NOT FOR PUBLICATION WITHOUT THE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-4784-14T2
U'BAY LUMUMBA,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted February 1, 2017 – Decided April 5, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from the New Jersey Department of
Corrections.
U'Bay Lumumba, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Kevin
J. Dronson, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant U'Bay Lumumba, a New Jersey State Prison (NJSP)
inmate, appeals from the January 20, 2015 final agency decision
of the Department of Corrections (DOC). DOC denied appellant's
request for free photocopying of his legal materials pursuant to
N.J.A.C. 10A:6-2.6 based on its determination that appellant did
not qualify as indigent as defined in N.J.A.C. 10A:1-2.2. As a
result, DOC made loans to appellant's inmate trust account (inmate
account) to cover his expenses. Having considered the record on
appeal and the applicable legal principles, we affirm DOC’s
determination that appellant does not qualify as indigent and must
therefore repay DOC for loans made to his inmate account.
We discern the following facts from the record. Appellant
is serving an aggregate life sentence with a thirty-five year
period of parole ineligibility for murder, aggravated assault,
robbery, and weapons offenses. During his incarceration,
appellant was found guilty of fifty-two infractions, eighteen of
which were adjudicated since 2011. These infractions included
disruptive conduct, attempts to offer staff members bribes, misuse
of electronic equipment, possession of unauthorized security
equipment and drug related charges. Appellant's extensive history
of disciplinary infractions resulted in his placement in
administrative segregation from 2011 to 2015.1
1
In his reply brief, appellant references our decision reversing
and remanding for a rehearing a June 18, 2014 DOC decision finding
appellant guilty of sixteen disciplinary infractions. Lumumba v.
N.J. Dept. of Corr., No. A-5183-13 (App. Div. January 4, 2016)(slip
op. at 1). Appellant asserts that following the rehearing, he was
2 A-4784-14T2
On June 16, 2014, appellant submitted an Inmate Inquiry Form
regarding his "outstanding legal copy loan." Appellant asserted
that because of his administrative segregation classification, he
could not earn wages and DOC should therefore provide him with
free photocopying services for his legal materials pursuant to
N.J.A.C. 10A:6-2.6. In response to appellant's inquiry, a NJSP
staff member advised appellant that, pursuant to N.J.A.C. 10A:1-
2.2, DOC grants indigent status only to inmates who are unable to
earn wages "due to prolonged illness or any other uncontrollable
circumstance, and who [have] been verified as having no outside
source from which to obtain funds."
On June 27, 2014, appellant filed an Inmate Grievance
reiterating his original assertion and adding that he did not have
any outside source of income. On July 9, 2014, appellant received
a second staff response denying him indigent status. On July 24,
2014, appellant filed an administrative appeal, requesting that
the "legal copy loan" he incurred since November 2011 "be
"adjudicated not guilty on eight [of the disciplinary charges]."
Statements in a brief, however, do not provide an evidential record
upon which we may properly rely in rendering a decision. See,
e.g., Rudbart v. Bd. of Review, 339 N.J. Super. 118, 122-23 (App.
Div. 2001) (noting that "[c]ounsel's insertion in his appellate
brief of facts outside the record below is inappropriate.").
Nonetheless, since the decision under appeal predated the
rehearing, consideration of the latter cannot possibly factor into
the former.
3 A-4784-14T2
rescinded" to reflect his indigent status as articulated in his
grievance.
On July 25, 2014, a NJSP Administrator denied appellant's
appeal on the ground that his placement in administrative
segregation was not an uncontrollable circumstance because he
"committed an offense" which resulted in his placement. The
Administrator concluded that, as a result, appellant "may not be
considered indigent." On August 8, 2014, appellant appealed the
denial to the DOC Commissioner, requesting that the Commissioner
"instruct the NJSP Administration . . . to comply with the
governing regulation[,]" and find appellant indigent and thereby
exempt from paying for copies of legal materials. Appellant's
appeal to the Commissioner was denied on January 20, 2015 on the
ground that appellant did not qualify as an indigent inmate under
N.J.A.C. 10A:1-2.2 as his inability to work resulted from his
placement in administrative segregation "due to inappropriate
behavior," rather than an uncontrollable circumstance. This
appeal followed.
Our role in reviewing an administrative agency decision is
limited. Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186,
190 (App. Div. 2010); In re Taylor, 158 N.J. 644, 656 (1999). Such
decisions carry with them a "presumption of reasonableness[,]"
Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div.
4 A-4784-14T2
2015), certif. denied, __ N.J. __ (2016) (citation omitted), and
will be disturbed only if it is "arbitrary, capricious, or
unreasonable or it is not supported by substantial credible
evidence in the record as a whole." Henry v. Rahway State Prison,
81 N.J. 571, 579-80 (1980). "The burden of demonstrating that the
agency action was arbitrary, capricious or unreasonable rests on
the [party] challenging the administrative action." In re Arenas,
385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J.
219 (2006).
To determine whether an agency action is arbitrary,
capricious, or unreasonable, we consider:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2) whether
the record contains substantial evidence to
support the findings on which the agency based
its action; and (3) whether 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.
[In re Carter, 191 N.J. 474, 482 (2007)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22,
25 (1995)).]
We are not "relegated to a mere rubber-stamp of agency action,"
but rather "are constrained to engage in a 'careful and principled
consideration of the agency record and findings.'" Williams v.
5 A-4784-14T2
Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)
(citations omitted).
We defer to the agency's interpretation of regulations that
are "within its implementing and enforcing responsibility[.]"
Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting In re
Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App.
Div. 1997)). However, we are "in no way bound by the agency's
. . . determination of a strictly legal issue." Mayflower Sec.
Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Thus, we may
intervene when an agency's decision rests upon a misinterpretation
of a regulation. Mazza, supra, 143 N.J. at 25.
On appeal, appellant contends that he qualifies as indigent
as defined in N.J.A.C. 10A:1-2.2 and DOC's adverse decision was
arbitrary, capricious, and unreasonable. Specifically, appellant
argues that DOC violated N.J.S.A. 30:4-92, N.J.A.C. 10A:5-3.16,
and the NJSP Inmate Handbook (Inmate Handbook) by improperly
denying him work opportunities because of his placement in
administrative segregation, a circumstance he could not control.
We disagree.
N.J.A.C. 10A:1-2.2 defines an indigent inmate as one "who has
no funds in his or her [inmate] account and is not able to earn
inmate wages due to prolonged illness or any other uncontrollable
circumstances, and who has been verified as having no outside
6 A-4784-14T2
source from which to obtain funds." While N.J.A.C. 10A:6-2.5(a)
requires DOC to "provide photocopies of legal material2 . . . to
inmates at the rate of $.10 per page,"3 under N.J.A.C. 10A:6-
2.6(a), DOC is required to provide these materials "at no charge"
to an indigent inmate as defined in N.J.A.C. 10A:1-2.2.
DOC determined that appellant does not qualify as indigent
pursuant to N.J.A.C. 10A:1-2.2 because his placement in
administrative segregation was not an uncontrollable circumstance
and could have been avoided if appellant complied with DOC rules.
However, appellant counters that it was DOC's noncompliance with
N.J.S.A. 30:4-92, N.J.A.C. 10A:5-3.16, and the Inmate Handbook
that deprived him of work opportunities while in administrative
segregation, a circumstance he could not control.
Administrative segregation, as defined in N.J.A.C. 10A:1-2.2,
is the "removal of an inmate from the general population of a
correctional facility to a close custody unit because of one or
more disciplinary infractions." N.J.S.A. 30:4-92 provides:
[I]nmates of all correctional . . .
institutions . . . shall be employed in
2
N.J.A.C. 10A:1-2.2 defines legal material as "papers or documents
that are required to be filed with the court and served upon
opposing parties."
3
N.J.A.C. 10A:6-2.7(h) authorizes DOC to deduct payment for
photocopying legal materials directly from a non-indigent inmate's
account.
7 A-4784-14T2
productive occupations consistent with their
health, strength, and mental capacity and
shall receive . . . compensation . . . in the
form of cash . . . or remission of time from
sentence or both.4
However, inmates are not guaranteed work assignments and it is
within DOC's discretion to determine whether to grant an inmate
in administrative segregation the opportunity to work and earn
wages. See Lorusso v. Pinchak, 305 N.J. Super. 117, 118-19 (App.
Div. 1997) (explaining that an inmate "has no liberty interest in
a particular, or any, job assignment, nor in the wages or credits
that can be earned by performing a prison work assignment.").
N.J.A.C. 10A:5-3.16 provides that “[w]ork opportunities may
be made available to inmates assigned to an Administrative Close
Supervision Unit to the extent possible in accordance with security
considerations, limited resources, availability of physical
facilities, and budgetary constraints.”5 Thus, contrary to
appellant's assertion, DOC has not violated the law by limiting
work opportunities to certain categories of inmates, but rather
utilized its discretion in determining when these opportunities
would be made available and to whom. Indeed, appellant admits
4
N.J.S.A. 30:4-92 was amended effective August 1, 2016. However,
the amendments do not affect the arguments in this appeal.
5
The section of the inmate handbook relied on by appellant to
support his argument merely recites the type of work detail
available to administrative segregation inmates.
8 A-4784-14T2
that, in the past, while in administrative segregation, DOC granted
him work opportunities. DOC's subsequent decision to deny
appellant work opportunities while in administrative segregation
based on "security considerations, limited resources, availability
of physical facilities, and budgetary constraints[]" does not
constitute an abuse of discretion. Ibid.
We are mindful that the Department has "broad discretionary
powers" to promulgate regulations governing correctional
facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). We have
noted that "[p]risons are dangerous places, and the courts must
afford appropriate deference and flexibility to administrators
trying to manage this volatile environment." Russo v. N.J. Dep't
of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999). As explained
by the Administrator, appellant's inability to work was due to his
administrative segregation, a circumstance within his control
since his segregation was a direct result of his failure to comply
with DOC rules and regulations. However, administrative
segregation is a temporary placement, which will not limit
appellant’s future ability to earn wages upon return to the general
population.6
6
Indeed, while not a part of the official record, appellant
submitted with his reply brief a September 17, 2015 Special
Administrative Segregation Review Committee Decision and a May 11,
9 A-4784-14T2
Although we find no merit to appellant's contention, we are
obliged to stress that prisoner appeals should be carefully
monitored to ensure that disciplinary sanctions do not undermine
an inmate's due process right to seek appellate review. Access
to appellate review should not be impeded by the very sanction the
inmate seeks to appeal. See McDonald v. Pinchak, 139 N.J. 188,
192-196 (1995); Meija v. N.J. Dep't of Corrs., 446 N.J. Super.
369, 372 (App. Div. 2016).
Affirmed.
2016 Management Control Unit Review Committee Decision indicating
that appellant was removed from administrative segregation in 2015
and returned to the general population in 2016.
10 A-4784-14T2