DAVID NASH VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-1396-18T4
DAVID NASH,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted June 25, 2019 – Decided July 10, 2019
Before Judges Rothstadt and Suter.
On appeal from the New Jersey Department of
Corrections.
David Nash, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Nicholas A. Sullivan, Deputy
Attorney General, on the brief).
PER CURIAM
David Nash, an inmate at Northern State Prison (NSP), filed a property
claim for lost, damaged or destroyed personal property. He appeals a final
decision of the Department of Corrections (DOC) that denied his property claim.
For reasons that follow, we reverse and remand.
After Nash was released from a stay in the Medical Clinic at NSP where
he had been from May 13, 2018, he filed an inmate claim for lost, damaged or
destroyed personal property, known as Form 943-I. The claim alleged that on
May 10, 2018, an officer on the prison wing where Nash was assigned
confiscated his "[fifteen] inch Clear Tunes" television on grounds that he had no
proof of ownership. Nash listed "the unit rep, cell 102," as a witness to the
confiscation, but did not have the name of this person or "State number." His
claim also alleged that other items had been stolen by his "cell mate, top bunk,"
in cell 119, while Nash was staying in the Clinic. He included a handwritten list
of electronic, food and cosmetic items that he said were taken, but did not
include any receipts for the items. After he filed his claim, Nash obtained copies
of sales receipts from DOC through an Open Public Records Act request. These
included a receipt from 2011 for the television. Nash alleged he submitted these
receipts to the Claims Committee at NSP that was reviewing his claim, but the
State claims these were not provided.
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An inventory of Nash's property, known as an IIS-1M Inmate Inventory
Sheet, was prepared when he transferred from his assigned unit to the Clinic.
See N.J.A.C. 10A:1-11.6(a) (providing that this form "shall be used to itemize
all personal property in the inmate's possession upon admission, while
incarcerated and upon transfer"). It was signed twice by Nash: once with no
date and once with the date of May 24, 2018, when he was released from the
Clinic.1 This inventory does not list the television, but does list "headphones"
and various other clothes, food and cosmetic items.
Nash's claim was referred to a DOC lieutenant "for investigation and
submission to the Claims Committee for review." The investigation report dated
September 21, 2018, recommended denial of the claim because there was "[n]o
evidence . . . that inmate exercised care in preventing loss by securing [his]
property or that staff negligence was [the] cause of the claim." It listed three
reasons in support of the recommendation: "[n]o receipts or appraisal forms
attached . . . [n]o proof of negligence on the part of the staff . . . [and the b]urden
of proof lies with [the inmate]." The Business Manager of NSP recommended
1
The copies provided by Nash and the State do not show the year. The form
uses the dates "5/13/1" and "5/24/1." We surmise it is for 2018 because both
parties include the same form and it provides that he was being transferred from
the "C1W" wing to the infirmary.
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disapproval of the claim because Nash had not attached any receipts or appraisal
forms and because there was "[n]o proof of negligence on the part of NSP staff."
On October 12, 2018, the NSP Administrator accepted the recommendation and
disapproved the claim.
On appeal, Nash raises the following issues:
POINT ONE
THE STATE AGENCY'S ADMINISTRATIVE
DECISION WAS ARBITRARY, CAPRICIOUS, AND
UNREASONABLE IN LIGHT OF THE SUFFICIENT
CREDIBLE EVIDENCE PRESENT IN THE
RECORD, IN VIOLATION OF DUE PROCESS,
STATUTE, AND REGULATION.
POINT TWO
THE STATE AGENCY FAILED TO MAKE
REQUIRED SPECIFIC FINDINGS FROM WHICH
TO INFORM INTERESTED PARTIES AND THE
REVIEWING TRIBUNAL OF THE BASIS FOR THE
DECISION IN ORDER TO CONDUCT A PROPER
REVIEW, IN VIOLATION OF DUE PROCESS,
STATUTE, AND REGULATION.
POINT THREE
THE STATE AGENCY'S FACTUAL CONCLUSIONS
ARE SO WIDE OFF THE MARK AS TO BE
MANIFESTLY MISTAKEN GIVING RISE TO A
SENSE OF WRONGNESS, IN VIOLATION OF DUE
PROCESS, STATUTE, AND REGULATION.
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POINT FOUR
THE STATE AGENCY'S ADJUDICATION IS
INCONSISTENT WITH LAW AND THE POLICIES
BEHIND THE LEGISLATION, IN VIOLATION OF
DUE PROCESS, STATUTE, AND REGULATION.
Our 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 are not, however,
bound by the "agency's 'interpretation of a statute or its determination of a
strictly legal issue.'" Ibid. (quoting L.A. v. Bd. of Educ., 221 N.J. 192, 204
(2015)).
Prior to September 4, 2018, N.J.A.C. 10A:2-6.1(a) provided that an inmate
must file a claim for lost, damaged or destroyed property by submitting Form
943-I. Following submission:
(b) The Administrator or designee shall submit Form
943-I to the Director of Custody Operations or designee
for investigation and preparation of a report. The
investigation conducted by the Director of Custody
Operations or designee shall consist of, but not be
limited to:
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1. Obtaining statements from the inmate, witnesses and
correctional facility staff; and
2. Verifying that the inmate was authorized to have and
did in fact, possess the personal property named in the
claim.
3. Verification of possession of lost, damaged or
destroyed personal property may be made by review of
applicable documentation such as the IIS-1M Inmate
Inventory Sheet maintained by the correctional facility
(see N.J.A.C. 10A:1-11).
[N.J.A.C. 10A:2-6.1(b).]2
Other regulations also set forth factors to be considered in recommending
or disapproving a claim. See N.J.A.C. 10A:2-6.2. These include whether there
was neglect by the facility and whether the inmate submitted sufficient
information about the items claimed. Ibid.Nash made two claims: that an officer confiscated his television on May
10, 2018, and that other items of his were taken after he was transferred to the
Clinic on May 13, 2018. There is an inventory of his property on Form IIS-1M
dated May 13.
2
We cite to the regulation as it appeared when Nash filed his claim. This
regulation was amended effective September 4, 2018. See 50 N.J.R. 1964(a)
(Sept. 4, 2018). None of the amendments affects our analysis.
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This inventory does not address what property Nash had on May 10 when
he alleges his television was confiscated. There is no indication that a statement
was taken from the officer alleged to be involved. See N.J.A.C. 10A:2-6.1(b)(1)
(providing that the investigation "shall" consist of "[o]btaining statements from
. . . correctional facility staff"). The inventory would not provide verification
of his property as allowed by N.J.A.C. 10A:2-6.1(b)(3) because it was made on
May 13, 2018, three days after the confiscation allegedly occurred. We do not
know if there were any prior inventories where the television might have been
listed. N.J.A.C. 10A:1-11.11 (providing that a signed IIS-1M "shall become a
permanent part of the inmate's classification folder"). The DOC's decision to
deny this portion of the claim did not reveal that the factors under N.J.A.C.
10A:2-6.2 were reviewed, but instead, it summarily concluded there was no
negligence by the staff and no receipts.
Nash claimed that his cellmate took things when his property was packed
up on May 13, 2018. The IIS-1M inventory is signed twice by Nash. One
signature is not dated and the other is dated May 24, 2018. The DOC does not
explain if the first signature was Nash's confirmation that the inventory was
accurate. If so, that might undercut his claim that items were taken because it
could be used as verification of what property he had on that date. See N.J.A.C.
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10A: 2-6.1(b)(3). If the inventory was signed only on May 24, it simply would
be confirming what he received on May 24 without verifying what property he
had when he transferred to the Clinic. There is no indication that any statements
were taken from his cellmate or all the factors under N.J.A.C. 10A:2-6.2 were
considered.
The DOC did not comply with regulations N.J.A.C. 10A:2-6.1 and 6.2.
We are constrained to remand this for an investigation consistent with the
regulations.
Reversed and remanded. We do not retain jurisdiction.
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