On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
Anthony Hardaway, an inmate at the East Jersey State Prison (EJSP), Rahway, appeals from the April 20, 2011 final decision of the Department of Corrections (DOC) continuing his custody level as gang-minimum.
Defendant is serving a mandatory thirty-year sentence for murder, without the possibility of parole, and has several months left on his sentence. Defendant submitted a Remedy Systems Form seeking a reduction in custody status from gang-minimum to full-minimum. His request was denied "due to the nature of [his] current offense," citing N.J.A.C. 10A:9-4.5. Defendant appealed and sought an exemption under N.J.A.C. 10A:1-2.4 from strict compliance. He contended that the denial of full-minimum status caused him undue hardship in his attempt to prepare himself for reentering society. He requested full-minimum custody status "inside-only." He argued that this was appropriate since he did not want to transfer to another prison in order to pursue his full-minimum custody status.
The Institutional Classification Committee (ICC) denied his request, stating that there is "no inside-only" full-minimum status at EJSP. He wrote to EJSP Acting Administrator seeking reconsideration and also wrote to the Commissioner seeking review of his administrative appeal. On March 30, 2011, the ICC conducted a second review and again denied his request. On April 19, 2011, defendant wrote a second letter to the Commissioner stating that he was appealing the final agency decision rendered on March 30, 2011 to us.
On April 20, 2011, the ICC issued its final decision explaining that EJSP has no full-minimum work opportunity inside the facility and that gang-minimum receives the same full credits as full-minimum. They also explained that full-minimum inmates do not house inside the facility because of interaction with the public. This appeal followed.
Defendant raises the following point on appeal:
THE FINAL AGENCY DECISION TO DENY HARDAWAY FULL-MINIMUM CUSTODY STATUS SOLELY BECAUSE OF THE NATURE OF HIS OFFENSE VIOLATES THE HOLDING IN SMITH v. DOC, 346 N.J. SUPER. 24 (APP. DIV. 2001) AND SHOULD BE REVERSED AND REMANDED FOR A PROPER STATUS REVIEW.
Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). We have noted in the past that the Legislature has provided for the broad exercise of the DOC's discretion in all matters regarding the administration of a prison facility. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999).
Neither the United States Constitution, nor our Constitution, recognizes a right to a less restrictive custody status. Smith v. N.J. Dep't. of Corr., 346 N.J. Super. 24, 29 (App. Div. 2001) (citing Jenkins v. Fauver, 108 N.J. 239, 249 (1987)). As we further observed:
[U]nder State law, the Commissioner of the Department of Corrections has complete discretion in determining an inmate's place of confinement, N.J.S.A. 30:4-91.2. See Hluchan v. Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979) (observing that inmates have no liberty right to be assigned to any particular custody level); . . . . Classification of prisoners and the decision as to what privileges they will receive rests solely within the discretion of the Commissioner of the Department of Corrections. N.J.S.A. 30:1B-6; N.J.S.A. 30:4-91.1. [Id. at 29-30 (citation and quotations omitted).]
The New Jersey State Prison system is maintained and operated by the DOC, N.J.S.A. 30:1B-8, which is headed by the Commissioner of Corrections. N.J.S.A. 30:1B-4. Classification and transfer of state prisoners is confined to the Commissioner's sole discretion. N.J.S.A. 30:1B-6; 30-1B-9; 30:4-91.1; 30:4-91.2; 30:4-91.3; and 30:4-92. Pursuant to his authority, the Commissioner ...