S.H. VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5183-15T2
S.H.,1
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
Submitted January 28, 2019 – Decided February 11, 2019
Before Judges Fasciale and Rose.
On appeal from the New Jersey Department of
Corrections.
S.H., appellant, pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Kevin J. Dronson, Deputy
Attorney General, on the brief).
1
We use initials to protect the privacy of S.H.
PER CURIAM
S.H. appeals from the final decision of the Department of Corrections
(DOC), denying his request to eliminate or modify contraband seizure forms
utilized by the Special Treatment Unit (STU) at Avenel. We affirm.
We glean the procedural history and pertinent facts, which essentially are
undisputed, from the record before the DOC. S.H. was involuntarily committed
under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38,
and resides in the STU. In June 2016, S.H. submitted a grievance claiming "the
DOC is utilizing an improper form at the STU when [it] seize[s] a resident's
personal property." 2 In particular, S.H. contended the STU's "Resident Receipt,
Contraband Seizure Form 171-IIA" incorrectly references N.J.A.C. 10A:3-6,
which generally applies to correctional facilities and, as such, does not pertain
to civil commitment institutions, such as the STU. In a terse written statement,
the DOC acknowledged receipt of S.H.'s inquiry, indicating the issue would be
considered. Following S.H.'s administrative appeal, the DOC upheld its
decision, but failed to explain its reasoning.
2
In April 2016, we granted the DOC's motion to dismiss S.H.'s prior appeal of
the STU's seizure of his personal electronic property because the property was
returned to him prior to disposition of that appeal. S.H. v. Special Treatment
Unit, No. A-5489-14 (App. Div. Apr. 19, 2016).
A-5183-15T2
2
Thereafter, S.H. appealed the DOC's decision to our court, and we granted
the DOC's motion for a remand to explain the basis of its decision. On June 6,
2018, the DOC issued the following final written decision:
The [DOC] utilizes Form[s] "171-IA Seizure of
Contraband [Report]," and "171-IIA Resident Receipt,
Contraband Seizure" for the purpose of documenting
items that are seized from you if they are not permitted
inside the facility. Th[ese are] . . . departmental form[s]
and the use of the term "correctional facility" [on the
forms] does not in any way indicate that you are an
"inmate" nor does it deny you any of your rights set
forth in the [SVPA]. Per [N.J.S.A.] 30:4-27.34[(a)], the
[]DOC is "responsible for the operation of any facility
designated for the custody, care, and treatment of
sexually violent predators."
Regarding the [N.J.A.C.] . . . "10A:3-6"
[reference] appearing in the upper right hand corner of
. . . [F]orm [171-IIA] and regarding paragraphs that
read: "If no disciplinary charges [have been] issued[,
you have three business days from the date of this
receipt to send a written appeal to the Administrator
containing information as to why this item should not
be considered contraband] . . ." and "If disciplinary
charges have been issued[, your appeal is through the
disciplinary process] . . ." These [paragraphs] do not
pertain to you as a [r]esident [of the STU]. In review
of your time at the STU[,] you were never subject to
discipline [pursuant to N.J.A.C.] 10A:3-6[,] nor were
you issued any disciplinary charges.
This appeal followed.
A-5183-15T2
3
On appeal, S.H. asserts a single argument for our consideration in his
merits brief:
THE [DOC] ERRED WHEN IT DENIED [S.H.]'S
ADMINISTRATIVE REMEDY REQUEST TO
PURGE AND REVISE THE [STU]'S RESIDENT
RECEIPT CONTR[A]BAND SEIZURE FORM (171-
IIA . . . ). (Emphasis added).
In his supplemental brief, S.H. further argues:
THE DECISION OF THE [DOC] IS BOTH
ARBITRARY AND CAPRICIOUS BECAUSE ITS
FORM 171-IA, SEIZURE OF CONTRABAND, MAY
ONLY BE UTILIZED AT A CORRECTIONAL
INSTITUTION AND PROVIDES MISLEADING
INFORMATION IF USED AT A CIVIL
COMMITMENT FACILITY. (Emphasis added).
Finally, in his reply brief, 3 S.H. claims:
THE [DOC]'S FINAL AGENCY DECISION SHOULD
BE REVERSED BECAUSE THE [DOC]'S ACTIONS
ARE UNREASONABLE.
Our limited review of an administrative agency's action is well settled.
See, e.g., Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27
(2011). Reviewing courts presume the validity of the "administrative agency's
exercise of its statutorily delegated responsibilities." Lavezzi v. State, 219 N.J.
3
In his reply brief, S.H. contends he only "is challenging the validity of Form
171-IIA and not 'Form 171-IA[,]'" but the arguments set forth in his
supplemental brief pertain to both forms.
A-5183-15T2
4
163, 171 (2014). For those reasons, "an appellate court ordinarily should not
disturb an administrative agency's determinations or findings unless there is a
clear showing that (1) the agency did not follow the law; (2) the decision was
arbitrary, capricious, or unreasonable; or (3) the decision was not supported by
substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate
of Need, 194 N.J. 413, 422 (2008). "The burden of demonstrating that the
agency's action was arbitrary, capricious or unreasonable rests upon the [party]
challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-
44 (App. Div. 2006).
Further, "[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) (citation omitted). The DOC is given broad
discretion in matters affecting the STU. We are not, however, bound by an
agency's statutory interpretation or other legal determinations. Russo, 206 N.J.
at 27.
Both the DOC and the Department of Human Services (DHS) are
statutorily obligated to participate in the management of the STU and the
treatment of its residents. Specifically, the DOC is charged with the operation
A-5183-15T2
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of the facilities, N.J.S.A. 30:4-27.34(a), and the DHS is required to "provide or
arrange for treatment" of the STU's residents, N.J.S.A. 30:4-27.34(b). The
Legislature also directed that representatives of both agencies "participate in an
interagency oversight board to facilitate the coordination of the policies and
procedures of the facility." N.J.S.A. 30:4-27.34(c). In fulfilling that mission,
the two agencies adopted identical regulations for the governance of the STU.
See N.J.A.C. 10:36A-1 to -10; N.J.A.C. 10A:35-1 to -10.
Here, S.H. contends the STU's use of Forms 171-IA and 171-IIA is
"confusing and misleading" because STU residents need not submit "a written
appeal to the [A]dministrator [when their contraband items are seized]." S.H.'s
argument, though well-intentioned, is misplaced. While the STU is designated
as a treatment facility, and not a correctional facility, the DOC is duly authorized
to operate the STU and uses the forms at issue to document impermissible items
seized from its residents.
Moreover, the procedures for appeal following confiscation of property
are virtually identical for a STU resident and a prison inmate. Compare N.J.A.C.
10:36A-3.2(b) (providing "three business days" for a STU resident to appeal "by
submitting a grievance to the individual designated to process grievances, with
the DOC Administrator or [Division of Medical Assistance and Health Services]
A-5183-15T2
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Clinical Director . . . . "), with N.J.A.C. 10A:3-6.1(a)(5) ("The inmate shall have
three business days to appeal the seizure to the Administrator or designee.").
Importantly, N.J.A.C. 10:36A-3.2(b) further mandates the staff member who
confiscates a STU resident's property to notify the resident of the appeal
procedure. Accordingly, even if Form 171-IIA could be construed as confusing,
STU residents are apprised of the appeal process. Nor has S.H. demonstrated
that the STU's residents will be time-barred by the continued use of Form 171-
IIA.4
We therefore discern nothing arbitrary, capricious, or unreasonable in the
DOC's use of the forms at issue here. Such decisions are committed to the
discretion of the DOC, as the operator of the STU. N.J.S.A. 30:4-27.34(a).
Consequently, we decline to disturb the DOC's decision, which is supported by
sufficient credible evidence in the record. To the extent not addressed, S.H.'s
remaining arguments lack sufficient merit to warrant discussion in our written
opinion. R. 2:11-3(e)(1)(E).
4
In his reply brief, S.H. included the certification of another STU resident, S.G.,
claiming "sometime in or about the year 2013 or 2014[,]" S.G.'s property was
confiscated, and because S.G. had forwarded Form 171-IIA to the DOC, and not
to the DHS, his time to file an administrative appeal had expired. Because the
record does not indicate that S.H. submitted S.G.'s certification to the DOC, it
is inappropriate for our consideration on appeal. See Zaman v. Felton, 219 N.J.
199, 226-27 (2014).
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Affirmed.
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