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Graf v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 correctional facility Inmate Handbook. A refusal by the inmate to sign shall be noted on the form by the issuing staff member.

Pursuant to N.J.A.C. 10A:18-8.1:

(a) Designated staff at each correctional facility shall develop and implement written procedures, which provide inmates with reasonable and equitable access to public telephones. These procedures shall specify:

1. Hours of telephone availability;

2. Maximum length of telephone calls; and

3. Any limitation on telephone calls. [(Emphasis added).]

The notice of these rules governing telephone use is to be given in the "Inmate Handbook," and notice of amendments to the rules is to be given by posting until such time as the amendment is incorporated in the handbook. N.J.A.C. 10A:18-8.2.

The regulations also give notice that telephone use is highly regulated. Pursuant to N.J.A.C. 10A:18-8.3, inmates are advised that, with exceptions not applicable here, "[a]ll inmate telephone calls may be monitored and recorded." "Outgoing telephone calls made by inmates shall be collect calls, or paid for by other authorized methods, such as an approved debit calling system . . . ." N.J.A.C. 10A:18-8.4. There are special provisions for emergency calls, N.J.A.C. 10A:18-8.5; "legal telephone calls," N.J.A.C. 10A:18-8.6; and calls "between incarcerated relatives," N.J.A.C. 10A:18-8.7. Moreover, calls placed by inmates in close custody units are subject to separate restrictions. N.J.A.C. 10A:18-8.9.

The South Woods State Prison inmate handbook includes specific rules governing telephone use that are pertinent here:

A. PUBLIC TELEPHONE IN HOUSING UNITS:

1. Public telephones are available in each housing unit. . . . Each inmate will be assigned an "Inmate Personal identification Number" (IPIN) that must be used when calling out of the Institution.

2. After arrival at South Wood State Prison, inmates will receive the initial IPIN Form (295-) at New Main Orientation. Each inmate is to provide a list of up to ten (10) family/friends with their complete addresses, relationship, and telephone numbers . . . ."

5. The "PHONE ROOM" will send back the pink copy of the form to the inmate once the eligible/permitted telephone numbers have been entered into their database. . . . .

6. FOR ALL CALLS: Inmates must dial their IPIN, then "O", followed by the Area Code and the eligible/permitted telephone number from the IPIN List. [(Emphasis is shown above as it appears in the inmate handbook).]

The hearing officer focused on paragraph six. Read in isolation, as Graf reads it, paragraph six might be understood to provide direction on how to reach an outside line by using an IPIN. Read in context, however, it is clear that an inmate's authorization to make telephone calls is limited to calls made with the inmate's IPIN and to a person who is on the inmate's "eligible/permitted" list. Without doubt, the rule would be clearer if it included a direct prohibition against use of another's IPIN, but Graf was charged with "unauthorized use." There is nothing in the rule that suggests that Graf could use the phone as he did - to make a call another inmate was unable to make, presumably because of restrictions on phone use accompanying his detention, by using that inmate's IPIN to make a call to a person on that inmate's "eligible/permitted" list.

The Department is not required to demonstrate that an inmate knows his or her use of the telephone is unauthorized or that the inmate intended to use the phone in an unauthorized manner. An inmate has a "right to be informed of the rules, procedures and schedules concerning the operation of the correctional facility." N.J.A.C. 10A:4-3.1(a)2; see N.J.S.A. 2C:2-4 (describing the narrow circumstances under which ignorance of the law is a defense to a prosecution for crime). The scope of Graf's authorization to use the telephone was quite clear and quite limited, and the evidence was more than adequate to establish that he exceeded his authorization.

Affirmed.

20100804

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