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Kevin Conley v. New Jersey Department of Corrections

October 11, 2011


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted September 27, 2011

Before Judges Simonelli and Hayden.

Kevin Conley, an inmate serving a life sentence for murder, aggravated sexual assault, armed burglary, and possession of a weapon for an unlawful purpose, is currently incarcerated at New Jersey State Prison (NJSP). Conley appeals from the April 6, 2010 final decision of the Department of Corrections (DOC), which denied his request for a free copy of a court decision from the prison law library. Having considered the record on appeal and the applicable law, we affirm.

We discern the following facts from the record. On March 1, 2010, Conley submitted a written request to the NJSP law library for a copy of the United States Supreme Court's opinion in Citizens United v. FEC, __U.S.__, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), a lengthy campaign finance decision. A library employee declined to process the request due to staffing and computer updating problems. Conley filed an Administrative Remedy request that day, complaining of being denied access to court decisions.

On March 8, 2010, an NJSP employee offered to allow Conley to read the opinion in the library or to pay to have it copied so he could take it to his cell. Conley refused the offer, citing a longstanding NJSP policy of providing inmates free copies of court decisions. Shortly thereafter, NJSP denied Conley's complaint in writing, on the basis that the opinion had been made available but the inmate refused to read it in the library or pay for a copy. On March 28, 2010, Conley appealed the denial, arguing that he was denied the right to borrow and read at his leisure in his cell "for free, any case via the Legal Access Plan and p. 88 of [the Inmate] Handbook."

On April 6, 2010, an NJSP administrator denied Conley's appeal based upon his refusal to read the document in the library or pay for a copy. This appeal followed.

Our role in reviewing an agency decision is limited. In re Stallworth, ___ N.J. ___, ____ (2011) (slip op. at 23) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005)(citations omitted). "The burden of demonstrating that the agency action was arbitrary, capricious or unreasonable rests on the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

On appeal Conley contends, "The DOC abused its discretion by refusing to let the appellant borrow a court opinion from the law library at N.J. State Prison pursuant to long established borrowing policy." He also contends that the legal material policy at page 88 of the NJSP Inmate Handbook provides for "borrowing of photocopies for all legal reference materials, without cost for [fourteen] days[,]" and that the violation of this policy amounts to criminal official misconduct under N.J.S.A. 2C:30-2. The DOC responds that there was no violation of the applicable regulations or of the Inmate Handbook.

N.J.A.C. 10A:6-2.5(a), provides that: "The Department of Corrections shall provide photocopies of legal material, as that term is defined in N.J.A.C. 10A:1-2.2 to inmates at a rate of $.10 per page, in accordance with the guidelines and limitations set forth in this subchapter." Payment for photocopying can be made directly from an inmate's account. N.J.A.C. 10A:6-2.7(h). An exception to the copying fee is made for indigent inmates, who may obtain free photocopies of legal material related to pending litigation involving the inmate. N.J.A.C. 10A:6-2.6(b).

Conley fails to present any cogent reason why he should not pay the photocopy fee. Conley has not asserted that he is indigent. Thus, N.J.A.C. 10A:6-2.7(b), which clearly and unambiguously requires inmates to pay for copies of all legal material, applied to Conley's copying request.

Further, the Inmate Handbook does not support Conley's claim that he is entitled to a free copy of the decision. The Handbook merely permits him to borrow a photocopy of the decision for fourteen days. Nothing in this policy suggests that the legal material ...

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