On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 7, 2010 - Remanded Resubmitted December 22, 2010 - Decided Before Judges Grall and Alvarez.
Edwin Ortiz is an inmate currently incarcerated at Northern State Prison and serving a thirty-year sentence that was imposed in December 1987 for murder. Ortiz has been identified as a member of a Security Threat Group (STG), the Latin Kings. See N.J.A.C. 10A:5-1.3; N.J.A.C. 10A:5-6.5. This is Ortiz's second appeal from his designation as a member of the Latin Kings, and it returns to us for decision following a remand. Ortiz v. N.J. Dept. of Corrs., No. A-5837-08 (App. Div. Oct. 6, 2010) (Ortiz II).
Ortiz's first appeal was from the denial of his request for an interview to dispute his classification as a member of a STG. We dismissed that appeal due to Ortiz's failure to exhaust administrative remedies provided by the Department of Corrections (Department), but because the Department had not responded to his interview request "in the time or manner provided in" N.J.A.C. 10A:1-4.5(e), we "direct[ed] the Department to consider" an administrative appeal pursuant to N.J.A.C. 10A:4-6 if Ortiz pursued that remedy. Ortiz v. N.J. Dept. of Corrs., 406 N.J. Super. 63, 65, 70 (App. Div. 2009) (Ortiz I).
Our decision dismissing the first appeal was filed on March 20, 2009, and Ortiz filed an administrative appeal on March 27, 2009. The Department took action to address the administrative appeal but did not complete the process. On April 1, 2009, the Assistant Chief Investigator of the Special Investigations Division (SID) submitted a memorandum to Melinda Haley, Special Legal Advisor to the Department of Corrections. The SID memorandum was prepared by Principal Investigator Wayne A. Robbins on April 1, 2009.
Robbins' report states that SID identified Ortiz as a member of the Latin Kings on May 14, 1997, and that the identification was based on correspondence from three individuals that was found in Ortiz's possession and seized on that date. Robbins' report also specifies the contents of the letters that led SID to conclude that the writers and Ortiz were members of the Latin Kings. Robbins further indicates that SID identified Ortiz as a member of the Latin Kings a second time on June 25, 2007. That identification was based on the correspondence and on Ortiz's admission of his affiliation. Robbins' report acknowledges that the Latin Kings were not designated as a STG until December 30, 1997.*fn1 The underlying correspondence and the SID form memorializing the June 25, 1997 finding by SID are part of the record.
In Ortiz II, we did not reach the merits of Ortiz's appeal because the Department had not complied with N.J.A.C. 10A:1-4.6(c). Pursuant to that regulation, the prison administrator or a designee must review an administrative appeal and provide "a decision or finding to the inmate within ten business days of receipt." Ortiz II, supra, slip op. at 4. Ortiz did not receive a response to his administrative appeal; nothing in this record, even as developed on remand, suggests that Ortiz saw Robbins' report before he filed this appeal. Accordingly, we remanded. Id. at 4-5.
Despite our decision in Ortiz II, the Department continues to characterize Robbins' report as "a response to the administrative appeal." That report is not a response that conforms with N.J.A.C. 10:4-6(c) because it was not given to Ortiz. To dispel any confusion on the Department's part about the scope of its obligation under N.J.A.C. 10A:4-6(c), we restate our holding in Ortiz II. The Department does not comply with its own regulation governing administrative appeals unless it gives the inmate a response. Although Ortiz II is not a published opinion, the Department, as a party to Ortiz II, is bound by Ortiz II not only in this case but in all others. See Raymond v. N.J. State Parole Bd., 221 N.J. Super. 381, 384-85 (App. Div. 1987).
In any event, despite the Department's reluctance to acknowledge that N.J.A.C. 10A:4-6(c) requires a response, on remand the Department substantially, although not timely, complied with N.J.A.C. 10A:1-4.6(c) and our mandate. The administrator of Northern State Prison has now issued a response dated October 7, 2010 addressed to Ortiz. In it, the administrator states:
This missive is in response to your Request System and Remedy Form Appeal logged in as case number 07-08-386 by East Jersey State Prison staff.
Please be advised that after reviewing the memorandum prepared by [SID] dated April 1, 2009, it is quite evident that your STG designation is appropriate and justified. Attached is the copy of the memorandum from [SID].
Further, in your Appeal, you requested for [sic] an in-person interview. However, the information from [SID] provided enough detail supporting your STG designation in accordance to [sic] the New Jersey Administrative ...