                                NOT FOR PUBLICATION WITHOUT THE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-5620-17T1

CARL NORMAN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted October 31, 2019 – Decided November 21, 2019

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Carl Norman, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Rachel Simone Frey, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Plaintiff Carl Norman appeals from the July 11, 2018 decision of the

Department of Corrections (DOC) denying his request for a reduction in custody

status from gang minimum to full minimum.          We reverse and remand for

reconsideration of Norman's administrative appeal.

                                        I.

      Norman is incarcerated at South Woods State Prison (SWSP) serving a

thirty-one-year sentence with a thirty-year period of parole ineligibility for a

1990 murder. The victim died of a brain injury and asphyxiation after being

struck on the head with a wooden statue and strangled with an extension cord.

      In June 2018, the SWSP Institutional Classification Committee (ICC) 1

denied Norman's request to reduce his custody classification from gang

minimum custody status to full minimum custody status. 2 Although DOC's


1
   The ICC is authorized to "[r]eview . . . inmate applications for change in
custody status . . . ." N.J.A.C. 10A:9-3.1(a)(3). It is comprised of the
administrator, associate administrator, or assistant superintendent; director of
education; social work supervisor; correction major; supervising classification
officer; or the designees of those officials. N.J.A.C. 10A:9-3.2(a)(1) to (5).
2
  An inmate assigned to gang minimum custody "may be assigned to activities
or jobs which routinely require them to move outside the security perimeter of
the correctional facility, but on the grounds of the facility and under continuous
supervision of a custody staff member, civilian instructor or other employee
authorized to supervise inmates." N.J.A.C. 10A:9-4.3(d). An inmate assigned
to full minimum custody status can be assigned to "[w]ork details, jobs or
                                                                       (continued)
                                                                          A-5620-17T1
                                        2
reclassification tool, see N.J.A.C. 10A:9-2.2(a), indicated Norman was suitable

for either gang or full minimum custody status, the ICC denied his request for

full minimum custody status based on the field account of Norman's crime,

which the ICC determined involved an "extreme level of violence . . . ."

      Norman appealed the ICC decision to the Administrator of SWSP. He

argued the ICC's written decision relied on an improper factor and contradicted

what he was told when he appeared before the committee.           According to

Norman, an ICC member told him his request was denied solely because he had

been convicted of murder.

      An SWSP official, whose title is not readily apparent from the record,

responded to Norman's appeal with a written description of what the ICC

considered when it made its decision.      The response did not address the

substance of Norman's appeal. The following day, Norman submitted a second

appeal, arguing the response he received did not address his substantive claims.

      On July 11, 2018, the Administrator of SWSP issued the following

response to Norman's second appeal:

            Per your Progress Notes you were denied due to Field
            Account of your present offense/extreme violence in

programs outside the main correctional facility, (on or off the grounds of the
facility) with minimal supervision; and/or . . . [a] satellite unit or minimum
security unit." N.J.A.C. 10A:9-4.3(e).
                                                                           A-5620-17T1
                                       3
            commission of this offense. Please note that I []as the
            Administrator have no authority to override a denial by
            the ICC. As such you[r] appeal is denied. Please
            consider this your final appeal at this level.

      This appeal followed. Norman makes the following arguments for our

consideration:

            THE DOC DECISION TO DENY APPELLANT FULL
            MINIMUM CUSTODY STATUS WAS ARBITRARY,
            CAPRICIOUS      AND      UNREASONABLE,
            UNSUPPORTED BY CREDIBLE EVIDENCE IN
            THE RECORD, AND NOT FAIRLY RENDERED.

            A. THE DOC DECISION MISREPRESENTS THE
            FACTS SPECIFIC TO NORMAN.

            B. THE DOC FAILED TO PROVIDE REASONING
            FOR THE DENIAL.

            C.  THE DOC FAILED TO CONSIDER ALL
            FACTORS.

In his reply brief, Norman argues:

            THE RESPONSE JUSTIFICATION FOR DENYING
            NORMAN FULL MINIMUM CUSTODY DOES NOT
            COMPORT WITH STATE LAW AND SHOULD
            THEREFORE BE VACATED. 3

3
   While this appeal was pending, the ICC undertook what it described as a
"routine yearly review" of Norman's custody status. The ICC denied Norman's
request for full minimum custody status. According to Norman, an ICC member
told him regardless of any of the regulatory factors or favorable results of the
reclassification tool, the ICC considers Norman ineligible for full minimum
custody because he was convicted of murder. The June 28, 2019 decision of the
                                                                    (continued)
                                                                        A-5620-17T1
                                       4
                                       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., 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).

      The "[c]lassification of prisoners and the decision as to what privileges

they will receive rests solely within the discretion of the Commissioner of the

[DOC]." Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 30 (App. Div. 2001).

An inmate has no liberty interest in a particular custody level. See Hluchen v.


ICC states full minimum custody was denied based on the field account of
Norman's crime. We granted Norman's motion to supplement the record with
the June 28, 2019 ICC decision and his account of what transpired at the ICC.
                                                                         A-5620-17T1
                                       5
Fauver, 480 F. Supp. 103, 108 (D.N.J. 1979). However, DOC's decision to deny

reduced custody status must not be arbitrary, capricious, unreasonable, or

unsupported by credible evidence in the record. Henry v. Rahway State Prison,

81 N.J. 571, 579-80 (1980).

      Under DOC regulations, "[c]hanges in inmate custody status within a

particular correctional facility shall be made by the [ICC]." N.J.A.C. 10A:9-

4.4(a). The ICC applies criteria set forth in the regulations and the "objective

classification instrument score . . . to determine whether an inmate is eligible

for reduced custody consideration." N.J.A.C. 10A:9-4.1(b).

      In considering whether to reduce an inmate's custody status, the ICC "shall

take into consideration all relevant factors." N.J.A.C. 10A:9-4.5(a). Those

factors are: (1) "[f]ield account of the present offense;" (2) "[p]rior criminal

record;" (3) "[p]revious incarcerations;" (4) "[c]orrectional facility adjustment;"

(5) "[r]esidential community program adjustment;" (6) "[t]he objective

classification score;" (7) "[r]eports from professional custody staff;" (8) "[a]

conviction for a present or prior offense that resulted in a life sentence;" and (9)

"[a]ny reason which, in the opinion of the Administrator and the ICC, relates to

the best interests of the inmate or the safe, orderly operation of the correctional

facility or the safety of the community or public at large." N.J.A.C. 10A:9-


                                                                            A-5620-17T1
                                         6
4.5(a)(1) to (9). Absent an express regulation to the contrary, the nature of an

inmate's conviction, standing alone, may not permanently disqualify the inmate

from consideration for full minimum custody status. Smith, 346 N.J. Super. at

32.

      DOC regulations do not address whether a decision by the ICC denying a

reduction in custody status may be appealed to the Administrator of the

correctional facility.   As noted above, the SWSP Administrator informed

Norman he lacked authority to reverse a decision by the ICC to deny full

minimum custody status.     However, DOC recently informed this court the

Administrator of SWSP "has the authority to review and approve/disapprove any

custody status recommended by the [ICC]." Smith v. N.J. Dep't of Corr., No.

A-4552-17 (App. Div. Nov. 4, 2019) (slip op. at 4).

      In addition, in February 2019, DOC "implement[ed] a rule exemption

procedure to make clear that the Administrator or designee has the authority to

review and approve/disapprove the ICC recommendations as to custody status,

and that any denials of [f]ull [m]inimum are reviewed and approved/disapproved

by Central Office [committee]." 4 Id. at 5. DOC also informed the court it


4
  It appears it has been DOC's practice in some instances to permit an inmate to
appeal from an Administrator's review of an ICC custody status determination
                                                                     (continued)
                                                                        A-5620-17T1
                                       7
intended to commence rulemaking to codify internal appeal procedures. Id. at

6. We held "DOC acknowledges – and we agree – that the classification review

procedures utilized by the Administrator and the [COC] require rulemaking."

Id. at 11. We directed DOC to codify within 120 days the procedures and

standards used in their review of classification decisions. Id. at 11-12.

      The Administrator's rejection of Norman's appeal contradicts DOC's

interpretation of his authority to review the ICC's decision. In addition, the

absence of regulations establishing the procedures, standards, and authority of

COC to review custody decisions did not put Norman on notice of what appears

to be a further available avenue of administrative review, should he be

unsuccessful before the Administrator. For those reasons, we reverse the July

11, 2018 decision of the Administrator and remand for the Administrator to

reconsider Norman's appeal of the ICC's decision. On reconsideration, the

Administrator shall consider all factors set forth in N.J.A.C. 10A:9-4.5(a)(1) to

(9) and other applicable regulations. In addition, DOC shall notify Norman of

any available review by COC and the procedures for appealing to COC. Norman




to the Central Office Committee (COC). The Department's regulations do not
define the COC or its authority. We offer no opinion with respect to whether an
exhaustion of administrative remedies requires an appeal of a custody status
decision to COC.
                                                                            A-5620-17T1
                                        8
shall remain at his current custody status while proceedings on remand are

pending, unless reduced by the agency.

      Reversed and remanded for proceedings consistent with this opinion. We

do not retain jurisdiction.




                                                                     A-5620-17T1
                                     9
