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Graf v. New Jersey Dep't of Corrections

August 4, 2010

CLIFFORD J. GRAF, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 25, 2010

Before Judges Wefing and Grall.

Appellant Clifford J. Graf is an inmate incarcerated at South Woods State Prison. He appeals from a final decision of the Department of Corrections (Department) finding him guilty of a disciplinary infraction, N.J.A.C. 10A:4-4.1(a). Graf was charged with prohibited act ".701 unauthorized use of mail or telephone."

The allegation was based on Graf's use of Fagotti's inmate personal identification number (IPIN) to call that inmate's wife. The other inmate was in detention. Graf placed the call, identified himself as the person who represented the inmate at a disciplinary hearing, informed the wife of the sanctions the inmate had received and relayed a "personal message" from the inmate. The number Graf called was on Fagotti's "eligible/permitted" telephone list but not on Graf's "eligible/permitted" telephone number list. For that reason, he was charged with "unauthorized use of a telephone." Graf received the following sanctions: ten days' detention, sixty days' loss of commutation time, ninety days of administrative segregation and thirty days' loss of phone privileges. The hearing officer recommended those sanctions to deter Graf from using other inmates' IPINs to call other inmates' families.

Graf did not deny the conduct alleged. On his administrative appeal, he asserted that the Department had not provided evidence establishing that he was "put on notice that it was a violation of any rule or regulation of the institution to make a call to another inmate's family using that inmate's IPIN when that inmate is unable." The prison administrator denied Graf relief on the ground that the evidence produced at the hearing supported the .701 charge and the sanction was proportionate to the offense.

On appeal, Graf claims a violation of his due process rights based on the inadequacy of the evidence. He bases this claim on the Department's failure to establish that he was put on notice that his conduct was prohibited and that he intentionally or knowingly violated a rule of the institution. He also contends that the hearing officer's and the administrator's recitations of the evidence supporting the violation and sanctions are inadequate.

After considering the record and the findings of the hearing officer and the administrator, we conclude that Graf's objections to the adequacy of the evidence and the decisions rendered do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We turn to consider whether the regulations and rules give adequate notice that Graf's conduct violated ".701 unauthorized use of . . . telephone." "Due process undoubtedly requires certain minimal standards of specificity in prison regulations . . . ." Meyers v. Alldredge, 492 F.2d 296, 310 (3d Cir. 1974), disapproved on other grounds, Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed. 2d (1974). Here, the Department's regulations and the South Woods State Prison handbook gave Graf adequate notice that his use of the phone was not authorized.

The Department gives inmates notice of the rules they are obligated to follow when they are first confined. That notice is provided through the Department's regulations and inmate handbooks. N.J.A.C. 10A:4-2.1 provides:

(a) At the time of reception into the New Jersey Department of Corrections, each inmate shall receive a copy of the Handbook on Discipline and thereby be advised in writing of his or her rights and responsibilities, the acts and activities which are prohibited, the rules which must be followed and the disciplinary process within the correctional facilities of the Department of Corrections. . . .

(b) At the time of arrival at a correctional facility, each inmate shall receive a copy of the correctional facility Inmate Handbook which contains correctional facility rules, procedures and information about services and programs. The correctional facility Inmate Handbook shall be provided as part of the admission-orientation program in accordance with N.J.A.C. 10A:8. Each inmate shall be required to sign a form acknowledging receipt of the ...


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