On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Lihotz and J. N. Harris.
Appellant Naim Jones, who is currently incarcerated in New Jersey State Prison (NJSP), appeals from a July 6, 2009 final agency action of the Department of Corrections (DOC) to continue his placement in the Management Control Unit (MCU). We affirm.
These facts are found in the agency record. While awaiting trial on charges regarding a gang murder, Jones was confined in the Essex County Jail. On May 22, 2006, Corrections Officer (CO) Townes found a cellular phone, concealed in a white sock, plugged into an outlet in Jones' cell. As Jones returned to his cell, CO Townes confiscated the telephone. Jones struck him in the head with a broomstick, shouting "that's for finding the fucking cell phone." CO Townes was taken to the hospital for treatment of the injuries suffered in the assault. Jones was transferred to NJSP as a pre-trial detainee. See N.J.S.A. 30:4-85.1.
In the criminal matter, Jones pleaded guilty to charges of conspiracy to commit homicide, aggravated manslaughter and weapons offenses, including unlawful possession of a machine gun, and is serving a thirteen-year sentence. After review, he was found guilty of the charged disciplinary infraction, *.003 assault upon a law enforcement officer with a weapon in violation of N.J.A.C. 10A:4-4.1(a).
Jones received notice of the decision to confine him to the MCU. A review hearing before the MCU Review Committee was held on June 8, 2007. The committee determined Jones "demonstrated that he [wa]s unwilling and unable to successfully house in a general population housing setting" and was "in need of a more structure that is provided in a [g]eneral [p]opulation housing setting[,]" meeting the criteria for placement, in the MCU. See N.J.A.C. 10A:5-2.5 (stating "an inmate shall be assigned" to the MCU after it is determined he "poses a substantial threat  [t]o the safety of others;  [o]f damage to or destruction of property; or  [o]f interrupting the operation of a State correctional facility").
A routine review hearing to reconsider Jones' placement was held on July 6, 2009. The MCU review committee denied Jones' request for transfer to the general population. Although recognizing that from the date of his transfer to the MCU, Jones had been free of disciplinary infractions, and he had received positive behavioral reports while housed in the structured environment of the MCU and completed modules regarding anger management and behavior modification, the committee nevertheless denied the request for transfer, returning Jones to the MCU.
Jones appealed this decision to the Administrator of the NJSP, who upheld the committee's determination. This appeal followed.
Jones argues his continued MCU placement is arbitrary, capricious and contrary to the requirements of N.J.A.C. 10A:5-2.6. We note that MCU confinement for inmates is not imposed as punishment but is used to prevent a potentially dangerous situation within the prison. It is a housing assignment within NJSP where inmates are housed after a determination by the Special Classification Committee-MCU (Committee) n1 that the inmate poses a substantial threat to the safety of others, of damage to or destruction of property or, of interrupting the operation of a State correctional facility. N.J.A.C. 10A:5-2.5(a). [Taylor v. Beyer, 265 N.J. Super. 345, 346-47 (App. Div. 1993).]
Our review of agency action is limited. The DOC's regulations provide an inmate with the opportunity to challenge an MCU housing designation. See N.J.A.C. 10A:5-2.7 (regarding challenges to initial MCU placement) and N.J.A.C. 10A:5-2.11. (addressing challenges to MCU placements after annual review). If the inmate demonstrates he has participated in rehabilitative programs, complied with all housing rules, refrained from all prohibited acts, and reaffirmed his intention to adhere to all behavioral rules and regulations, transfer from the MCU will be considered. N.J.A.C. 10A:5-2.11(b) and (c). In such instance the DOC must demonstrate through substantial evidence, including behavior, correctional facility adjustment, and disciplinary history that the inmate continues to pose an identifiable threat:
1. To the safety of others;
2. Of damage to, or destruction of ...