### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO

. A-1259- 22 M.R., 1 Plaintiff-Appellant,

v. SMOLAR GROUP, INC., and MARCO LEON-CONDO, Defendants, and
DARCELLA PATTERSON SESSOMES and STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS, Defendants-Respondents.

_____________________________

Submitted March 12, 2024

– Decided May 10, 2024

1 Although the outcome of criminal charges brought against defenda nt Marco Leon-Condo is not indicated in the record before us , we use initials to refer to plaintiff to protect her privacy as an alleged vict im of sexual assault and because records related to alleged victims of sexual offens es are excluded from public access. See R. 1:38 -3(c)(12). NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1259

- 22 Before Judges Gooden Brown and Puglisi. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L

- 1891

- 19. Peter M. Kober, attorney for appellant (Kober Law Firm, LLC, attorney; Peter M. Kober, on the briefs ). Matthew J. Platkin, Attorney General, attorney for respondents (Sookie Bae-Park, Assistant Attorney General, of counsel; Katherine Ellen Chrisman, Depu ty Attorney General, on the brief).
PER CURIAM Plaintiff M.R. appeals from the following Law Divisi on orders: the order dated August 4, 2021, denying plaintiff's motion for leave to fi le a third amended complaint; the order dated January 21, 2022, dismis sing plaintiff's third amended complaint as to defendant Darcella Patterso n Sessomes; the order dated March 4, 2022, denying plaintiff's motion for recon sideration of the January 21, 2022 order; and t he order dated November 14, 2022, granting summary judgment to defendant New Jersey State Department o f Corrections (DOC) and dismissing plaintiff's complaint with prejudice. Plaintiff , a former DOC inmate, was incarcerated at Edna Mahan Correctional Facility for Women. In March 2018, th e DOC placed plaintiff in Columbus House, a Residential Community Reintegrati on Program (RCRP) in Trenton. Plaintiff began working at a local McDona ld' s under the work release3 A- 1259

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program at Columbus House. Six months later, plain tiff reported to members of the Columbus House administration that over the course of the prior four months, her manager at McDonald' s had been harass ing and sexually assault ing he r. That same day, the director of Columbus House repo rted plaintiff's complaint to the police. Detectives from the Lawrenceville Poli ce Department interviewed plaintiff at Columbus House and then br ought her to the station to provide a statement. Columbus House suspended its work release program at that McDonald' s location. The director of Columbus House also notified the As sistant Superintendent of the DOC's Office of Community Pro grams, and that office notified defendant Sessomes, who was the DOC 's Assistant Commissioner overseeing programs and community services. Sessom es made the decision to administrative ly return 2 plaintiff to Edna Mahan that day based on the grav ity

2 A nondisciplinary "administrative return" is the D OC ' s process for returning an inmate from an RCRP to a correctional facility. N. J.A.C. 10A:20-4.42. This provision was amended effective October 2023 to pro vide a more comprehensive list of reasons for return, including "[t]he need for an investigation by the Special Investigations Divisio n [SID] of an incident involving, or allegedly involving, the inmate ." N.J.A.C. 10A:20-4.42(a)(6). The version in effect at the time of plaintiff's tr ansfer contained a nonexhaustive, "includ[ing], but . . . not limited to" list which nevertheless authorized plaintiff' s transfer.4 A- 1259

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of the incident, the DOC 's obligation to protect plaintiff, and the DOC's n eed to launch its investigation into the allegations. Upon her arrival at Edna Mahan, plaintiff was evaluated because she reported experiencing nightmares and express ing thoughts of suicide and selfharm. She was placed on constant observation statu s for seventy-two hours. See N.J.A.C. 10A:1-2.2, :16-12.1 to -12.8. On April 22, 2019, plaintiff submitted the first o f several administrative inquiries via the DOC's electronic inmate remedy sy stem, asking about the status of her return to Columbus House. In all but one of the DOC's responses, plaintiff was advised she needed to "write to SID" to follow up on the status of its investigation. One of the responses indicated plai ntiff needed to "[w]rite RCRP/Community Program." On July 25, 2019, plaintiff was granted parole and released from incarceration. SID concluded its investigation on September 9, 2019. Shortly thereafter, plaintiff filed a ten-count co mplaint against the McDonald's franchise and the offending supervisor, the RCRP and employees of Columbus House, and the DOC. Count ten of the complaint alleged the DOC retaliated against defendant in violation of the La w Against Discrimination (LAD), N.J.S.A. 10:5-1 to - 50. Plaintiff filed an amended complaint5 A- 1259

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supplementing count ten to indicate the DOC was a p lace of public accommodation for purposes of the LAD. Plaintiff f iled a second amended complaint adding John/Jane Doe defendants in certai n counts including count four, which alleged a CRA claim for deprivation of or interference with rights , and count seven, which alleged a CRA claim for reta liation. Plaintiff then filed a motion for leave to file a t hird amended complaint, seeking to add claims for deprivation of the doctri ne of fairness and rightness (counts eleven through sixteen); deprivation of or interference with compliance with an agency's regulations (counts seventeen thro ugh twenty); and declaratory relief deeming the DOC's regulations unconstitution al as applied to plaintiff (count twenty-one). The amendments also sought to name Sessomes as a defendant on counts four, seven, eleven, thirteen, fifteen, seventeen and nineteen; and to name the DOC as a defendant on cou nts twelve, fourteen, sixteen, eighteen and twenty. On August 4, 2021, the court denied the motion. To the extent plaintiff sought to challenge a final decision, action or inaction of the DOC and to declare a regulation inv alid, the trial court found it did not have jurisdiction over these claims. Citin g DeNike v. Bd. of Trs., 62 N.J. Super. 280, 291 (App. Div. 1960), the court de termined these challenges must be brought in the Appellate Division. The court further found the6 A- 1259

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remainder of the amendments would be futile because Sessomes was entitled to qualified immunity. Although the court denied plaintiff's motion, on consent, she filed a third amended complaint that revised count fou r to add Sessomes as a defendant and changed the basis for the claim from CRA to 42 U.S.C. § 1983. With that amendment, count four alleged Sessomes violated pla intiff's federal "due process liberty interest" rights by returning her t o Edna Mahan without the opportunity for notice and a hearing. On January 21, 2022, the court granted Sessomes' s motion to dismiss the complaint. As explained in the court' s oral opinion on the record , "[i]n order to prove a 1983 claim, the plaintiff must allege a vio lation of a well-established right secured by the Constitution or laws of the Un ited States and also must show that the violation was caused by a person acting un der the color of state law." Citing Asquith v. Volunteers of Am., 1 F. Supp. 2d 405, 410 -12 (D.N.J. 1998) , the court noted inmates "do not have an inherent li berty interest in particular modes, places or features of custody and confinemen t," and therefore plaintiff was unable to show a "well-established liberty inte rest in the work release program." Because plaintiff's claim was "not predicated upon a well-established right, liberty interest, property interest or const itutional guarantee, it fail[ ed ] as7 A- 1259

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a matter of law." The court further found the DOC's promulgation of r egulations creating "procedural structures governing prison pr actices does not necessarily create a protected liberty interest," and here, the regul ations concerning transfer did not require any additional notice or hearing. The court also found plaintiff' s motion for reconsideration unavailing.
On November 14, 2022, the court granted the DOC's motion for sum mary judgment as to count ten, finding

there [wa]s no genuine dispute that the DOC had legitimate non-retaliatory reasons for administrati vely returning plaintiff to the correctional facility. And under the burden shifting analysis, the plaintiff c annot establish that the DOC's legitimate non-retaliatory reasons for being administratively returned to the correctional facility are mere pretext retaliation. Accordingly, the court dismissed plaintiff's compl aint with prejudice. Plaintiff appeals, arguing:

POINT I BECAUSE SESSOMES'[S] ORDER TO RETURN PLAINTIFF TO STATE PRISON WAS NOT A FINAL AGENCY DECISION, THE LAW DIVISION HAD JURISDICTION TO DECIDE PLAINTIFF'S CLAIMS AGAINST DEFENDANTS []DOC AND SESSOMES, AND FOR THE TRIAL JUDGE TO DECIDE OTHERWISE WAS ERROR.
POINT II8 A- 1259

- 22 BECAUSE THE NEW CLAIMS IN [PLAINTIFF]'S PROPOSED THIRD AMENDED COMPLAINT WERE NOT PREMISED ON THE SAME ARGUMENTS AND ALLEGATIONS THAT WERE PREVIOUSLY ADJUDICATED, DENIAL OF LEAVE TO AMEND BY THE TRIAL JUDGE WAS AN ABUSE OF DISCRETION. POINT III [PLAINTIFF] HAD A LIBERTY RIGHT IN CONTINUING AS AN RCRP RECIPIENT AT THE TIME OF HER RETURN TO STATE PRISON, AND FOR THE TRIAL JUDGE TO DECIDE OTHERWISE WAS ERROR. POINT IV BECAUSE [PLAINTIFF] HAD A LIBERTY RIGHT IN CONTINUING AS AN RCRP RECIPIENT AT THE TIME OF HER RETURN TO STATE PRISON, MINIMUM PROCEDURAL SAFEGUARDS WERE REQUIRED.
POINT V BECAUSE [PLAINTIFF]'S LIBERTY RIGHT IN CONTINUING AS AN RCRP RECIPIENT WAS CLEARLY ESTABLISHED AT THE TIME OF HER RETURN TO STATE PRISON, SESSOMES WOULD NOT BE ENTITLED TO QUALIFIED IMMUNITY FOR DEPRIVING HER OF THIS RIGHT, AND FOR THE TRIAL JUDGE TO DECIDE OTHERWISE WAS ERROR. POINT VI9 A- 1259

- 22 [PLAINTIFF]'S PROPOSED DEPRIVATION OF FUNDAMENTAL FAIRNESS CLAIMS AGAINST []DOC AND SESSOMES, CONNECTED TO HER RETURN TO STATE PRISON, STATED A CAUSE OF ACTION, AND THEIR DISALLOWANCE WAS AN ABUSE OF DISCRETION. POINT VII [PLAINTIFF]'S PROPOSED DEPRIVATION OF OR INTERFERENCE WITH COMPLIANCE WITH AN AGENCY'S OWN REGULATIONS CLAIMS AGAINST [] DOC, REGARDING HER RETURN TO STATE PRISON, STATED A CAUSE OF ACTION, AND THEIR DISALLOWANCE WAS AN ABUSE OF DISCRETION.
POINT VIII [PLAINTIFF] MADE A SUFFICIENT SHOWING OF ADVERSE ACTION BY [] DOC TO SATISFY THAT ELEMENT OF A PRIMA FACIE CASE OF RETALIATION, AND FOR THE TRIAL JUDGE TO DECIDE OTHERWISE WAS ERROR. POINT IX [PLAINTIFF] MADE A SUFFICIENT SHOWING OF CAUSAL CONNECTION BETWEEN HER PROTECTED ACTIVITY AND HER RETURN TO STATE PRISON TO SATISFY THAT ELEMENT OF A PRIMA FACIE CASE OF RETALIATION. POINT X [PLAINTIFF] MADE A SUFFICIENT SHOWING OF PRETEXT TO RAISE A JURY QUESTION UNDER THE MCDONNELL DOUGLAS FRAMEWORK AS10 A- 1259

- 22 TO WHETHER SESSOMES'[S] PURPORTED LEGITIMATE REASONS FOR RETURNING HER TO STATE PRISON WERE PRETEXT FOR RETALIATION FOR PROTECTED ACTIVITY, AND FOR THE TRIAL JUDGE TO DECIDE OTHERWISE WAS ERROR. We first address the trial court's order denying p laintiff's motion to file a third amended complaint, which we review for abuse of discretion. Port Liberte II Condo. Ass'n, Inc. v. New Liberty Residential Ur b. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014) (citing Kernan v. One Wash. Park Urb. Renewal Assocs., 154 N.J. 437, 457 (1998)). "' Rule 4:9 -1 requires that motions for leave to amend be granted liberally' and that 'the granti ng of a motion to file an amended complaint always rests in the court's sound discretion. '" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (qu oting Kernan, 154 N.J. at 456 -57). In exercising its discretion, a court must engage in "a two-step pro cess: whether the non-moving party will be prejudiced, an d whether granting the amendment would nonetheless be futile." Ibid. The question of futility is "whether the amended claim will nonetheless fail an d, hence, allowing the amendment would be a useless endeavor." I bi d. The trial court denied the motion in part because it found the am endments to the complaint challenged a final administrative decision of a DOC officer, which must be brought in the Appellate Division. R ule 2:2 -3(a)(2) establishes11 A- 1259

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a right of appeal to the Appellate Division "to review final decisions or actions of any state administrative agency or officer, and to review the validity of any rule promulgated by such agency or officer . . . ex cept that review pursuant to this subparagraph shall not be maintainable so long as there is available a right of review before any administrative agency or offic er, unless the interest of justice requires otherwise." It is un clear from the record before us whether Sessomes's decision to return plaintiff to Edna Mahan was a final agency d ecision, or if plaintiff had a right of further review of that decision. The reco rd reflects plaintiff filed administrative inquiries on April 22, 26, 28 and 30 , and May 6, 2019, asking about the status of her return to Columbus House. Although she was advised to write to SID, nothing in the record before us indic ates plaintiff made any further inquiry into the status of the investigation or her return to Columbus House, or challenged the initial decision to return her to Ed na Mahan. If Sessomes' s decision was final, the trial court correctly deter mined any challenge to it must lie by way of appeal pursuant to Rule 2:2-3. Plaintiff, however, contends Sessomes's decision w as not final and therefore the trial court had jurisdiction. This ar gument fails because it contort s the requirement of the rule. An appeal as of right under Rule 2:2 -3 is not12 A- 1259

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"maintainable so long as there is available a right of review before any administrative agency or officer , unless the interest of justice requires otherwise." Pursuant to N.J.A.C. 10A:1-4.4(d), the DOC 's inmate re medy system "must be utilized and fully exhausted prior to an inmate filing any legal action regarding information requests, issues, conc erns, and/or complaints." If , as plaintiff suggests, Sessomes's decision did not constitute the final agency decision , nothing in the record suggests plaintiff exhaust ed her administrative remedies under N.J.A.C. 10A:1-4.4. And contrary to plaintiff's contention, her failure to seek further administrative review of Se ssomes's decision does not then give rise to jurisdiction in the Law Division. Rather, she must exhaust administrative remedies in order to challenge a fin al agency decision, unless she is able to de monstrate the interests of justice requires review of an interim decision under Rule 2:2 -3. She has not done so here. The trial court also denied plaintiff's motion to amend based on its determination the amendment would have been futile because it failed to state a claim. Plaintiff focuses on one sentence in the court's de cision, which stated "the new claims . . . are premised on the same argu ments and allegations previously adjudicated," and argues the court incor rectly decided the motion because none of plaintiff's claims had been adjudic ated at that point. We13 A- 1259

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recognize that the trial court may have inaccuratel y recollected the procedural history of the case; however, the denial of plainti ff's motion is well-supported in the remainder of the court's decision. The majority of plaintiff's contentions before the tri al court and on appeal are grounded in her assertion that she had a libert y interest in remaining at an RCRP. Because the foundation of her argument is wh olly unsupported in binding jurisprudence, her claims fail. " We have recognized that 'halfway house placement does not involve a liberty interest giving rise to due proc ess rights. '" Shabazz v. N.J. Dep't of Corrs., 385 N.J. Super. 11 7, 124 (App. Div. 2006) (citing Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437, 464 (App. Div. 1997) ). This is so because "inmates in a halfway house sett ing remain in institutional confinement. The return of an inmate from a halfway house to a prison therefore does not impose an 'atypical' or 'significant' hardship on the inmate [] . . . when weighed against the 'ordinary incidents of prison life. '" Id. at 125, 127 (citing Sandin v. Conner, 515 U.S

. 472, 484 (1995)). This issue is beyond debate in federal court as we ll. In Asquith v. Dep' t of Corrs., the Third Circuit noted that while inmat es assigned to an RCRP have greater liberty in thei r restriction of movement, the restrictions that rema in on an inmate in RCRP placement "amount to institutiona l confinement" and14 A- 1259

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therefore removal of an inmate does "not trigger th e protections of the Due Process Clause." 186 F.3d 407, 411 (3d Cir. 1999). With this in mind, we turn to the issue of qualifie d immunity. "The doctrine of qualified immunity operates to shield ' government officials performing discretionary functions generally . . . from liability for civil damages insofar as their conduct does not violate clearly e stablished statutory or constitutional rights of which a reasonable person would have known. '" Morillo v. Torres, 222 N.J. 104, 116 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The contours of the right must be su fficiently clear that a reasonable official would understand that what he i s doing violates that right []

. . . in the light of pre-existing law the unlawfulness m ust be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
A court' s "first inquiry must be whether a constitutional rig ht would have been violated on the facts alleged; second, assumin g the violation is established, the question whether the right was clearly establis hed must be considered." Saucier v. Katz, 533 U.S. 194, 200 (2001). A trial judge and this court "should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of15 A- 1259

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the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009). We agree with the trial court' s determination Sessomes was entitled to qualified immunity for her decision to transfer plaintiff from the RCRP to Edna Mahan because nothing in that decision-making proce ss violated a clearly established right. Because plaintiff's proposed amended complaint fail ed to state a claim, it would be futile to permit the ame ndment. We also find no abuse of discretion in the court's denial of plaintiff's motion for reconsideration under Rule 4:49 -2. See Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021). We next turn to plaintiff' s assertions that her placement in an RCRP was akin to parole release and therefore should have been affor ded some procedural due process. The Third Circuit rejected this very contention under both federal and state jurisprudence, Asquith v. Dep't of Corrs , 186 F.3d at 411

- 12 , and we agreed with that analysis. Shabazz, 385 N.J. Super . at 127. While plaintiff urges us to extend the due process protections afforded t o parole release to her assignment in an RCRP, we decline to do so. Lastly, we address plaintiff's claim that the DOC r etaliated against her for protected conduct, which was dismissed by the trial court. We review a ruling on summary judgment de novo, applying the same lega l standard as the trial16 A- 1259

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court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). The court must decide whether "there is [a] genuine issue as to any material fac t" when the evidence is "viewed in the light most favorable to the non-movi ng party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2 014) (first quoting Rule 4:46 -2(c); and then quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Rule 4:46-2(c) provides that a motion for summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact challenged an d that the moving party is entitled to a judgment or order as a matter of law. " To establish a prima facie case of retaliation und er the LAD, a plaintiff must show that: (1) she was in a protected class; (2) she was engaged in protected activity; (3) thereafter, she was subject to an adverse consequence; and (4) there is a causal connection between the pr otected activity and the adverse consequence. Victor v. State, 203 N.J. 383 , 408-9 (2010). McDonnell Douglas Corp. v. Green established the bu rden-shifting framework for retaliation claims under the LAD. 41 1 U.S. 792, 802 (1973). If a plaintiff establishes a prima facie case for retaliatio n, the burden then shifts to the defendant to show "nondiscriminatory reasons," ibid. and after doing so, the17 A- 1259

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burden shifts back to plaintiff to " show . . . defendant's proffered reason is pretextual." K.J. v. Greater Egg Harbor Reg'l High Sch. Dist. Bd. of Educ., 431 F. Supp. 3d 488, 514 n.14 (D.N.J. 2019). Here, there is no question plaintiff engaged in a p rotected activity by reporting her supervisor's criminal conduct and tha t she was subject to an adverse action by being returned from an RCRP to a correctional facility. Plaintiff also concedes the DOC has met its burden by proffering a legitimate reason for plaintiff's return. The question is whether plaintiff demonstrated the
DOC ' s returning her to a correctional facility was pretex tual. We agree with the trial court's determination the D OC's reasons for administratively returning plaintiff were "consiste nt with and substantiated by both the documents and testimony produced in the case." Although the administrative code provision directly pertaining t o this situation was not yet in existence, it is beyond dispute prison administrato rs had the discretion to return an inmate from an RCRP. As articulated by Sessomes, the DOC's decision to transfer plaintiff was guided by concerns regarding her safety and mental health, and to commence the DOC's investigation of the allegations

. Nothing about th ose reasons is "weak, implausible, inconsistent, in coherent or contradictory." See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Because plaintiff d id18 A- 1259

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not articulate any facts demonstrating these reason s were pretextual or create any issue of disputed fact requiring a jury's deter mination, summary judgment was correctly granted to the DOC. Where plaintiff seeks to raise issues on appeal she did not raise below, we review those contentions under the plain error standard. "Relief under the plain error rule, Rule 2:10 -2, at least in civil cases, is discretionary and ' should be sparingly employed. '" Baker v. Nat'l State Bank, 161 N.J. 220, 226 (1999) (quoting Ford v. Reichert, 23 N.J. 429, 435 (1957)). Although we may consider allegations of error not raised below if it meets t he standard in Rule 2:10

- 2, we "decline to consider questions or issues not proper ly presented to the trial court when an opportunity for such a presentation is avai lable." J.K. v. N.J. State Parole Bd., 247 N.J. 120, 138 n.6 (2021) ( quoting State v. Robinson , 200 N.J. 1, 20 (2009) ). Given this standard, we discern no plain error in t he trial court' s decision s. To the extent we have not expressly addressed any i ssues raised by plaintiff, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.