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Boone v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 24, 2010

ANTHONY BOONE, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from a Final Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 22, 2010

Before Judges Carchman and Parrillo.

Appellant Anthony Boone, an inmate presently incarcerated at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC) requiring inmates to use carbon paper in the law library and barring the use of such paper in other areas of the prison. We affirm.

DOC determined that carbon paper posed a security threat, and weapons wrapped in carbon paper could potentially be passed through metal detectors undetected. In response, DOC prohibited carbon paper from the security perimeter of the East Jersey State Prison (EJSP). Appellant claimed that this policy violated the New Jersey administrative code and submitted an inmate remedy system form. DOC denied relief because the policy was necessary for prison security and was being implemented state wide. Appellant administratively appealed this decision, claiming that DOC needed to submit a memo when a policy was adopted state wide, and he requested a copy of the memo. In response, DOC reiterated that the bar was based on security concerns but it did permit access to carbon paper in the law library. This appeal followed.

In his briefs filed in support of this appeal, appellant raises the following issues:

THE STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS HAS PROMULGATED RULES AND REGULATIONS TO GOVERN ALL PRISONS WITHIN THE STATE PURSUANT TO THE NEW JERSEY ADMINISTRATIVE CODE TITLE 10A. AND NO INSTITUTION CAN CHANGE SUCH RULES AND REGULATIONS THAT DISREGARD THE ADMINISTRATIVE PROCEDURE ACT.

A. NEW JERSEY ADMINISTRATIVE CODE TITLE 10A. DEPARTMENT OF CORRECTIONS CHAPTER 6. INMATE ACCESS TO COURTS SUBCHAPTER 2. INMATE LEGAL SERVICES, N.J.A.C. 10A:6-2.9.

B. THE DEPARTMENT HAVE ILLEGALLY IMPLIMENTED [sic] RULES AND REGULATIONS THAT CLEARLY VIOLATES THE REQUIREMENT OF THE NEW JERSEY ADMINISTRATIVE CODE, N.J.A.C. 10A:1-1.2 PROCEDURE TO PETITION FOR RULEMAKING.

C. THE DEPARTMENT HAVE ILLEGALLY IMPLIMENTED [sic] RULES AND REGULATIONS THAT CLEARLY VIOLATES THE REQUIREMENT OF THE NEW JERSEY ADMINISTRATIVE CODE, N.J.A.C. 10A:1-1.5 RULEMAKING ACTIVITY.

D. THE DEPARTMENT HAVE ILLEGALLY IMPLIMENTED [sic] RULES AND REGULATIONS THAT CLEARLY VIOLATES THE REQUIREMENT OF THE NEW JERSEY ADMINISTRATIVE CODE, N.J.A.C. 10A:1-1.6 NOTICE OF A PROPOSED RULE AND OPPORTUNITY TO BE HEARD.

E. THE DEPARTMENT HAVE ILLEGALLY IMPLIMENTED [sic] RULES AND REGULATIONS THAT CLEARLY VIOLATES THE REQUIREMENT OF THE NEW JERSEY ADMINISTRATIVE CODE, N.J.A.C. 10A:1-1.7 CALENDAR OF DEPARTMENTAL RULE ACTIVITY.

F. THE DEPARTMENT KNOWINGLY, PURPOSELY AND INTENTIONALLY VIOLATED ITS OWN RULES AND REGULATION OF EMERGENT RULE EXEMPTION IN ORDER TO AID EAST JERSEY STATE PRISON ILLEGAL, ARBITRARY AND UNCONSTITUTIONAL CLAIMS AND ACTIONS, PURSUANT TO NEW JERSEY ADMINISTRATIVE CODE, N.J.A.C. 10A:1.2.4 RULEMAKING AND EXEMPTION AUTHORITY.

G. THE DEPARTMENT HAVE KNOWINGLY, PURPOSELY, INTENTIONALLY, WILLFULLY AND MALICIOUSLY VIOLATED THE REQUIREMENT OF THE ADMINISTRATIVE PROCEDURE ACT AND SERVE TO VIOLATE DUE PROCESS REQUIRING INTERVENTION PURSUANT TO N.J.S.A. 52:14B-1 TO -12.

POINT ONE

EAST JERSEY STATE PRISON HAS BEGUN TO IMPLIMENT [sic] NEW POLICIES THAT INTERFERE, IMPEDE, AND DENY PRISONERS LEGAL ACCESS TO THE COURT. WHILE TRYING TO DECEIVE THE COURT OF THEIR ACTIONS.

POINT TWO

THE STATE RULES, REGULATIONS, STATUTES AND POLICIES CREATED AN [sic] LIBERTY INTEREST AS WELL AS A FUNDAMENTAL CONSTITUTIONAL RIGHT IN THIS MATTER.

POINT THREE

THE PLAIN LANGUAGE OF THE NEW JERSEY ADMINISTRATIVE CODE IS CLEAR AND UNAMBIGUOUS ON ITS FACE AND ADMITS OF ONLY ONE INTERPRETATION OF THE REQUIREMENTS OF IMPLEMENTING SUCH STATUTE.

Appellant contends that the department violated N.J.A.C. 10A:6-2.9 by prohibiting the use of carbon paper outside of the law library.

Our review of a final agency decision is limited. In re Carter, 191 N.J. 474, 482 (2007). We will reverse a final agency decision only if "it is arbitrary, capricious, or unreasonable, or [if] it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007).

Appellant relies on N.J.A.C. 10A:6-2.9(a), which provides "Legal supplies such as paper, carbon paper, envelopes and pens shall be provided in reasonable amounts as needed to all inmates who request them for legal purposes." We recognize the need to provide the tools necessary to inmates to protect the pursuit of their legal remedies; however, we also recognize the need of DOC to provide a secure penal system that cannot be compromised by even the most common clerical items such as carbon paper. Cf. R.R. v. N.J. Dept of Corr., 404 N.J. Super. 468, 474, 475 (App. div.), certif. denied, 198 N.J. 474 (2009).

We will not question DOC's expertise in determining that carbon paper is a security concern and a legitimate threat to the safety of the prison environment. We recognize that DOC has balanced the needs of its prison population with its security concerns and allows inmates access to carbon paper in the law library.

We find no basis to upset that balance and conclude that DOC's actions were neither arbitrary, capricious or unreasonable. We have carefully reviewed appellant's arguments and conclude that they are without merit. R. 2:11-3(e)(1)(E).

Affirmed.

20100824

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