Vaughn Simmons v. New Jersey Department of Corrections ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0856-22
VAUGHN SIMMONS,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted September 25, 2024 – Decided October 3, 2024
Before Judges DeAlmeida and Puglisi.
On appeal from the New Jersey Department of
Corrections.
Vaughn Simmons, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Janet Greenberg Cohen, Assistant Attorney
General, of counsel; Dorothy Rodriguez, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant Vaughn Simmons appeals from the October 16, 2023 final
agency decision of the Department of Corrections (DOC) upholding the
confiscation of videos he purchased through a DOC-approved inmate kiosk
system for delivery by email. We affirm.
I.
Simmons is an inmate at Northern State Prison. In March and April 2022,
he ordered forty-three thirty-second videos through the JPay inmate kiosk
system for delivery to him by email. According to Simmons, the videos depict
non-nude cultural dancing.
On July 15, 2022, Simmons submitted an inquiry to DOC staff stating that
he had not received the videos. Although he did not receive a confiscation notice
from DOC, JPay informed Simmons that the agency had confiscated the videos.
Simmons requested an explanation for the confiscation and asked whether he
would be compensated for the videos or have them returned to him upon his
release from incarceration.
On July 22, 2022, a DOC Lieutenant informed Simmons in writing that
the videos were confiscated because they "violated the [DOC] policy . . . of
obscenity as well as the Terms and Conditions of Use by JPay." The decision
provided definitions of "obscene," "pornography," and "sexually explicit"
A-0856-22
2
materials, but did not provide an explanation of where those definitions were
obtained. The letter also informed Simmons that JPay's Terms and Conditions
of Use, which he agreed to follow, states that all emails and attachments will be
monitored by DOC or JPay for compliance with DOC policies, and that inmates
will not receive a refund for materials confiscated by DOC.
On August 2, 2022, Simmons submitted an inmate grievance form seeking
compensation for the confiscated videos. He stated that: (1) DOC failed to
provide him with a confiscation notice; (2) the confiscation was "ethnic
discrimination, cultural bias[,] and prejudice" and (3) he was being retaliated
against because "non-nude videos" he previously purchased and received from
JPay had been removed from his JPay account.
On September 13, 2022, a DOC representative informed Simmons that his
grievance had been previously answered.
On October 4, 2022, Simmons filed a request for assistance with the DOC
Ombudsman stating that DOC did not fully address his allegations of
discrimination and retaliation. He alleged the confiscation was discrimination
against "African, African-American communities, Latino communities[,] and
French Polynesian communities" because the dancing depicted on the videos is
cultural.
A-0856-22
3
On October 11, 2022, a DOC employee responded by informing Simmons
that his grievance had previously been answered.
Simmons again filed a claim with DOC that his grievance had not been
adequately examined. On October 19, 2022, a DOC employee issued a final
agency decision reiterating the basis for the confiscation stated in the July 22,
2022 letter.
This appeal followed. On October 5, 2023, we granted DOC's motion for
a remand. On October 16, 2023, the agency issued a revised final agency
decision, clarifying the basis for the confiscation. The agency stated that the
videos were confiscated because they were "prurient," "obscene,"
"pornography," and "sexually explicit," within the meaning of N.J.A.C. 10A:18-
2.14(a)(6), and because they violate DOC's policy on videos and attachments
received through JPay. The decision elaborated that the videos each were
comprised of thirty-seconds "consisting entirely of close-up shots of various
women's buttocks," while the women were "gyrating their hips in a manner that
causes their buttocks to slap together during the entire video."
Simmons argues that the decision should be reversed because DOC: (1)
did not provide him with a confiscation notice when it first confiscated the
videos, depriving him of due process; (2) failed to compensate him for the
A-0856-22
4
videos; (3) violated his First Amendment rights; and (4) retaliated against him
by confiscating videos it previously permitted him to possess.
II.
Review of an administrative agency's final decision is limited. Kadonsky
v. Lee, 452 N.J. Super. 198, 201-02 (App. Div. 2017) (citing In re Stallworth,
208 N.J. 182, 194 (2011)). "We will not reverse an agency's judgment unless
we find the decision to be 'arbitrary, capricious, or unreasonable, or [] not
supported by substantial credible evidence in the record as a whole.'" Id. at 202(quoting Stallworth, 208 N.J. at 194). We "defer to the specialized or technical
expertise of the agency charged with administration of a regulatory system."
K.K. v. Div. of Med. Assistance & Health Servs., 453 N.J. Super. 157, 160 (App.
Div. 2018) (quoting In re Virtua-West Jersey Hosp. Voorhees for a Certificate
of Need, 194 N.J. 413, 422 (2008)). The Legislature has provided for the broad
exercise of 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).
We have carefully reviewed the record in light of these precedents and
find no basis on which to reverse the DOC's decision.
A-0856-22
5
With respect to the agency's failure to provide notice of its initial
confiscation of the videos, we note that incarcerated persons have a right to due
process. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). That right,
however, is subject to limitations consistent with the important State interest in
maintaining the orderly operation and security of prisons. O'Lone v. Shabazz,
482 U.S. 342, 348 (1987). "Due process is not a fixed concept . . . but a flexible
one that depends on the particular circumstances." Doe v. Poritz, 142 N.J. 1,
106 (1995) (citations omitted). Generally, "due process requires an opportunity
to be heard at a meaningful time and in a meaningful manner." Ibid.DOC does not dispute that it failed to provide Simmons with a notice of
the confiscation, as required by N.J.A.C. 10A:3-6.1(a). Nevertheless, it is clear
from the record that Simmons ultimately became aware of the confiscation and
had multiple opportunities to challenge the agency's decision to block his receipt
of the videos. The agency responded to Simmons's grievances with an
explanation of the basis of its decision to confiscate the videos. We see no
deprivation of due process.
Nor do we find merit in Simmons's argument that he is entitled to
compensation for the confiscated videos. The JPay Terms of Service, with
which Simmons agreed to comply as a condition of using the system, expressly
A-0856-22
6
provides that a refund will not be given when an inmate orders a video that
violates DOC policy or regulations and is, as a result, confiscated.
Simmons's claims of discrimination and retaliation are not supported by
the record. A DOC regulation prohibits the possession of material that "[t]aken
as a whole, appeals to a prurient interest in sex," "[l]acks, as a whole, serious
literary, artistic, political, or scientific value," or "[d]epicts, in a patently
offensive way, sexual conduct . . . extreme close-up photos, [and] any . . .
manipulation . . . of the . . . buttocks . . . ." N.J.A.C. 10A:18-2.14(a)(6)(i) – (iii).
The regulation provides that "[v]iolation of any rules regarding . . . electronic
correspondence may result in non-delivery of the . . . electronic correspondence
and/or attachment . . . and/or e-videos." N.J.A.C. 10A:18-2.14(a)(8).
The videos, as described by DOC, depict manipulation of the buttocks in
a manner appealing to the prurient interest. Simmons produced no evidence that
the videos, taken as a whole, have serious literary, artistic, political, or scientific
value. Nor has he established that the DOC has applied its regulation, which is
clearly designed to maintain the orderly operation and security of the prison, in
a discriminatory fashion based on his cultural background. See Miller v.
California, 413 U.S. 15, 23 (1973) (holding that inmates do not have a
A-0856-22
7
constitutional right to possess obscene material that lacks "serious literary,
artistic, political, or scientific value.").1
Simmons also failed to establish that the agency retaliated against him by
confiscating previously approved videos. Once the agency became aware of the
nature of the videos Simmons was ordering from JPay, it had the authority to
review his prior video purchases stored in his JPay account to determine whether
he was in possession of additional contraband.
To the extent we have not specifically addressed any of Simmons's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
1
The parties did not include a copy of the videos in their submissions to this
court. We, therefore, have not viewed the videos and rely on the description of
their contents provided by DOC, which Simmons does not dispute.
A-0856-22
8