October 17, 2012
PHILLIP A. DIXON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Yannotti and Hoffman.
Phillip A. Dixon (Dixon), an inmate incarcerated at New Jersey State Prison (NJSP), appeals from a final determination of the Department of Corrections (DOC), removing him from the position of Secretary of the NJSP's chapter of the National Association for the Advancement of Colored People (NAACP). We affirm.
On October 22, 2010, Senior Corrections Officer D. Shaw searched Dixon's cell and found twenty-seven electrical power cords. According to Shaw, the ends of the cords had been removed and metal parts were missing. Dixon was charged with disciplinary infraction .210, "possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels[,]" contrary to N.J.A.C. 10A:4-4.1.
A hearing on the charge took place on October 25, 2010. Dixon did not deny that he possessed the cords. He maintained, however, that he "paid for them" and they were used as antenna wire for television sets and radios. The hearing officer found Dixon guilty of the charge, noting that Dixon had possessed an excessive number of cords, the cords had been improperly altered, and they were not connected in a manner indicating they were used as antenna wire.
The hearing officer imposed the following sanctions: ten days of detention, ninety days of administrative segregation, and the loss of sixty days of commutation time. The loss of the commutation time was suspended. Dixon filed an administrative appeal. He sought leniency and stated, among other things, that the cords had been modified for use as a television antenna. On November 5, 2010, the Assistant Superintendent of NJSP upheld the hearing officer's decision but modified the sanctions by suspending the ninety days of administrative segregation imposed by the hearing officer.
At the time Dixon incurred the .210 disciplinary charge, he was serving as Secretary of the NJSP chapter of the NAACP. On February 1, 2011, the Administrator of NJSP informed Dixon that he was being removed from his position as Secretary due to the October 2010 disciplinary charge. Dixon wrote to the Administrator, seeking reinstatement to his position. He asserted, among other things, that his removal from the position was not warranted because he had only been disciplined for a "minor" infraction.
The Administrator responded in a memo dated February 8, 2011. He stated that the infraction was not "minor." The Administrator said that Dixon had never provided a good explanation for possessing twenty-seven "electrical cords in an ice bag in [his] cell." The Administrator also said that the bylaws for the NJSP chapter of the NAACP provided that "all candidates running for an elective office" in the organization had to be "pre-approved by the Administrator prior to having their names added to the ballot."
The Administrator additionally stated that when he reviewed: the candidates after the election I noted that you and another inmate just recently had institutional infractions and had won seats on a committee. I therefore made the decision to disqualify you and any one else who had institutional infractions. With all the good that this organization had done in the past and what it can do in the future, I felt that the organization needed to have an executive team that had good institutional records and can follow the rules and regulations. To hold a responsible position within the organization one needs to set an example and lead from the front and have an excellent disciplinary track record.
The Administrator added that he believed it was in the best interest of the institution and the organization if Dixon did not hold an elective office for at least one year prior to the next election, which was to be held in late 2011. The Administrator said that Dixon could run for a position on the NAACP board at the end of 2011, if he had a "charge free year[.]" This appeal followed.
Appellate courts have a "limited role" to play when reviewing final determinations of administrative agencies. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). We will not reverse an agency's decision unless it is shown to be "'arbitrary, capricious, or unreasonable[.]'" Ibid. (quoting Henry, supra, 81 N.J. at 579-80).
To determine whether an agency's decision is arbitrary, capricious or unreasonable, we consider whether the agency followed the law; whether there is sufficient credible evidence in the record to support the agency's actions; and whether in applying the law to the facts, the agency erred by reaching a conclusion that could not reasonably have been reached upon consideration of the relevant factors. Ibid. (citing In re Carter, 191 N.J. 474, 482-83 (2007)).
We note initially that Dixon does not have a liberty interest in holding his position as Secretary of the NJSP chapter of the NAACP. Although states may provide liberty interests for inmates that are constitutionally protected, such interests are generally limited to freedom from an "'atypical and significant hardship'" when considered "'in relation to the ordinary incidents of prison life.'" Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.) (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300, 132 L. Ed. 2d 418, 430 (1995)), certif. denied, 162 N.J. 196 (1999). Precluding an inmate from holding an elected position in an organization within the institution because the inmate has been sanctioned for a disciplinary infraction is not a significant hardship, when viewed in the context of the "'ordinary incidents of prison life.'" Ibid. (quoting Sandin, supra, 515 U.S. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 430).
Dixon contends, however, that the Administrator's decision must be reversed because he was removed from his position after he was elected, rather than before. He argues that the decision is arbitrary and capricious because he committed the infraction more than three months before the decision was made. Dixon also contends that the Administrator should be precluded from removing him from his position as Secretary of the NAACP because the Administrator did not act before the election.
We are satisfied that these arguments do not have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We nevertheless add the following. We are convinced that while the NAACP bylaws allow the Administrator to disqualify an inmate from seeking election to an executive position in that organization, the organization's bylaws do not preclude the Administrator from removing an inmate from an executive position after the election, where, as here, the inmate has been disciplined and sanctions imposed.
We are also convinced that the Administrator acted reasonably in concluding that Dixon should not be permitted to serve as Secretary because Dixon had committed a disciplinary infraction affecting the safety and security of the prison. In our view, the Administrator reasonably determined that Dixon would not be permitted to seek election to the position unless he remains charge free for a year.
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