SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0856- 22 VAUGHN SIMMONS, Appellant,

v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

___________________________

Submitted September 25, 2024

– Decided October 3, 2024 Before Judges DeAlmeida and Puglisi. On appeal from the New Jersey Department of Corrections. Vaughn Simmons, appellant pro se. Matthew J. Platkin, Attorney General, attorney for respondent (Janet Greenberg Cohen, Assistant Attorn ey General, of counsel; Dorothy Rodriguez, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " 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- 0856

- 22

Appellant Vaughn Simmons appeals from the October 16 , 2023 final agency decision of the Department of Corrections (D OC) upholding the confiscation of videos he purchased through a DOC-a pproved inmate kiosk system for delivery by email. We affirm.
I. Simmons is an inmate at Northern State Prison. In March and April 2022, he ordered forty-three thirty-second videos through the JPay inmate kiosk system for delivery to him by email. According to Simmons, the videos depict

non -nude cultural dancing.
On Ju ly 15, 2022 , Simmons submitted an inquiry to DOC staff stating t hat he had not received the videos. Although he did not receive a confiscation notice
fr om DOC, JPay informed Simmons that the agency had confis cated the videos

. Simmons requested an explanation for the confiscati on and asked whether he would be compensated for the videos or have them re turned to him upon his release from incarceration. On July 22, 2022, a DOC Lieutenant informed Simmons in writing that the videos were confiscated because they "violated the [DOC] policy . . . of obscenity as well as the Terms and Conditions of Us e by JPay." The decision provided definitions of "obscene," "pornography," a nd "sexually explicit"3 A- 0856

- 22

materials, but did not provide an explanation of wh ere those definitions were obtained. The letter also informed Simmons that JP ay's Terms and Conditions of Use, which he agreed to follow, states that all ema ils and attachments will be monitored by DOC or JPay for compliance with DOC policies , and that inmates will not receive a refund for materials confiscated by DOC. On August 2, 2022, Simmons submitted an inmate gri evance form seeking compensation for the confiscated videos. He stated that: (1) DOC failed to provide him with a confiscation notice; (2) the con fiscation was "ethnic discrimination, cultural bias[,] and prejudice" and (3) he was being retaliated against because "non-nude videos " he previously purchased and received from JPay had been removed from his JPay account. On September 13, 2022, a DOC representative inform ed Simmons that his grievance ha d been previously answered.
On October 4, 2022, Simmons filed a request for assista nce with the DOC Ombudsman stating that DOC did not fully address hi s allegations of discrimination and retaliation. He alleged the con fiscation was discrimination against "African, African-American communities, Lat ino communities[,] and French Polynesian communities" because the dancing depicted on the videos is cultural.4 A- 0856

- 22

On October 11, 2022, a DOC employee responded by i nforming Simmons that his grievance had previously been answered. Simmons again filed a claim with DOC that his grie vance had not been adequately examined. On October 19, 2022, a DOC em ployee issued a final agency decision reiterating the basis for the confi scation stated in the July 22, 2022 letter. This appeal followed. On October 5, 2023, we granted DOC's motion for a remand. On October 16, 2023, the agency issued a revised fi nal agency decision, clarifying the basis for the confiscation . The agency stated that the videos were confiscated because they were "prurient ," "obscene," "pornography," and "sexually explicit, " within the meaning of N.J.A.C. 10A:18- 2.14(a)(6), and because they violate DOC's policy o n videos and attachments received through JPay. The decision elaborated tha t the videos each were comprised of thirty-seconds "consisting entirely of close-up shots of various women's buttocks," while the women we re "gyrating their hips in a manner that causes their buttocks to slap together during the e ntire video." Simmons argues that the decision should be reverse d because DOC : (1) did not provide him with a confiscation notice when it first confiscated the videos, depriving him of due process; (2) failed to compensate him for the5 A- 0856

- 22

videos; (3) violated his First Amendment rights; an d (4) retaliated against him by confiscat ing videos it previously permitted him to possess.
II. Review of an administrative agency's final decision is l imited. 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 a s a whole.'" Id. at 202 (quoting Stallworth, 208 N.J. at 194). We "defer t o the specialized or technical expertise of the agency charged with administration of a regulatory system." K.K. v. Div. of Med. Assistance & Health Servs., 45 3 N.J. Super. 157, 160 (App. Div. 2018) (quoting In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008)). The Legislatur e has provided for the broad exercise of DOC's discretion in all matters regardi ng the administration of a prison facility. Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). We have carefully reviewed the record in light of these precedents and find no basis on which to reverse the DOC's decisio n.6 A- 0856

- 22

With respect to the agency's failure to provide notice of its initi al confiscation of the videos, we note that incarcerat ed persons have a right to due process. Wolff v. McDonnell, 418 U.S. 539, 555-56 (1974). That right, however, is subject to limitations consistent with the importa nt State interest in maintain ing the orderly operation and security of prisons. O' Lone v. Shabazz , 482 U.S. 342, 348 (1987). "Due process is not a fixed concept . . . but a flexib le one that depends on the particular circumstances." Doe v. Poritz, 142 N.J. 1, 106 (1995) (citations omitted). Generally, "due process requires an opportunity to be heard at a meaningful time and in a meaningfu l manner." Ibid. DOC does not dispute that it failed to provide Sim mons with a notice of the confiscation, as required by N.J.A.C. 10A:3-6.1 (a). Nevertheless, it is clear from the record that Simmons ultimately became awar e of the confiscation an d had multiple opportunities to challenge the agency' s decision to block his receipt of the videos. The agency responded to Simmons's grievances with a n explanation of the basis of its decision to confisc ate the videos. We see no deprivation of due process. Nor do we find merit in Simmons's argument that he is entitled to compensation for the confiscated videos. The JPay Terms of Service, with which Simmons agreed to comply as a condition of us ing the system, expressly7 A- 0856

- 22

provides that a refund will not be given when an inmate orders a vi deo that violates DOC policy or regulations and is, as a res ult, confiscated. Simmons's claims of discrimination and retaliation are not supported by the record. A DOC regulation prohibits the possess ion of material that "[t]aken as a whole, appeals to a prurient interest in sex," "[l]acks, as a whole, serious literary, artistic, political, or scientific value, " or "[d]epicts, in a patently offensive way, sexual conduct . . . extreme close-u p photos , [and] any . . . manipulation . . . of the . . . buttocks . . . ." N.J.A.C. 10A:18-2.14(a)(6)(i)

– (iii). The regulation provides that "[v]iolation of any ru les regarding . . . electronic correspondence may result in non-delivery of the . . . el ectronic correspondence and/or attachment . . . and/or e-videos." N.J.A.C. 10A:18-2.14(a)(8). The videos, as described by DOC, depict manipulatio n of the buttocks in

a manner appealing to the prurient interest. Simmons produced no evidence that the videos, taken as a whole, have serious literary , artistic, political, or scientific value. Nor has he established that the DOC has app lied its regulation, which is clearly designed to maintain the orderly operation and security of the prison, in a discriminatory fashion based on his cultural background. See Miller v. California, 413 U.S. 15, 23 (1973) (holding that in mates do not have a8 A- 0856

- 22

constitutional right to possess obscene material th at lacks "serious literary, artistic, political, or scientific value."). 1 Simmons also failed to establish that the agency re taliated against him by confiscating previously approved videos. Once the ag ency became aware of the nature of the videos Simmons was ordering from JPay , it had the authority to review his prior video purchases stored in his JPay account to determine whether he was in possession of additional contraband. To the extent we have not specifically addressed a ny of Simmons's remaining arguments, we conclude they lack sufficie nt merit to warrant discussion in a written opinion. R. 2:11 -3(e)(1)(E). Affirmed.

1 The parties did not include a copy of the videos in their submissions to this court. We, therefore, have not viewed the videos a nd rely on the description of their contents provided by DOC , w hich Simmons does not dispute.