a cell phone provided to SID to justify the conclusion that Saleh was a security risk.
Although we are cognizant of the fact that the DOC altered its stated factual basis on the third notice of intent to delete all reference to Muslims, we are not persuaded by Saleh's arguments on appeal that the record supports a finding that Administrator Ricci pursued a vendetta against him or the Muslim population of the prison and that Saleh was targeted for transfer because of his religious beliefs. We note there were no IRFs, damage property claim forms or grievances on record regarding these issues prior to Saleh's complaint to the Ombudsman in April 2006 with respect to the present transfer. We defer to the factfinder's credibility assessments and conclusions on this issue, particularly with regard to Administrator Ricci whose demeanor he was able to observe during confrontation. See Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
As previously stated, the DOC has the discretion to transfer an NJSP inmate to an out-of-state correctional facility when that inmate's behavior jeopardizes the security of any New Jersey correctional facility. N.J.A.C. l0A:10-3.4(d)2; N.J.A.C. l0A:l0-3.6(a)6 and 8. It is not our role to agree or disagree with the decision but only to determine whether the decision to transfer was arbitrary, capricious or unreasonable. Henry, supra, 81 N.J. at 579-80. Based on our limited standard of review, we are satisfied that under the record finally presented, the agency's decision to direct the interstate transfer of Saleh was not arbitrary, capricious or unreasonable.