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George H. Bender v. New Jersey Department of Corrections


June 11, 2012


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted: May 23, 2012

Before Judges Axelrad and Sapp-Peterson.

George Bender, who is serving a sentence at the Adult Diagnostic & Treatment Center (ADTC) in Avenel appeals from an April 21, 2010 decision of the Institutional Classification Committee (ICC) that he claims improperly removed his seven-day a week work schedule and assigned him to work five days per week.*fn1 Bender seeks compensation for days he worked a seven-day work week, and presumably seeks reinstatement of his seven-day work schedule. We affirm.

Bender's "Work Assignment History" reflects that the ICC assigned him to a job as a Library Worker in the ADTC General Library beginning on July 29, 2003. Pursuant to N.J.S.A. 30:4-92 and N.J.A.C. 10A:9-5.1(b)(1), an inmate is entitled to work "consistent with [his or her] health, strength and mental capacity and shall receive such compensation therefor[.]" Compensation may be in the form of pay or credit against the inmate's sentence but "shall not exceed one day for each five days of productive occupation[.]" N.J.A.C. 10A:9-5.1(b)(2). See also Merola v. Dep't of Corrs., 285 N.J. Super. 501, 509 (App. Div. l995), certif. denied, 143 N.J. 484 (1996). The position pays four dollars per day for work and is normally for five days per week.

On March 26, 2008, the ICC approved a modification to Bender's work assignment, retroactive to January 31, 2008, whereby it would be deemed a seven-day assignment rather than a five-day assignment. On April 21, 2010, the ICC conducted an annual review of Bender's classification status and changed his job assignment back to a five-day one. While the ICC's decision was made retroactive to March l, 2010, Bender was paid for working a seven-day job for the month of March, which he does not dispute.

Bender unsuccessfully challenged the ICC's action, arguing, in part, that it violated his state and federal constitutional rights under the ex post facto clause and equal protection clause guarantees, his state-created rights to his work credits, and a liberty interest in his sentence being unconstitutionally extended.

In this appeal, Bender argues he has a state-created interest in being compensated for days he was required to work because New Jersey state law does not permit the use of "slave labor" in the prison system. He emphasizes that he is not asserting he has a liberty interest in a particular job assignment. Specifically, Bender challenges "the actions of the [ICC] and ADTC administration to deny [him] work credits and pay for the seven days-a-week he worked under the explicit direction and authority of DOC staff (from April 1 to April 21, 2010 and from October 1, 2010 to the present)." He also challeng[es] the ICC decision of 4/21/10 to terminate his 7-day work week designation under which DOC officials subsequently refused to pay [him] or award him work credits for the additional days he worked between April 21, 2010 and October 21, 2010 as was necessary to fulfill his job obligations, which were not reduced or modified consistent with the reduction of his work week.

Bender also argues the DOC's actions were retaliatory in nature for the exercise of his constitutional rights. According to Bender, he and other seven-day workers had their schedules reduced to five days in spring 2010 and the ADTC administration subsequently restored nearly all of the previously eliminated seven-day positions and added over one hundred additional positions. However, presumably because Bender filed an appeal, the administration did not restore his seven-day a week position and refused to compensate him for work already performed prior to the April 21, 2010 ICC decision and for work he performed after he was directed to work seven days per week starting October 1, 2010.

Based on our review of the record, including Bender's supplemental submissions that we permitted by order, and our limited standard of review, we are not persuaded by any of Bender's arguments and affirm. He has not demonstrated that the DOC's action was arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. See In re Taylor, 158 N.J. 644, 657 (l999) (stating that a court must uphold an agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusion); see also Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Bender's trust account statement reflects that on May 11, 2010, he was paid $84 for working 21 days from April l through April 30. Bender has not presented competent evidence demonstrating he was directed by authorized ADTC representatives to work in excess of five days per week after April 21, 2010 or time sheets evidencing the additional days of work after that date for which he was not compensated. Bender's claims of retaliation are vague and speculative.


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