SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2947- 22

A GUS TIN GARCIA, Appellant,

v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

___________________________

Argued August 27, 2024

– Decided September 10, 202 4 Before Judges Gooden Brown and Marczyk.

On appeal from the New Jersey Department of Corrections. Agustin Garcia, appellant, argued the cause pro se. Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin , Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Christopher C. Josephson, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the 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- 2947

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Appellant Agustin Garcia, an East Jersey State Pris on (EJSP) inmate, appeals from final decisions by the New Jersey Depa rtment of Corrections (DOC) denying his requests for credit for wage dedu ctions from his inmate trust account, which deductions he claims are in excess o f the allowable amount and are impermissible. Specifically, Garcia appeals from denials dated Febr uary 28 and March 14, 2023. 1 We affirm. By way of background, N.J.A.C. 10A:6-2.7(h) authori zes DOC to deduct payment for photocopying legal materials directly f rom a non-indigent inmate's

trust account. 2 If the balance in the non -indigent inmate's account is overdrawn or insufficient to pay the cost of photocopying leg al materials , the correctional facility shall "[ c]harge the nonindigent inmate's account the amount owed the correctional facility," N.J.A.C. 10A:6-2.7(c)(2) , and be reimbursed by "[r]emov[ing] from the nonindigent inmate's account any amount of funds in excess of the one[-]time monthly amount of $15.00 a fter deductions to pay court

1 In an amended notice of appeal filed July 19, 2023, Garcia added a DOC response dated May 10, 2023. However, the May 10, 2023, response was neither the subject of an administrative appeal, included i n the statement of items comprising the record on appeal, see R. 2:5 -4(b), nor the subject of a motion to supplement the administrative record, see R. 2 :5 -5(b). W e therefore decline to consider it.

2 N.J.A.C. 10A:6-2.5(a) requires DOC to "provide phot ocopies of legal material . . . to inmates at the rate of $.10 per page[.]"3 A- 2947

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ordered penalty assessments, restitutions, fines or other revenue obligations[,]" N.J.A.C. 10A:6-2.7(h)(1).

In 2023, Garcia owed approximately $23,000 in legal photocopying loans. On February 25, 2023, Garcia submitted in inmate in quiry form stating:

This is to complain about the fact that since I sta rted working in [the] kitchen I never enjoyed one cent o f my earning bec[a]use instead of deducting the percenta ge dictated by 10A you are deducting 100% . . . , leav ing me with the[] $15.00 minimum I would receive whethe r I work or not. This violate [sic] my rights. Pleas e take corrective action retroactively. On February 28, 2023, an EJSP employee responded th at "[l]oans, fines, and/or obligations are paid back once funds are ava ilable. Payroll has a 33% charge to pay back loans, fines, and/or obligations ." In a grievance form of the same date, Garcia replied that the response was "in correct" because DOC could only deduct a maximum of 33% of the funds in his ac count to pay towards his obligations, including his photocopying loans. Garc ia stated that, instead, DOC was "deducting 100% " throughout his "entire period of . . . employment as [a] kitchen worker," leaving him a "monthly balance of $15.00." He requested a "recalculation" and a "credit" for the allegedly exce ssive deductions. On March 13, 2023, Shaletta Smalls, another EJSP employee, r esponded to Garcia's grievance, stating that "[ t]he Business Office doesn't control the automatic4 A- 2947

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deductions for [ his ] obligations" and "[o]nce all [ his ] obligations are fulfilled [ he ] won't have any deductions." On March 14, 2023, Garcia administratively appealed the initial response, reasserting his claim that DOC could only deduct a maximum of 33% of the funds in his account to pay his obligations, includ ing his photocopying loans, and that the deduction of "100% of [ his ] salary or wages month after month" violated "10A and also . . . [ his ] equal protection [rights] under the law guaranteed by U.S. and New Jersey constitutions, wh ereas, [he was] treated different to prisoners or individual[s] similarly s ituated." He again requeste d that DOC credit his account "retroactively." On the same date, Smalls responded to Garcia's appeal, stating:

After reviewing your account, we noticed that you a re paying back loans for copies. All loans are paid b ack at 100% at the time you receive funds in your accou nt. Please review your statement carefully and you will see the loans and fines being deducted. In this ensuing appeal, Garcia reprises his claim t hat DOC has been deducting an excessive amount of funds from his inmate trust account and seeks

retroactive credits. We find no merit to Garcia's contentions. Our role in reviewing an administrative agency deci sion is limited. Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 18 6, 190 (App. Div. 2010); In5 A- 2947

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re Taylor, 158 N.J. 644, 656 (1999). Such decision s carry with them a "presumption of reasonableness[,]" Lisowski v. Boro ugh of Avalon, 442 N.J. Super. 304, 330 (App. Div. 2015), (citation omitted ), and will be disturbed "only if it is arbitrary, capricious or unreasonable or i t is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). "The burden of demonstrating that the agency 's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action." In re Arenas, 385 N.J. Sup er. 440, 443-44 (App. Div.

2006 ). To determine whether an agency action is arbitrary, capricious, or unreasonable, we consider:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agen cy follow the law; (2) whether the record contains substantial evidence to support the findings on whi ch the agency based its action; and (3) whether in app lying the legislative policies to the facts, the agency c learly erred in reaching a conclusion that could not reaso nably have been made on a showing of the relevant factors

. [In re Carter, 191 N.J. 474, 482 (2007) (quoting Ma zza v. Bd. of Tr., Police & Firemen's Ret. Sys., 143 N. J. 22, 25 (1995)).] As such, we are not "relegated to a mere rubber-sta mp of agency action," but rather "are constrained to engage in a 'careful and principled consideration of6 A- 2947

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the agency record and findings.'" Williams v. Dep' t of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (citations omitted). We defer to the agency's interpretation of regulati ons that are "within its implementing and enforcing responsibility[.]" Utley v. Bd. of Review, 194 N.J. 534, 551 (2008) (quoting In re Appeal by Progressiv e Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). However, we are "in no way bound by the agency's . . . determination of a strictly legal is sue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Thus, we ma y intervene when an agency's decision rests upon a misinterpretation of a regula tion. Mazza, 143 N.J. at 25. Here, we discern no basis to intervene. DOC's denial of Garcia's requests was neither arbitrary nor capricious but comported with the law. Contrary to Garcia's claim, there is no limitation on the perce ntage of funds DOC may deduct from an inmate's account to pay outstanding legal copying loans as long as $15 per month remains in the inmate's account. See N.J.A.C. 10A:6-2.7(h). 3

3 N.J.A.C. 10A:6-2.7(h) applies to non-indigent inm ates like Garcia. In his merits brief, Garcia acknowledges that he is not an indigent inmate, having earned wages "working in [ the ] kitchen." See N.J.A.C. 10A:1-2.2 (defining an "indigent" inmate as one "who has no funds in his or her acc ount and is not able to earn inmate wages due to prolonged illness or an y other uncontrollable circumstances, and who has been verified as having no outside source from which to obtain funds" ). However, in his reply brief, for the first time on appeal, Garcia claims indigency. It is improper for a party to use a reply brief to raise7 A- 2947

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In his repeated submissions to DOC, Garcia concedes that he was only left with a "monthly balance of $15.00." Although DOC is limited in the amount it can deduct from an inmate's account to pay towards cert ain debts and obligations, no such limitation applies to legal copying loans. See N.J.S.A. 30:4-92 (limiting

withdrawals from inmate accounts "in an amount not to exceed one -third of the inmate's total income, as may be required to pay an y assessment, restitution or fine ordered as part of any sentence," or "to pay costs and fees charged or owing " for any medical care provided during the inmate's i ncarceration in accordance with N.J.S.A. 30:7E-2). For the first time on appeal, Garcia asserts that D OC retaliated against him for complaining about his deductions by removin g him from his prison job and changing his housing status. 4 He also claims DOC violated his due process rights by providing untimely and unresponsive respo nses to his inquiry and grievance. "Normally, we do not consider issues no t raised below at an administrative hearing." In re Stream Encroachment Permit, Permit No. 0200-

an issue for the first time or enlarge an argument asserted in the moving brief. See, e.g. , State v. Smith, 55 N.J. 476, 488 (1970); L.J. Zucca , Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (A pp. Div. 2014).

4 Notably, included in Garcia's appendix is his voluntary "resign[ation] from [ his ] kitchen job detail" because of medical conditions and to facilitate a housing "relocation."8 A- 2947

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04 -0002.1 FHA, 402 N.J. Super. 587, 602 (App. Div. 20 08) (citing Br yan v. Dep't of Corr., 258 N.J. Super. 546, 548 (App.Div.1 992) ). Generally, we decline to consider such issues unless they go to jurisdict ion or concern matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 ( 1973) (citation omitted). Neither is implicated here. Even if we considered the arguments , we are satisfied Garcia received all due process pro tections to which he was entitled, and his claims to the contrary are unsupported. To the extent we have not addressed any of Garcia's arguments, it is because they are without sufficient merit to warran t discussion in a written opinion. R. 2:11 -3(e)(1)(E).

Affirmed.