                                NOT FOR PUBLICATION WITHOUT THE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.


                                                                          A-1396-18T4
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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.
                                                                               A-1396-18T4
                                          3
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.



                                                                        A-1396-18T4
                                       4
      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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                                       5
            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.
                                                                        A-1396-18T4
                                        6
      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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                                           7
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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