February 24, 2011
RONALD ROBBINS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a final decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2010 -- Decided
Before Judges Rodriguez and Miniman.
Appellant Ronald Robbins, an inmate currently incarcerated at East Jersey State Prison in Rahway, appeals from the March 16, 2009 final administrative decision of the Department of Corrections (DOC), upholding the disciplinary sanctions imposed for possession of carbon paper, which is a violation of N.J.A.C. 10A:4-4.1(a) .210. The sanction was ten days detention and confiscation of his carbon paper. We affirm.
On March 9, 2009, Senior Corrections Officer Zwolinski found one folder containing thirty-nine sheets of carbon paper in Robbins's cell underneath his mattress. Sergeant Erven investigated the matter. Robbins stated to the Sergeant that he was allowed to have carbon paper to do legal work. Robbins was charged with the .210 disciplinary charge.
Two days after the offense, Disciplinary Hearing Officer Meehan conducted a hearing. Robbins pled not guilty, but did not request the assistance of counsel substitute, nor witnesses to testify on his behalf. Robbins made the following statement on his behalf: "I had carbon paper for my legal work because I don't have a typewriter ribbon."
Meehan reviewed a January 20, 2009 letter from Antonio Campos, the Director of Custody Operations at East Jersey State Prison, to the inmate population. In pertinent part, the letter indicated as follows:
Subject: Carbon paper
Effective immediately, carbon paper will no longer be permitted inside the security perimeter of the facility. Any carbon paper discovered in the possession of the inmate population shall be immediately confiscated. Inmates found in possession of carbon paper after February 1, 2009 will be charged and the contraband confiscated
Any questions concerning this memo may be addressed to this office. Thus, the hearing officer found Robbins guilty of the .210 charge.
Robbins appealed administratively. Assistant
Superintendent Davis upheld the findings and sanctions.
On appeal, Robbins contends:
THE [DOC] VIOLATED ITS OWN ADMINISTRATIVE CODE BY CIRCUMVENTING ITS OWN RULEMAKING PROCEDURES, AND GIVING [ROBBINS] A CHARGE FOR BREAKING A RULE THAT WAS ARBITRARY, CAPRICIOUS AND UNREASONABLE.
Thus, Robbins does not challenge the fact that he engaged in the conduct charged, i.e., possession of carbon paper within the security perimeter of the facility. Rather, he argues that such possession was not prohibited because the DOC decided to include carbon paper among the items prohibited by .210 without engaging in rulemaking. We reject this collateral attack on a disciplinary regulation in the guise of a defense.*fn1
The, "Administrative Procedures Act" (APA), N.J.S.A. 52:14B-1 to -15, governs administrative practice procedure. The rule-making requirements for the DOC which include notice and a petition to the DOC, are set out in N.J.A.C. 10A:1-1.2. However, N.J.S.A. 52:14B-2(e) defines an administrative rule as follows:
"Administrative rule" or "rule," when not otherwise modified, means each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intraagency and interagency statements; and (3) agency decisions and findings in contested cases. (emphasis added).
Chapter 10A of the Administrative Code regulates the DOC. The provision that governs inmate discipline lists the prohibited acts that make an inmate violator subject to discipline. See N.J.A.C. 10A:4-4.1. One of those acts is .210, which prohibits:
possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels.
We note that the items or "things" not authorized are not listed as part of the regulation. But, N.J.A.C. 10A:4-2.1, titled "Notification of inmates about rules and regulations" provides in part:
[N.J.A.C. 10A:4-4.1 .210.]
(c) All changes in disciplinary rules shall be posted in housing units and other areas of the correctional facility and incorporated into the next revision of the Handbook on Discipline and when appropriate, in the correctional facility Inmate Handbook.
In addition, N.J.A.C. 10A:4-2.2 provides:
The Administrator of the correctional facility shall be responsible for maintaining an ongoing rule review process to ensure that the rules are current and appropriate.
From those authorities, we conclude that N.J.A.C. 40A:4- 4.1(a) .210 is clearly a regulation "concerning the internal management or discipline of" the DOC. Therefore, it is not an "administrative rule" within the meaning of the APA pursuant to N.J.S.A. 52:14B-2(e).
Moreover, it is clear that the Administrator of a correctional facility has the right, outside of the rulemaking process, to review the rules periodically. Here, the rule was modified by including an item within the prohibition of .210.
We hold that such inclusion is not an amendment to a rule, but actually an exercise of authority by the superintendent. In short, this is an action less than a modification that is not subject to rule-making.
Lastly, we note that the January 20, 2009 announcement by Director Campo does not prohibit use or possession of carbon paper throughout the facility, but only "inside its security perimeter." Robbins may still use carbon paper at the law library, as permitted by N.J.A.C. 10A:6-2.9, which provides:
(a) 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. All inmates may be required to justify the need for unusually large amounts of legal supplies.
(b) Frequently used legal forms and applications shall be made available through the inmate law library.
(c) Typewriters and/or word processors, to the extent that they are available and/or operate, may be provided for inmate use in the inmate law library area in Close Custody Units.