NOT FOR PUBLICATION WITHOUT THE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-0342-15T4
EDWARD L. DUNCAN,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted October 16, 2018 – Decided November 30, 2018
Before Judges Hoffman and Suter.
On appeal from the New Jersey Department of
Corrections.
Edward L. Duncan, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Kai W. Marshall-Otto,
Deputy Attorney General, on the brief).
PER CURIAM
Edward L. Duncan, 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 deemed his property
claim resolved by its reimbursement to him of $16.28 for a table fan. For reasons
that follow, we affirm.
Duncan was an inmate at Bayside State Prison (Bayside). He was
transferred to NSP in January 2014. He claimed items of his personal property
were lost or stolen during the transfer. Duncan filed an undated inmate claim
for lost, damaged or destroyed personal property. In section four of the form,
he claimed the loss of a beard trimmer, an AM/FM Walkman with Sony ear buds
and a fan.1 Although not listed as a missing item in section four, the form said
in section five, "Food Cosmetics (receipt forthcoming)." Duncan referenced a
"Bayside Inventory Sheet." He claimed that "most property, save Walkman"
was locked in his locker. Duncan alleged the prison used "inmate runners,"
which constituted an "inappropriate inventory process." The claim form
identified Duncan's cellmate as a person who "will explain."
1
Duncan's appendix on appeal includes a handwritten sheet titled "Section #4
Continued" that is not included in DOC's appendix. Duncan's addition lists food
and personal health care items, with an indicated total cost of $159.84.
A-0342-15T4
2
Duncan's claim was reviewed and recommended for denial because "[t]he
inventory sheet completed and signed by the officer state[d] that no beard
trimmer, [W]alkman or fan" was in Duncan's possession during inventory.
Duncan's witness, Stan Stanley, another inmate at Bayside, was questioned
about the allegation that inventory policies were being violated, but he
"confirmed via oral and written statement that he ha[d] not witnessed these
violations." Stanley's statement said he had "no knowledge of any inmate
packing up another inmate['s] property. In my current unit or any other unit I
live in." The claims investigator recommended denial of Duncan's claim
because the "[i]nvestigation revealed no negligence on the part of Bayside."
Duncan's claim was denied on March 19, 2014, and he appealed the denial.
See Duncan v. Department of Corrections, A-4053-13. On December 12, 2014,
we granted DOC's motion to remand the case. Duncan filed an inmate grievance
on January 20, 2015, seeking compensation in the amount of $159.84. DOC
staff recommended reimbursing Duncan for the fan because, in fact, it was listed
on the inmate inventory sheet that Duncan signed upon his transfer from Bayside
to NSP. Duncan's claim was resolved by refunding $16.28 for the fan. His claim
was denied for the other items because they were not shown on the inventory
sheet.
A-0342-15T4
3
In this appeal, Duncan argues DOC's final decision should be reversed
because the prison staff failed to comply with applicable regulations. He seeks
compensation for his property. Duncan asks to reverse DOC's denial because
its investigation was "not [im]partial" and because his witness was threatened
and intimidated by the staff. There is no merit to his arguments.
Review of an administrative agency's final decision is limited. Kadonsky
v. Lee, 452 N.J. Super. 198, 201-02 (App. Div. 2017). "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 In re Stallworth, 208 N.J. 182, 194 (2011)). We
are not, however, bound by the "agency's 'interpretation of a statute or its
determination of a strictly legal issue.'" Ibid. (quoting Mayflower Secs. Co. v.
Bureau of Secs., 64 N.J. 85, 93 (1973)).
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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4
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 . . . maintained by the
facility….
[N.J.A.C. 10A:2-6.1(b).]2
The regulation also sets forth factors to be considered in recommending or
disapproving a claim. See N.J.A.C. 10A:2-6.2. These include in part, whether
there was neglect by the facility, whether the inmate submitted sufficient
information about the items claimed and whether the claim was timely. Ibid.
We are satisfied DOC complied with the obligations imposed upon it by
these regulations. The record shows an investigation was conducted of Duncan's
claim. His listed witness was interviewed and provided a statement. On remand,
the inmate inventory sheet was reexamined. This is the sheet to be used "to
itemize all personal property in the inmate's possession upon admission, while
incarcerated and upon transfer." N.J.A.C. 10A:1-11.6(a). Duncan signed that
2
We cite to the regulation as it appeared when Duncan filed his claim. This
regulation was amended effective September 4, 2018. See 50 N.J.R. 1964(a)
(Sept. 4, 2018).
A-0342-15T4
5
form. The fan was listed among the items inventoried and he was reimbursed
for the fan.
Although Duncan complains he was not interviewed, he submitted an
undated "statement of occurrence" and an affidavit setting forth his arguments
for DOC's consideration. In addition, verification of lost property "may be made
by review of applicable documentation." N.J.A.C. 10A:2-6.1(b)(3). Duncan
complains that "house flunkies" (inmates) were used in the inventory process,
but his allegation was not supported by the witness he listed. Duncan claims
that witness was intimidated, but this is based on his submission of
unauthenticated letters. He criticized the inmate inventory sheet because it
states "not inventoried in the housing unit," but he does not dispute he signed
the inventory regardless of this notation. It is not required that the inventory be
conducted in the presence of the inmate although the regulation indicates it
should be "if possible." N.J.A.C. 10A:1-11.6(b).
This case is distinguishable from Barnes v. Sherrer, 401 N.J. Super. 172
(App. Div. 2008), cited by Duncan. In that case, there was no record that DOC
had undertaken any investigation of the inmate's claim for lost or destroyed
property. Id. at 179. There, we remanded with instructions that the agency
comply with N.J.A.C. 10A:2-6.1. Id. at 180.
A-0342-15T4
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In this case, DOC conducted the investigation required by administrative
regulations. We are satisfied there was substantial compliance with DOC's
regulations. We discern no basis to conclude that DOC's decision was arbitrary,
capricious or unsupported by credible evidence. Henry v. Rahway State Prison,
81 N.J. 571, 579-80 (1980).
Affirmed.
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