June 7, 2012
G.T.G., JR., APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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) (D.N.J. May 6, 2010 (slip op. at 31-32).]
Following the DOC's issuance of its more detailed opinion, in April 2010, G.T.G. Jr. appealed that final decision to us. However, after the appeal was filed, the State moved STU residents to Avenel, where a change in living conditions required a remand and issuance of an additional opinion, which occurred on January 28, 2011.
In its opinion, the DOC noted that there was no constitutional right to a computer. Nonetheless, in the controlled environment of the STU, there were computers available for resident use for educational, vocational/ rehabilitative and therapeutic endeavors. In particular, there were three computers for residential use in the South Unit, where G.T.G. Jr. was housed. Additionally, the DOC noted that "[t]he South Unit Law Library computer is operated 12 hours per week by Resident [G.T.G. Jr.] (Law Librarian)."
However, in light of the presence of institutionally-monitored computers, the DOC had determined that personal computers would not be permitted because they were "likely to compromise the therapeutic environment in that they are easily used to store and view data that may include pornographic pictures and/or videos." Further, access by personal computers to the internet could "open the door for residents to prey on unsuspecting victims and would therefore be a public safety concern. Additionally, because of their data storage capacity, the DOC found that it would be "virtually impossible" for it or the Department of Human Services to monitor stored data effectively. The DOC noted that the STU did not have the staff to monitor personal computers for a growing population of 450 residents. And, if personal computers were permitted at the STU, staff would have to screen each one, as well as all other digital storage devices - an extremely difficult task, given the ability to bury data in a hidden subdirectory. The DOC thus denied G.T.G. Jr.'s request.
On appeal, G.T.G. Jr. again asserts his need for a personal computer for legal, educational and therapeutic purposes, suggesting with respect to the latter, that it would be beneficial for him to have access to pornography so that he can practice avoidance techniques. He states:
Part of the treatment program is relapse prevention and if the residents here are not exposed to situation[s] in a controlled environment then how are they supposed to learn the techniques necessary for dealing with these types of problem[s]?
It is the Appellant's belief that this is why the State created this program, to reduce the risk of re-offending by educating and exposing the residents, in a controlled environment, to situations that they will be exposed to in society and then showing them how to deal with these situations without re-offending.
However, the DOC is preventing this type of treatment from happening by denying the personal computers. Therefore denying the Appellant the right to treatment.
Having carefully reviewed the record on appeal, we are satisfied that the determination of the DOC was not arbitrary or capricious and that it was clearly supported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980); Campbell v. Dept. of Civil Serv., 39 N.J. 556, 562 (1963). In enacting the SVPA, the Legislature recognized that: "Certain individuals who commit sex offenses suffer from mental abnormalities or personality disorders which make them likely to engage in repeat acts of predatory sexual violence if not treated for their mental conditions." N.J.S.A. 30:4-27.25a. It thus provided for the involuntary commitment of such persons, N.J.S.A. 30:4-27.28, and for treatment under the aegis of the Division of Mental Health Services in the Department of Human Services. N.J.S.A. 30:4-27.34c. The Legislature further mandated that: "Such treatment shall be appropriately tailored to address the specific needs of sexually violent predators." Ibid.
In that context, we find reasonable the DOC's policies of forbidding committees from possessing personal computers with internet access, both to ensure the safety of the populace and to preserve the integrity of the therapeutic process. In that regard, we view with a jaundiced eye G.T.G. Jr.'s position that he would receive a therapeutic benefit from the opportunity to access pornography because in that fashion he could practice avoidance techniques.
Moreover, we note that the DOC has made computers and computer training available to its committees, and most especially to G.T.G. Jr., who has been designated as a paralegal and is in charge of the law library in the South Unit. As a result, we find no merit in G.T.G. Jr.'s unsupported argument that he has been denied access either to legal materials or the courts. The history of this litigation refutes that point.
Similarly, we find no merit to G.T.G. Jr.'s claim that the effect of the personal computer ban had been to deny him his due process rights to treatment and access to the courts, and that the ban constitutes the application of a "Penal-logical policy or practice to a civilly committed person." As the District Court found, there is no constitutional right to a computer. Moreover, as we have already discussed, we do not recognize as valid the therapeutic benefit that G.T.G. Jr. finds to exist in computer ownership, and we find no denial of access to the courts to exist. We recognize that civil commitment constitutes a significant deprivation of G.T.G. Jr.'s liberty, but one that is necessary to protect the community at large and to provide care for committees such as G.T.G. Jr. who remain in need of valid treatment for their antisocial attributes. In re Commitment of W.Z., 173 N.J. 109, 125 (2002). In the circumstances presented, and particularly in light of the availability of institutionally-controlled computers, we find no support for the claim that the DOC's policy of barring ownership of personal computers by committees is unreasonably punitive.
We find none of G.T.G. Jr.'s remaining arguments to have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E).