SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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. 1:36

- 3.2 A

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David Nash , an inmate at Northern State Prison (NSP) , filed a property claim for lost, damaged or de stroyed 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.
A fter Nash was released from a stay in the Medical Clinic at NSP where
he had be en from May 13, 2018 , he filed an inmate claim for lost, damaged or destroyed personal property, known as F orm 943

- I

. The claim all eged 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 " S tate number. " His

c laim also alleged that other items had bee n 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 f

rom 2011 for the television

. Nash a lleged he submitted these receipts to the Claims Committee at NSP that wa s reviewing his claim , but the State claims these were not provided

.3 A

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An inventory of Nash's property , known as an IIS

- 1M Inmate Inventory
Sheet , was prepared wh en 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"). I t 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 rev iew." 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] ." T he Bu siness Manage r of NSP recommended

1 The copies provided by Nash and the State do not show the year

. T he form uses the date s "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 i nfirmary

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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 a nd 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.5 A

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POIN T 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 r eview 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 evidenc e 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:6 A

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- 18T4 1. Obtaining statements from the inma te, 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 regulation s also set forth factors to be considered in recommending

o r 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 ma de two claims: that an officer confiscated his televi sion 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 F orm 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.7 A

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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 state ments 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 claim ed that his cellmate took things when his proper ty 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.8 A

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10A: 2

- 6.1(b)(3). If the inventory was signed only on May 24, it simply would
be conf ir ming 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 no t comply with regulations N.J.A.C. 10A:2

- 6.1 and 6.2

. We are constrained t o remand this for an investigation consistent with the regulations. Reversed and remanded. We do not retain jurisdiction.