Herbert Gray 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NOT FOR PUBLICATION WITHOUT THE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-1555-22
HERBERT GRAY,
Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Respondent.
______________________________
Submitted October 29, 2024 – Decided November 6, 2024
Before Judges Smith and Chase.
On appeal from the New Jersey Department of
Corrections.
Herbert Gray, appellant pro se.
Matthew J. Platkin, Attorney General, attorney for
respondent (Sookie Bae-Park, Assistant Attorney
General, of counsel; Leo R. Boerstoel, Deputy Attorney
General, on the brief).
PER CURIAM
Inmate Herbert Gray appeals from a November 1, 2022 final agency action
taken by the Department of Corrections ("Department") based on allegations
that he destroyed a unit telephone. Implicitly conceding that a full
administrative hearing process would have been more appropriate in this
circumstance, the Department urges us to remand this issue to them so that they
may vacate the administrative action. After considering the arguments of both
parties, we grant that request.
On November 1, 2022, the Associate Administrator of Northern State
Prison, via written correspondence, concluded Gray destroyed the unit
telephone, interfered with the orderly running of the unit, and interrupted other
inmates' phone time. The Associate Administrator, "in an effort to correct"
Gray's "inappropriate" behavior, and to get him "to conform to institutional
rules[,]" notified Gray of the administration's decision to impose a sanction of
thirty days loss of telephone privileges. The written decision also indicated that
Gray's privileges and activities would be reinstated contingent on positive
adjustments and appropriate behavior.
On appeal, Gray contends that his due process rights were violated
because the administrative action taken against him failed to adhere to the
procedural requirements enacted by Wolff v. McDonnell, 418 U.S 539 (1974)
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and N.J.A.C. 10A:4-9.1 (a), (b). Gray argues that he received no notice that
would have allowed him the opportunity to marshal the facts in his defense and
to clarify the charge. Additionally, he posits he was also not granted the
opportunity to call witnesses.
Gray also maintains that no facts were mentioned to support the Associate
Administrator's arbitrary action of depriving him of procedural safeguards.
Lastly, Gray states that he is a member of the vulnerable population and that
"N.J.S.A. 30:4-82.11(7)(a) indicates that the Commissioner of the Department
of Corrections was to limit restrictions on religious, mail, and telephone
privileges and that such restrictions shall only be imposed as is necessary for the
safety of the inmate or others." He contends that revoking his telephone
privileges without considering his blindness is contrary to his right to freedom
of speech and association as well as his right to due process.
Although N.J.A.C. 10A:4-5.1(t) supports the Department's authority to
issue discipline via administrative action letters, the Department asks us to
remand the matter "in order to vacate the administrative action sanctions and
expunge all references thereto from [Gray's] record."
Under Rule 2:9-1(b), remand to an agency of a pending appeal is
appropriate for further proceedings by the agency in the interests of justice.
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Wilson v. Borough of Mountainside, 42 N.J. 426, 442 (1964) (holding "[t]he
discretionary power in a court to remand an administrative action under review
for further proceedings by the agency in the interests of justice is
unquestionable."). We therefore remand the matter to the Department to enable
it to vacate the sanctions and expunge the matter from Gray's record. The
proceedings on remand should be completed within forty-five days. We do not
retain jurisdiction.
Remanded.
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