SILVANO COLLADO VS. ELI M. SALZMANN (L-4337-12, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3833-14T1
SHAWN JULY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted January 25, 2017 – Decided April 5, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the New Jersey Department of
Corrections.
Shawn July, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel;
Christopher C. Josephson, Deputy Attorney
General, on the brief).
PER CURIAM
Shawn July, an inmate previously incarcerated at the New
Jersey State Prison (NJSP), appeals from the October 29, 2014
final agency decision of the New Jersey Department of Corrections
(DOC), which continued his placement in involuntary protective
custody (IPC).1 Having considered the arguments and applicable
law, we affirm.
July is serving a sentence of twenty-two years, six months
and thirteen days of imprisonment, with a seventeen-year period
of parole ineligibility, for aggravated manslaughter, weapons and
drug offenses. According to the DOC, July is a member of a
Security Threat Group (STG).2 On March 12, 2013, while
incarcerated at East Jersey State Prison in Rahway, July stabbed
another inmate in the neck with a shard of glass. An investigation
by the Special Investigations Division (SID) revealed that the
assault was precipitated by a gang dispute. That same day, July
was transferred from East Jersey State Prison to NJSP in Trenton.
1
On December 13, 2016, the DOC transferred July to the State
Correctional Institution in Camp Hill, Pennsylvania, pursuant to
the Interstate Corrections Compact (the Compact), N.J.S.A. 30:7C-
1 to -12. As codified, the Compact "empowers New Jersey to enter
into contracts with other states 'for the confinement of inmates
on behalf of a sending state in institutions situated within
receiving states.'" Van Winkle v. N.J. Dep't of Corr., 370 N.J.
Super. 40, 45 (App. Div. 2004) (quoting N.J.S.A. 30:7C-4(a)).
Following his transfer, the State filed a motion to dismiss the
appeal, arguing that since July was no longer in protective custody
in New Jersey, his appeal was moot. In an order entered on
February 14, 2017, we denied the State's motion.
2
A STG is a group of inmates who pose "a threat to the safety of
the staff, other inmates, the community or causes damage to or
destruction of property, or interrupts the safe, secure and orderly
operation of the correctional facility(ies)." N.J.A.C. 10A:1-2.2.
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July was placed in prehearing IPC the following day after a
SID investigator received information that he had acted against
the etiquette of the STG, bringing a negative light to himself and
others. The investigator determined that IPC was warranted to
ensure July's safety and the security of the institution.
Accordingly, the DOC continued July's placement in IPC pending
additional investigation by SID.3 Following reviews of July's
status by the Institutional Classification Committee (ICC) on
March 26, 2013, September 30, 2013, and May 5, 2014, July's
placement in IPC was continued.
On August 12, 2014, the DOC served July with a "Notice of
Protective Custody Hearing – Involuntary" pursuant to N.J.A.C.
10A:5-5.2(c)4 notifying him of his upcoming IPC hearing before a
Disciplinary Hearing Officer (DHO). At the hearing conducted on
September 3, 2014, July was afforded counsel substitute and the
3
N.J.A.C. 10A:5-5.1(c) provides that prehearing protective
custody "shall be used when necessary in order to conduct an
investigation. . . . [T]he Administrator or designee shall gather
facts, information and available documentation to support or
reject the placement and shall order such additional investigation
as is deemed necessary for a clear understanding of the case."
4
N.J.A.C. 10A:5-5.2(c) provides that "[a] copy of Form 146-II
[Notice of Protective Custody Hearing – Involuntary] shall be
given to the inmate at least 24 hours prior to the in-person
hearing."
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opportunity to obtain and submit five witness statements from
fellow inmates as well as other documentary evidence. July
testified that there were no threats warranting his placement in
IPC and argued that the length of time between his initial
placement and the hearing violated his due process rights.
The DHO relied on a confidential report5 prepared by the SID
on May 8, 2014,6 detailing its investigation. The hearing officer
noted that the evidence July provided failed to contradict the
SID's findings. Specifically, the DHO determined that July's
witness statements were "vague" and did "not assist" his position.
Based on the SID's confidential report, the DHO concluded that
July's continued placement in IPC "is warranted to ensure [his]
safety and the security of the institution." The DHO also referred
July's case to the ICC for a possible transfer to another
institution where he can remain in the general population.
5
We do not discuss the contents of the confidential report at
length here in order to preserve its confidentiality.
6
In response to July's objection to the delay in preparing the
report, the DHO noted that, while the evidence is clear that the
SID did not prepare the report within the prescribed time frame,
there was no prejudice to July because the hearing was non-
punitive. Under N.J.A.C. 10A:5-5.2(i), "[i]nmates placed
involuntarily in Prehearing Protective Custody shall receive a
hearing within 20 business days after receipt of the notice, unless
there are exceptional circumstances, unavoidable delays or
reasonable postponements."
4 A-3833-14T1
Thereafter, July filed an administrative appeal of his
placement in IPC to the administrator of the NJSP. On October 29,
2014, the administrator affirmed July's placement in IPC. The
administrator noted that the hearing complied with N.J.A.C. 10A:5-
5.2, governing procedures for involuntary placement in protective
custody, and "[a] review of all documentation support[ed] [July's]
placement into this status." This appeal followed.
On appeal, July argues that his placement in IPC violated his
substantive and procedural due process rights. He also asserts
that there is insufficient credible evidence to support the DOC's
decision to continue his placement in IPC. We disagree.
The scope of our review of a final agency decision is strictly
limited. In re Taylor, 158 N.J. 644, 656 (1999). When reviewing
an agency's decision, we consider whether: (1) the agency's
decision violates the New Jersey Constitution or the Constitution
of the United States; (2) "the agency's action violates express
or implied legislative policies;" (3) there is substantial
evidence to support the findings of fact upon which the decision
is based; and (4) "in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion that
could not reasonably have been made on a showing of the relevant
factors." Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997)
5 A-3833-14T1
(quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8,
27 (1994)).
It is well settled that decisions of administrative agencies
carry with them a presumption of reasonableness. Newark v. Natural
Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101
S. Ct. 400, 66 L. Ed. 2d 245 (1980). Accordingly, "[a]n 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. 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)).
"'Substantial evidence' means 'such evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Figueroa v.
N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010)
(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376
(1961)). "The term has also been defined as 'evidence furnishing
a reasonable basis for the agency's action.'" Ibid. (quoting
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (2002)).
Applying these standards, we discern no reason to disturb the
DOC's decision to continue July's placement in IPC. The New Jersey
Legislature has declared, "incarcerated offender[s] should be
protected from victimization within [State correctional]
6 A-3833-14T1
institution[s,]" N.J.S.A. 30:1B-3(c), and the DOC is responsible
for implementing this legislative mandate. N.J.S.A. 30:1B-3.
Where the DOC has fulfilled its statutory obligation to protect
an incarcerated offender by placing him in IPC, as here, its action
does not implicate due process principles applicable to certain
other disciplinary proceedings. See Sandin v. Conner, 515 U.S.
472, 486, 115 S. Ct. 2293, 2301, 132 L. Ed. 2d 418, 431 (1995)
(holding that administrative segregation and protective custody
do not present "atypical, significant deprivation in which a State
might conceivably create a liberty interest.").
Nevertheless, the DOC's regulations specify the conditions
of protective custody, N.J.A.C. 10A:5-5.6 to -5.19, as well as
procedures governing placement, N.J.A.C. 10A:5-5.2 and -5.3.
Inmates may be placed in protective custody on the recommendation
of the SID or correctional staff, or by order of a corrections
official. N.J.A.C. 10A:5-5.1(a)(1), (3) and (4). An inmate may
be placed in protective custody voluntarily or involuntarily,
N.J.A.C. 10A:5-5.1(a)(5) and (6), but an inmate placed
involuntarily is entitled to notice and a hearing before a
disciplinary hearing officer, N.J.A.C. 10A:5-5.2.
The hearing must conform to the procedures delineated in
N.J.A.C. 10A:5-5.2 and -5.3. Pursuant to those provisions: (1)
the inmate is informed of all information relative to his placement
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"with the exception of information designated confidential[,]"
N.J.A.C. 10A:5-5.2(j); (2) is afforded an opportunity to "present
any relevant evidence supporting or contesting placement . . .
[,]" N.J.A.C. 10A:5-5.2(d)(3); and (3) is entitled "to receive the
assistance of a counsel substitute[.]" N.J.A.C. 10A:5-5.2(g). An
inmate placed in IPC may appeal the hearing officer's decision to
the prison administrator or his designee, N.J.A.C. 10A:5-5.3, and
is entitled to an in-person hearing once a year, or more often if
deemed necessary, N.J.A.C. 10A:5-5.4(b).
Here, July argues that the hearing officer erred by relying
upon the uncorroborated SID report, and asserts that there is
insufficient evidence to support his placement in IPC. He also
contends that his placement was not in accordance with the
administrative regulations and violated his due process rights.
We are satisfied that the DOC substantially followed the
regulations governing IPC placements, N.J.A.C. 10A:5-5.1 to -5.24,
and the hearing officer's final decision was supported by
sufficient credible evidence in the record. Specifically, the
SID's confidential report supports the determination that July
would be at risk of serious harm if placed in the general
population, and protective custody was warranted to ensure his
safety and the security of the institution. Further, at his
hearing, July was advised of the reason for his placement, provided
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counsel substitute, and was afforded an opportunity to testify and
present evidence contesting his placement.
Affirmed.
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