July 21, 2011
EDWIN ORTIZ, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 4, 2011
Before Judges A.A. Rodriguez and LeWinn.
In September 2007, while confined at East Jersey State Prison (EJSP), inmate Edwin Ortiz filed a claim for personal property lost, damaged or destroyed during a search of his cell. The inmate was held out of his cell for approximately seven hours due to a prison shut-down following a riot. He claimed that upon returning to his cell he noticed some of his personalty strewn about and other items missing or damaged. He completed and submitted the requisite Form 943-I in which he identified thirteen items ranging in value from $250 (a Sony radio) to $2.50 (a plastic bowl).
On June 11, 2008, Lieutenant R. Hampe issued a report of his investigation of the inmate's claim, stating:
Although [the inmate] provided documentation for some of the items, I could not find any records or reports to support the seizure of these numerous items. A seizure of items this substantial would not have gone unnoticed and would have been documented. I could not find any merit to this claim to support it and recommend it be denied.
On March 31, 2009, the Associate Administrator of EJSP notified the inmate that his claim had been denied, stating that the "investigation revealed that [t]here is no record of seizure to support your claim."
The inmate appealed that decision to the EJSP Administrator on April 22, 2009. He asserted that his "claim was not based on seizure, but rather it was based on damage to [his] personal property, including personal property taken from [his] cell without due process of law." The inmate did not identify which property had been damaged and which was missing.
On April 24, 2009, the Administrator denied the inmate's appeal for the reasons stated in the March 31 decision of the Assistant Administrator. The denial was also based on N.J.A.C. 10A:2-6.2(a)(5), which requires an inmate to supply "sufficient information . . ., including proper receipts, witnesses and investigative reports[.]"
The inmate appealed and while his appeal was pending the Department of Corrections (DOC) moved for a remand for further investigation of the inmate's claim. We granted that motion on August 26, 2010.*fn1
On remand, the inmate was again interviewed in an effort to determine which items were damaged and which were missing. On October 20, 2010, Chief Antonio Campos, who appears to be the Director of Custody Operations at EJSP, submitted his investigation report to the EJSP Claims Committee. The report indicates that, in addition to being interviewed, the inmate was given a typed questionnaire to complete, which is quoted in the report as follows:
Q: List all damaged items. A: Sony headphones, night lamp, water bottles, sneakers, gym shorts, fan, surge protector, radio, hot pot, stapler, mirror, plastic bowl, scissors.
Q: List the damage done to each item. A: Items were damaged beyond repair. Other items were never returned.
Q: What is the disposition of the damaged items? A: Disposed. Items were never returned.
Campos also reviewed the "[p]roperty [c]laim package from the original claim [and the] [i]nmate's [s]tatements." His report concluded:
The inmate was also asked to provide any receipts for repairs made to any of the items and proof of ownership. The inmate submitted no receipts for any repaired items but did attach receipts to prove ownership of some of the items in question. These are the same receipts that were submitted with the original claim.
The inmate listed the same items that were in his original claim with no additions. The original claim stated that the listed items were missing, not damaged, and that "other" items were damaged. The inmate has failed to submit a list of any other items that were "damaged." In addition, the inmate was unable to specify the damage and indicated that some of the items were "never returned." This last claim would make it impossible for him to know if they were damaged at all. The inmate could not produce any of the "damaged" items and stated that they were "disposed" but failed to indicate which items he was referring to.
Based upon the inmate's inability "to provide any additional evidence that any of the items were damaged or even that there were other items[,]" his claim was again denied.
On appeal, the inmate contends that the DOC "did not comply with regulations regarding its duty to investigate [his] claim, thus rendering its decision arbitrary, capricious and unreasonable." Having reviewed this contention in light of the record and the applicable regulations, we are satisfied that it is without merit.
The critical regulation here is N.J.A.C. 10A:2-6.2(a)(5), which, as noted, imposes upon the inmate the burden to supply "sufficient information" to enable a meaningful investigation. Here, the inmate presented receipts; he did not, however, identify any witnesses or produce any reports of seizure of his property. Moreover, the inmate made contradictory claims as to whether property had been damaged or stolen. It is impossible to determine from either his original claim form or the questionnaire he completed in the investigation on remand, which, if any property, is missing and which is damaged; with respect to allegedly damaged property, the inmate provided no evidence of any such damage nor of efforts to make repairs.
In short, the inmate himself was incapable of providing the DOC investigators with a clear statement of his loss. He was given at least two opportunities to do so, in each of the investigations, but failed to comply. Under the circumstances, we are satisfied that the DOC conducted the best investigation it could, considering the lack of witnesses, supporting documentation and, most importantly, clarity from the inmate as to the precise nature and extent of his loss.
N.J.A.C. 10A:2-6.1(a) provides that an inmate must file a claim for lost, damaged or destroyed property by submitting Form 943-I; the filing of that form triggers the following procedures:
(b) The Administrator or designee shall submit Form 943-I to the Director of Custody Operations or designee for investigation and preparation of a report. The investigation conducted by the Director of Custody Operations or designee shall consist of, but not be limited to:
1. Obtaining statements from the inmate, witnesses and correctional facility staff; and
2. Verifying that the inmate was authorized to have and did in fact, possess the personal property named in the claim.
3. Verification of possession of lost, damaged or destroyed personal property may be made by review of applicable documentation . . . maintained by the facility[.] [N.J.A.C. 10A:2-6.1(b).]
We are satisfied the DOC complied with the obligations imposed upon it by this regulation, if not completely in the first instance in 2009, certainly in the October 2010 re-opened investigation conducted pursuant to our remand.
This case is distinguishable from Barnes v. Sherrer, 401 N.J. Super. 172 (App. Div. 2008), upon which the inmate relies here. In that case, there was no record that the DOC had undertaken any investigation of the inmate's claim for lost or destroyed property. Id. at 179. We, therefore, remanded with instructions that the agency comply with N.J.A.C. 10A:2-6.1. Id. at 180.
Here, the DOC conducted the investigation required by that administrative regulation, as evidenced by the October 2010 report from Campos to the EJSP Claims Committee. The fact that no witnesses may have been available in 2010 to interview about a 2007 claim does not render the DOC's actions deficient. As noted, the inmate's own participation hindered a proper investigation, as he provided contradictory and, with respect to allegedly damaged property, unsupported claims.
In sum, we discern no basis to conclude that the DOC's decision was arbitrary, capricious or unsupported by credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The inmate was accorded all due process rights mandated by the pertinent regulations.