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 defendant 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 victim of sexual assault and because 

records related to alleged victims of sexual offenses 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NOT FOR PUBLICATION WITHOUT THE 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 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.
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, Deputy 

Attorney General, on the brief). 

PER CURIAM 

 Plaintiff M.R. appeals from the following Law Division orders: the order 

dated August 4, 2021, denying plaintiff's motion for leave to file a third amended 

complaint; the order dated January 21, 2022, dismissing plaintiff's third 

amended complaint as to defendant Darcella Patterson Sessomes; the order dated 

March 4, 2022, denying plaintiff's motion for reconsideration of the January 21, 

2022 order; and the order dated November 14, 2022, granting summary 

judgment to defendant New Jersey State Department of 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, the DOC placed plaintiff in 

Columbus House, a Residential Community Reintegration Program (RCRP) in

Trenton. Plaintiff began working at a local McDonald's under the work release 
3 A-1259-22

program at Columbus House. Six months later, plaintiff reported to members of 

the Columbus House administration that over the course of the prior four 

months, her manager at McDonald's had been harassing and sexually assaulting

her. 

 That same day, the director of Columbus House reported plaintiff's 

complaint to the police. Detectives from the Lawrenceville Police Department 

interviewed plaintiff at Columbus House and then brought 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 Assistant 

Superintendent of the DOC's Office of Community Programs, and that office 

notified defendant Sessomes, who was the DOC's Assistant Commissioner 

overseeing programs and community services. Sessomes made the decision to 

administratively return2

 plaintiff to Edna Mahan that day based on the gravity 

2

 A nondisciplinary "administrative return" is the DOC'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 provide a more 

comprehensive list of reasons for return, including "[t]he need for an 

investigation by the Special Investigations Division [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 transfer contained a nonexhaustive, 

"includ[ing], but . . . not limited to" list which nevertheless authorized plaintiff's 

transfer. 
4 A-1259-22

of the incident, the DOC's obligation to protect plaintiff, and the DOC's need to 

launch its investigation into the allegations. 

Upon her arrival at Edna Mahan, plaintiff was evaluated because she 

reported experiencing nightmares and expressing thoughts of suicide and selfharm. She was placed on constant observation status 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 of several administrative 

inquiries via the DOC's electronic inmate remedy system, 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 plaintiff 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 complaint 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 Law Against Discrimination 

(LAD), N.J.S.A. 10:5-1 to -50. Plaintiff filed an amended complaint 
5 A-1259-22

supplementing count ten to indicate the DOC was a place of public 

accommodation for purposes of the LAD. Plaintiff filed a second amended 

complaint adding John/Jane Doe defendants in certain 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 retaliation. 

Plaintiff then filed a motion for leave to file a third amended complaint, 

seeking to add claims for deprivation of the doctrine of fairness and rightness 

(counts eleven through sixteen); deprivation of or interference with compliance 

with an agency's regulations (counts seventeen through twenty); and declaratory 

relief deeming the DOC's regulations unconstitutional 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 counts 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 invalid, the trial court found it 

did not have jurisdiction over these claims. Citing DeNike v. Bd. of Trs., 62 

N.J. Super. 280, 291 (App. Div. 1960), the court determined these challenges 

must be brought in the Appellate Division. The court further found the 
6 A-1259-22

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 four 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 plaintiff's federal "due 

process liberty interest" rights by returning her to 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 violation of a well-established 

right secured by the Constitution or laws of the United States and also must show 

that the violation was caused by a person acting under 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 liberty interest in particular 

modes, places or features of custody and confinement," and therefore plaintiff 

was unable to show a "well-established liberty interest in the work release 

program." Because plaintiff's claim was "not predicated upon a well-established 

right, liberty interest, property interest or constitutional guarantee, it fail[ed] as 
7 A-1259-22

a matter of law." The court further found the DOC's promulgation of regulations 

creating "procedural structures governing prison practices does not necessarily 

create a protected liberty interest," and here, the regulations 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 summary 

judgment as to count ten, finding 

there [wa]s no genuine dispute that the DOC had 

legitimate non-retaliatory reasons for administratively 

returning plaintiff to the correctional facility. And 

under the burden shifting analysis, the plaintiff cannot 

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 complaint 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 II 
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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 VI 
9 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 AS 
10 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 plaintiff'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 Urb. 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 granting 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) (quoting Kernan, 154 N.J. at 

456-57). In exercising its discretion, a court must engage in "a two-step process: 

whether the non-moving party will be prejudiced, and whether granting the 

amendment would nonetheless be futile." Ibid. The question of futility is 

"whether the amended claim will nonetheless fail and, hence, allowing the 

amendment would be a useless endeavor." Ibid.

 The trial court denied the motion in part because it found the amendments 

to the complaint challenged a final administrative decision of a DOC officer, 

which must be brought in the Appellate Division. Rule 2:2-3(a)(2) establishes 
11 A-1259-22

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 . . . except 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 officer, unless the interest of 

justice requires otherwise." 

 It is unclear from the record before us whether Sessomes's decision to 

return plaintiff to Edna Mahan was a final agency decision, or if plaintiff had a 

right of further review of that decision. The record 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 indicates 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 Edna Mahan. If Sessomes's 

decision was final, the trial court correctly determined any challenge to it must 

lie by way of appeal pursuant to Rule 2:2-3. 

 Plaintiff, however, contends Sessomes's decision was not final and 

therefore the trial court had jurisdiction. This argument fails because it contorts 

the requirement of the rule. An appeal as of right under Rule 2:2-3 is not 
12 A-1259-22

"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 remedy 

system "must be utilized and fully exhausted prior to an inmate filing any legal 

action regarding information requests, issues, concerns, and/or complaints." If, 

as plaintiff suggests, Sessomes's decision did not constitute the final agency 

decision, nothing in the record suggests plaintiff exhausted 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 Sessomes's decision does not 

then give rise to jurisdiction in the Law Division. Rather, she must exhaust 

administrative remedies in order to challenge a final agency decision, unless she 

is able to demonstrate 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 decision, which stated 

"the new claims . . . are premised on the same arguments and allegations 

previously adjudicated," and argues the court incorrectly decided the motion 

because none of plaintiff's claims had been adjudicated at that point. We 
13 A-1259-22

recognize that the trial court may have inaccurately recollected the procedural 

history of the case; however, the denial of plaintiff's motion is well-supported 

in the remainder of the court's decision. 

 The majority of plaintiff's contentions before the trial court and on appeal 

are grounded in her assertion that she had a liberty interest in remaining at an 

RCRP. Because the foundation of her argument is wholly unsupported in 

binding jurisprudence, her claims fail. "We have recognized that 'halfway house 

placement does not involve a liberty interest giving rise to due process rights.'" 

Shabazz v. N.J. Dep't of Corrs., 385 N.J. Super. 117, 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 setting 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 well. In Asquith v. Dep't 

of Corrs., the Third Circuit noted that while inmates assigned to an RCRP have 

greater liberty in their restriction of movement, the restrictions that remain on 

an inmate in RCRP placement "amount to institutional confinement" and 
14 A-1259-22

therefore removal of an inmate does "not trigger the protections of the Due 

Process Clause." 186 F.3d 407, 411 (3d Cir. 1999). 

With this in mind, we turn to the issue of qualified 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 established 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 sufficiently clear that a 

reasonable official would understand that what he is doing violates that right[] 

. . . in the light of pre-existing law the unlawfulness must be apparent." 

Anderson v. Creighton, 483 U.S. 635, 640 (1987). 

A court's "first inquiry must be whether a constitutional right would have 

been violated on the facts alleged; second, assuming the violation is established, 

the question whether the right was clearly established 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 of 
15 A-1259-22

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 process violated a clearly 

established right. Because plaintiff's proposed amended complaint failed to 

state a claim, it would be futile to permit the amendment. 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 afforded 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 to parole release to her 

assignment in an RCRP, we decline to do so. 

 Lastly, we address plaintiff's claim that the DOC retaliated against her for 

protected conduct, which was dismissed by the trial court. We review a ruling 

on summary judgment de novo, applying the same legal standard as the trial 
16 A-1259-22

court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). The court must decide 

whether "there is [a] genuine issue as to any material fact" when the evidence is 

"viewed in the light most favorable to the non-moving party." Davis v. 

Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (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, if any, show that there is no 

genuine issue as to any material fact challenged and that the moving party is 

entitled to a judgment or order as a matter of law." 

 To establish a prima facie case of retaliation under 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 protected activity and the 

adverse consequence. Victor v. State, 203 N.J. 383, 408-9 (2010). 

McDonnell Douglas Corp. v. Green established the burden-shifting 

framework for retaliation claims under the LAD. 411 U.S. 792, 802 (1973). If 

a plaintiff establishes a prima facie case for retaliation, the burden then shifts to 

the defendant to show "nondiscriminatory reasons," ibid. and after doing so, the 
17 A-1259-22

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 protected activity by 

reporting her supervisor's criminal conduct and that 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 pretextual. 

We agree with the trial court's determination the DOC's reasons for 

administratively returning plaintiff were "consistent with and substantiated by 

both the documents and testimony produced in the case." Although the 

administrative code provision directly pertaining to this situation was not yet in 

existence, it is beyond dispute prison administrators 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 

those reasons is "weak, implausible, inconsistent, incoherent or contradictory." 

See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Because plaintiff did
18 A-1259-22

not articulate any facts demonstrating these reasons were pretextual or create 

any issue of disputed fact requiring a jury's determination, 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 the standard in Rule 2:10-2, we

"decline to consider questions or issues not properly presented to the trial court 

when an opportunity for such a presentation is available." 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 the trial court's 

decisions.

To the extent we have not expressly addressed any issues 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.