On appeal from New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2012
Before Judges Payne and Simonelli.
In a continuation of appellant, G.T.G. Jr.'s, lengthy attempts, as a civilly-committed sexually violent predator, to obtain a personal computer for alleged educational, therapeutic and legal purposes, he appeals from a January 28, 2011 final decision of the Department of Corrections (DOC) denying authorization for a computer purchase, challenging that decision as arbitrary and capricious, and on Fourteenth Amendment grounds. We affirm.
G.T.G. Jr. pled guilty in 1986 to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, first-degree kidnapping, N.J.S.A. 2C:13-1b, second-degree aggravated assault, N.J.S.A. 12-1b(1), third-degree weapons possession (a knife), N.J.S.A. 2C:39-4d, and first-degree robbery, N.J.S.A. 2C:15-1, as well as to a violation of parole, and was sentenced to thirty years in custody, with fifteen years' parole ineligibility.*fn1 He was found to be eligible for treatment at the Adult Diagnostic Treatment Center. At the time of his projected release from custody, G.T.G. Jr. was found to be a sexually violent predator, subject to the provisions of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and he was civilly committed on August 22, 2005 to the Special Treatment Unit (STU).
Despite the prohibition on possession of "[c]omputers (PCs, notebooks, and laptops)" contained in the Residents' Guide to the STU, furnished to G.T.G. Jr. upon his admission to that facility, on January 22, 2007, G.T.G. Jr. requested permission to purchase a personal computer, allegedly to facilitate completion of his school and legal work. The request was denied on February 6, 2007, and G.T.G. Jr. appealed. His appeal was consolidated with a similar appeal by SVPA committee [R.B.]. However, because the reasons for denial of authorization for the requested computer purchases were not given, we remanded the matter to the DOC in August 2008 to enable it to issue formal decisions in the two cases with supporting statements of reasons. On September 3, 2009, the DOC issued its decision, again denying G.T.G. Jr.'s request for a computer with internet access.
On September 28, 2009, G.T.G. Jr. filed a civil lawsuit in the United States District Court for the District of New Jersey, raising a variety of issues including the denial of his request to possess a personal computer, which he characterized as a deprivation of his Fourteenth Amendment rights. On May 6, 2010, the court issued an opinion dismissing the bulk of G.T.G. Jr.'s claims. In analyzing G.T.G. Jr.'s computer-related claim, the court held:
As to having a personal computer and Internet access, it would appear that [G.T.G. Jr.] cannot support a claim for relief. [G.T.G. Jr.] is unable to demonstrate a Fourteenth Amendment due process violation unless he can identify "a liberty or property interest protected by the constitution" of which he was deprived. Wright [v. Riveland], 219 F.3d [905,] 913 [(9th Cir. 2000)]. Due process rights to life, liberty or property can arise directly from the Constitution or can be created by state law. Here, [G.T.G. Jr.] alleges no constitutional right to possess a personal computer at the STU and alleges no state-created right to which due process attaches. Thus, [G.T.G. Jr.] has failed to allege a Fourteenth Amendment substantive due process claim pertaining to the restriction on computer ownership. [Ashcroft v.] Iqbal, [556 U.S. 662, 677,] 129 S. Ct. [1937,] 1949-50, [173 L. Ed. 2d 868, 883 (2009)]; [Bell Atl. Co. v.] Twombly, 550 U.S. at 555-57, 570, [127 S. Ct. 1955, 1964-1966, 1974, 167 L. Ed. 2d 929, 940-941, 949 (2007)]; . . . .
[G.T.G. Jr.] also fails to state a claim for violation of his right to equal protection under the law with regard to the personal computer restriction because he fails to allege that he is a member of an identifiable class, that he was intentionally treated differently from others similarly situated, and that there is no rational basis for the difference in treatment. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, [105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313, 319] (1985). To assert a valid equal protection claim, [G.T.G. Jr.] must allege:
(1) he is a member of an identifiable class; (2) sufficient facts to show defendants treated him differently from other similarly situated persons; and (3) defendants acted with an intent or purpose to discriminate against him based on his membership in the identifiable class. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003).
[G.T.G. Jr.] cannot demonstrate any of these factors. Therefore. the court will dismiss this claim. [[G.T.G. Jr.] v. Corzine, No. 09-4983 (DMC) ...