SUPERIOR COURT OF NEW JERSEY - APPELLATE DIVISION
No. A-5496-07T3
OJORE
LUTALO,
Appellant,
v.
DEPARTMENT OF CORRECTIONS,
Respondent..
APPELLANT'S BRIEF IN SUPPORT OF APPEAL
.Bruce I. Afran
10 Braebrun Drive
Princton, New Jersey 08540
609-924-2075
Attorney for Appellant
Table of Contents
Procedural Background
1
Concise Statement of Facts
2
Argument
13
Point One
13
DOC'S REFUSAL TO RETURN MR. LUTALO AFTER
THE DISMISSAL OR DOWNGRADING OF THE CHARGED OFFENSES
FOR WHICH HE WAS SENT TO THE MUC
VIOLATES PROCEDURAL AND SUBSTANTIVE DUE PROCESS
AND THIS COURT'S AUGUST 24, 2007 MANDATE.
Point Two
20
DOC CONTINUES TO HOLD MR. LUTALO IN MCU DETENTION NOT
ON THE BASIS OF ANY CHARGED OFFENSES BUT BECAUSE OF MR.
LUTALO'S POLITICAL BELIEFS AND AFFILIATIONS.
Conclusion
30
Table of Authorities
Avant v.
16
Cli
fford,
67
N.J.
(1975)
Balagun v.496
New Jersey
Dept. of Corrections
361 N.J.
Sup
Blackwell
v. Department
of Corrections,
er.
199
(App.Div.
2003)
348 N.J. Super. 117 (App.Div. 2002)
DeCamp v. New Jersey Dept. of Corrections,
386 N.J. Super. 631 (App.Div. 2006)
Greenholtz,
14
442 U.S.
at
Hewitt
v..
12
Helms,
McDonald v.
14
103 S.Ct. 864 (1983)
16
Pinchak,
Morrissey
13
v. Brewer,
408 U.S. 471 (1972)
139 N.J.
New Jersey State Parole Bd. v. Byrne,
93
188 N.J. 192 (1983)
28
Procunier v.
(1995)
Martinez,
416 U.S. 396 (1974)
Sostre v.
15
McGinnis,
442 F.2d 178 (2d Cir.)
(1989)
28
Thornburgh v.
Abbott,
490 U.S. 401, 416, n.14
Urbano v.
1971)
14
McCorkle,
334 F: Supp. 161 (D.N.J.
26
17
15
13
Wolff v.
16
McD
onnell,
N.J.A.C. 418
10
.U.S.
539
A:4-9.15(a)
(1974)
17
Procedural Background
Appellant Ojore Lutalo (Appellant or Mr. Lutalo) is an
inmate at New Jersey State Prison (NJSP).
On May 29, 2008 Mr. Lutalo applied for a change in his
housing classification in the Management Control Unit
(MCU). Pa4. The MCU is the segregation unit for persons
supposedly requiring intense supervision because o f
purported disciplinary needs.
Pa21-22; such persons are
housed in a 23-hour daily effective solitary confinement
regimen and are isolated from virtually all Other
prisoners. On May 29, 2008 the Department of Corrections
(DOC) denied Mr. Lutalo's request for reassignment out of
the MCU to an ordinary residence unit.
Pa4.
Mr. Lutalo
appealed such determination to the Commissioner but no
decision was issued on such administrative appeal within
the required ten day period provided under NJSP Internal
Management Procedure 13.105(IV)H(f) and, accordingly, the
M a y 2 9 , 2 0 0 8 d e n i a l of reassignment became a final
decision.'- Notice of appeal was filed on July 18, 2008.
Pal-2. This Brief followed.
No copy of the administrative appeal was presented to Mr.
Lutalo. Pursuant to DOC procedure the inmate submits
single copy of the administrative appeal and a copy is to
be delivered to him. Mr. Lutalo received no copy and none
appears in the Appellant's Appendix.
Concise Statement of Facts
Mr. Lutalo is a confined person at NJSP.
He is
scheduled to be released on February 10, 2009, his maximum
release date.
Pa3.
Since at least October 18, 2005, he
has been assigned to the MCU, Pa5-6, a housing unit at NJSP
for inmates or those whose conduct purportedly poses a
threat to the safety and security of the institution. Mr.
Lutalo has been assigned to the MCU detention center for
"dangerous" persons despite the fact that he holds a "2"
rating, the highest and most satisfactory behavioral rating
available to a New Jersey prisoner, reflecting his nearly
perfect disciplinary record during his nearly 25 years
confinement. Mr. Lutalo's DOC Criteria Record Sheet shows
no criminal acts during his entire confinement. PalO.
Beginning with his initial admission to NJSP in 1986,
Mr. Lutalo was assigned to the MCU. The MCU is a housing
unit at NJSP that places inmates in near -continuous
solitary confinement and imposes a strict no-contact
regime: MCU inmates generally eat alone in their cells,
have virtually no contact with other inmates, have no
contact visits with family; are shackled even when meeting
3
with counsel and, unlike other prisoners, meet with counselbehind a steel- cage with no direct access to their
attorneys, they "enjoy" exercise privileges alone in a
steel cage in the prison yard, and, on Mr. Lutalo's MCU
location, participate in no.prison programs of any kind.
Any contact with other inmates is permitted only in a steel
mesh cage called a "multi-purpose activity module" which,
is in fact, a steel cage placed in the center hall of the
Celiolock.
A description and photograph of the cage
appeared in the Bergen Record newspaper dated June 11,
Pa46.
Mr. Lutalo spent nearly 14 years in the MCU.
January 2002, he was released from the MCU to the general
population.
Pa6.
In the general population housing, Mr
Lutalo had a perfect disciplinary record where he earned.
his "2" rating.
On October 18, 2005, after approximately four years in
the general population, Mr. Lutalo was again assigned to
the MCU. Pa5-6. His return to the MCU was based upon socalled "asterick" offenses *.803/.206, Pa38, that he was in
possession of, "contraband" consisting of news articles and
pamphlets found in his cell and that he engaged in an
unauthorized "business" occupation and solicitation of
4
funds for various interest groups.
Pa12.
As set forth
'infra, each of these charges was downgraded, Pa15, or
dismissed outright by order of this Court on August 24,
2007 in A-3294-05.
Pa16-21.
Despite this Court's
dismissal of all charges for which Mr. Lutalo was reassigned to the MCU, the DOC has refused to return him to
the general population, more than one year after this
Court's order.
The charges against Mr. Lutalo that caused his return
to the MCU stem from a search of his cell on May. 19,2 005
and June 1, 2005 in which various written materials,
including handmade posters in various stages of completion
and a bag containing newspaper clippings used to produce
the posters, were seized.
Based on possession of the
materials seized, Mr. Lutalo was charged with disciplinary
infraction *.803/.206, attempting, aiding or planning
conduct that disrupts or interferes with the security or
orderly operations of the correctional facility.
On July.
11, 2005, he was found guilty administratively and received
a sanction of 15 days' detention, 365 days' administrative
segregation (i.e., placement in the MCU) and 365 days' loss
of commutation credit. Pa12.
On remand from this Court, such conviction . was
overturned and the *.803/.206 charges that Mr. Lutalo
acted in a manner "that disrupts or interferes with the
s e c u r i t y o r o r d e r l y operations of the correctional
facility" were downgraded to an on-the-spot correction to a
.210 charge of mere possession of unauthorized materials.
The *.803/.206 charges have been removed from his record.
Pals.
It is undisputed that the "contraband" found in his
cell in June 2005 charged as an *.803/.206 threat to the
"security or orderly operations of the correctional
facility" consisted entirely of materials that wer e
delivered to Mr. Lutalo through ordinary prison mail and
were items in regular circulating media including the New
York Times and the Trentonian, papers for which Mr. Lutalo
had a subscription or was otherwise entitled to receive,
specifically an article in the Trentonian concerning a pipe
bomb, a New York Times article concerning federal homeland
security programs, a book called The Survivalist's Guide by
Ranger Benson available from many public libraries and
bookstores, a work by-the Ghanaian political leader Kwame
Nkrume (one of post-colonial Africa's founding statesmen),
Soldier of Fortune magazine and newsletters and pamphlets
from the Anarchist Black Cross Federation. All of these
materials were delivered to Mr. Lutalo through the NJSP
prison mailroom which at no time confiscated or otherwise
objected to the delivery of these to Mr. Lutalo.
On August 5, 2005, Mr. Lutalo was charged with the
following additional infractions:
*.704,
perpetrating
fraud, deceptions, confidence games, riots or escape plots;•
'.705, operating a business or non-profit enterprise without
approval of the Superintendent, and .70, soliciting funds
or contributions except as permitted by the Administrator.
Pa13. On August 29, 2005, Mr. Lutalo was found guilty of
all three of these charges by the NJSP administrator and he
received a sanction equivalent to time he had served
pending adjudication of the charge.. Pa13. In addition, he
was required to forfeit funds deposited in his account and
his typewriter and its ribbons. On September 1, 2005, his
administrative appeal was denied and the finding of guilt
and sanction were upheld by the Commissioner. Pa13.
In its August 24, 2007 decision, this Court reversed
all of these convictions and held that there existed no
credible evidence to support s u c h charges.
Pa16,20-21.
This Court held that the fact that Mr. Lutalo's name was
.used by an outside organization to raise funds did not
7
establish that he was engaged in unauthorized solicitation
and the fact that donations were made to his prison account
similarly did not establish that he was engaged ,in the
unauthorized sale of videos about his prison life. Pa2021.
This Court further held that 'the interviews were
broadcast with the express consent of DOC.
Pa16-17.
language that questioned the entire evidentiary basis of
the DOC's findings, this Court refused to defer to DOC and
plainly found no basis for any of the DOC's inferences at
to Mr. Lutalo's conduct:
In this case, the evidence does not support the
decision made by the hearing officer and adopted by
the Department. There is nothing in this record that
indicates that Lutalo made any representation about
the subject matter of his video interview or any false
representation about Hajduk's status or affiliation.
We see no basis for the conclusion that Lutalo engaged
in conduct involving false pretense, fraud or
deception in connection with the video, and the
Department's decision does not explain how it reached
that conclusion. The Department's decision is not
based.on a finding that Lutalo benefited from and lent
his name to a campaign for charitable contributions;
it is based only on the Department's conclusion that
the deposits were traceable to sales Of the video:
There was•no evidence linking the deposits in Lutalo's
account and proceeds from the sale of the video and no
evidence of Lutalo's involvement in marketing the
video or soliciting contributions in return for its
distribution. The Department's decision is. nothing
more than a conclusory assertion of Lutalo's guilt
that is not supported by or explained with reference
to substantial credible evidence in the record. More
In
is required to permit us to defer to the expertise of
8
the Department and its investigators. See Williams,
supra, 330 N.J. Super. at 203-05. Pa20-21.
D e s p i t e t h e d o w n g r a d i n g a n d c o r r e c t i on o f t h e
*.803j..206 charges, and the dismissal of the .704, .705.
and .706 charges, Mr. Lutalo was not released from the. MCU
and has been kept in MCU detention even though the charges
for which he was returned to the . MCU
the
*.803/.206/.704/.705/ and .706 charges - were all dismissed
or downgraded.
DOC's administrative decisions prior to this Court's
August 2007 dismissal, acknowledge that the only documented
basis for Mr. Lutalo's detention in the MCU is the very
same *.803/.206 and .704/.706 offenses downgraded or
dismissed outright by order of this Court.
On January 9, 2006 the NJSP Associate Administrator
Michelle Ricci informed Mr. Lutalo that his placement in
the MCU was based upon his conviction of "serious asterick
sanctions
such as perpetrating
frauds,
deceptions,
confidence game, riots, and escape plots...the MCU committee
took the severity of these charges into consideration along
with your past disciplinary record when you were .reviewed
9
for placement."
Memorandum of Administrator Michelle R.
Ricci, January 9, 2008. Pa29.
Since Mr. Lutalo was 'not charged with any other.
offenses, it is indisputable that. Associate Administrator
Ricci is referring to the same *.803/.206 and .704/.706
offenses that this Court in August 2007 downgraded, Pa15,
or dismissed outright as not being supported by credible
evidence. Pa16-21.
In February 2007, again prior to this Court's August
2007 dismissal of all charges, the MCU Review Committee's
denial of Mr. Lutalo's request for transfer out of the MCU
relied on these same, ultimately dismissed charges:
While in Administrative Segregation [e.g., the MCU]
your received several institutional charges including
soliciting funds, operating a business/group without
approval and perpetrating frauds/escape. This type of
behavior poses a threat to the safety and security of
any correctional facility." Notice of Classification
Decision, February 27, 2007. Pa27.
On May -31, 2007, the MCU Review Committee again relied
on these same, now dismissed charges, to support Mr.
Lutalo's continued detention in MCU:
While in Administrative Segregation, you received
several institutional charges including soliciting
funds, operating a business/group without approval and
perpetrating frauds/escape. This type of behavior
poses a threat to the safety and security of any
correctional facility. Pa26.
10
Similarly, on August 30, 2007, the MCU -Review
Cammittee again based its continued placement of Mr. Lutalo
in MCU on these same ultimately dismissed charges:
While serving Administrative Segregation time in 2005,
you received several institutional infractions
including soliciting funds, operating a business/group
without approval and perpetrating frauds/escape. This
type of behavior poses a threat to the safety and
security of any correctional facility. Pa25.
Each of these findings, Pa15,25,26,27, make it clear
that the charged offenses for which Mr. Lutalo was reassigned to the MCU are the same offenses this Court later
downgraded or dismissed.
Yet, despite this Court's blunt
rejection of the convictions for which Mr. Lutalo was
returned to the MCU, DOC rejected each of his requests
following this Court's August 2007 decision to move him
back to the General Population: nearly one year later, he
remains in punitive and restrictive MUC confinement despite
the vacating by this court of the administrative basis on
which he was assigned to the MCU. Following this Court's
August 2007 decision, Mr. Lutalo made three requests to be
removed from the MCU and returned to the general population
or to a half-way house. Pa4,22,24.
Each time DOC has refused (most recently in its
decision of May 29, 2008, the technical subject of this
11
appeal) and he has remained in MCU confinement without
legal basis.
In fact, since this Court's dismissal of all charges
in August 2007, DOC has subtly altered the asserted basis
for its continued detention of Mr. Lutalo request for
return to the general population. No longer does DOC rely
directly on the prior offenses but now relies instead on
the generalized claim that Mr.
Lutalo's political
affiliations. and viewpoints make him "a threat to the
safety and security of any correctional facility".
See
e.g., Pa4,22,24.
On November 29, 2007 DOC's MCU Review Committee, for
the first time, predicated its denial of Mr. Lutalo's
request to be removed from the MCU on reasons relating not
to the prior dismissed charges, but instead to Mr. Lutalo's
political affiliations, a basis never used by DOC until
this Court dismissed the administrative charges:
"The Committee continues to show concern regarding
your admitted affiliation with the Black Liberation
Army and the Anarchist Black Cross Foundation.
Furthermore, you have yet to compete any of the,
necessary programs required for consideration of
release from the ,Management Control Unit. You .
actions continue to pose a threat to the safety and
security of any correctional facility." Notice of
Classification Decision, November 29, 2007.
Pa24
[emphasis addedl.
12
On the basis of these expressed concerns as to Mr. Lutalo's
political affiliations, DOC denied his request to be moved
from the MCU.
On February 28, 2008 the MCU Review Committee relied
on the identical language, word for word, and even the same
paragraph construction as the May 29, 2008 decision:
The Committee continues to show concern regarding your
admitted affiliation with the Black Liberation Army
and the Anarchist Black Cross Foundation. Your
radical views and ability to influence others poses a
.threat to the orderly operation of this Institution.
Furthermore, you have yet to compete any of the
necessary programs required for consideration of
release from the Management Control Unit. Your
actions continue to pose a threat to the safety and
security of any correctional facility." Notice of
Classification Decision, February 28, 2008. Pa22
[emphasis added].
And on May 29, 2008 (the decision from which this
appeal
is
technically based) the DOC again denied Mr.
Lutalo's request to be returned to the General Population
using the newly asserted grounds of political affiliation:
The Committee continues to show concern regarding your
admitted affiliation with the Black Liberation Army
a n d th e A n a r c h i s t B l ac k C r o s s F o u n d a t i o n . Y o u r
radical views and ability to influence others poses a
threat to the orderly operation of this Institution.
Furthermore, you have yet to compete any of the
necessary programs required for consideration of
release from the Management Control Unit. Your
actions continue to pose a threat to the safety and
security of any correctional facility. Notice of
13
Classification Decision, May.29, 2008. Pao [emphasis
added].
As these post-August 2007 administrative denials
all
show, the DOC has shifted the basis of its refusal to reassign Mr. Lutalo to the general population from reliance
on the now-dismissed and downgraded offenses to the newly
stated concern that' his "admitted affiliation with the
Black Liberation Army and the Anarchist Black Cross
Foundation" and his
"radical views and ability to
influence others" threatens" the orderly operation of this
Institution".
See e.g., Pa4,22,24. The common factual
underpinning of each of *,hese three administrative denials
of Mr. Lutalo's requests for transfer is the DOC'
insistence that Mr. Lutalo's political viewpoints and
affiliations threaten the orderly operation and security of
the NJSP..
On this basis,. Mr. Lutalo remains in MCU confinement
more than one year after this Court dismissed or downgraded
all charges for which he was assigned to the MCU.
This
appeal seeks an order directing that he be returned to the
general population or a halfway house or other intermediate
confinement appropriate to his imminent release date, and
his favorable behavioral rating.
14
Argument
Point One
DOC'S REFUSAL TO RETURN MR. LUTALO AFTER THE DISMISSAL OR
DOWNGRADING OF THE CHARGED OFFENSES FOR WHICH HE WAS SENT
TO THE MCU VIOLATES PROCEDURAL AND SUBSTANTIVE DUE PROCESS
AND THIS COURT'S AUGUST 24, 2007 MANDATE.
our Supreme Court has recognized, administrative
segregation may be accomplished only through due process:
Following Meachum v. Fano and Montanye v. Haymes, we
continued to recognize that state statutes may grant
prisoners liberty interests that invoke due process
protections when prisoners are transferred to solitary
confinement for disciplinary or administrative
reasons. Enomoto v. Wright, 434 U.S. 1052, 98.S.Ct.
1223, 55 L.Ed. 2d 756 (1978), summarily affg 462
F.Supp. 397 (N.D.Ca1.1976).
New Jersey State Parole Bd. v. Byrne, 93 N.J. 192,201
(1983) quoting Morrissey v. Brewer, 408 U.S. 471, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972).
The extent of due process to be applied depends
upon the nature of the liberty interest:
Whether any procedural protections are due depends on
the extent to which an individual will be 'condemne .
to suffer grievous loss.' [Citations]. The question
is
not merely the 'weight' of the individual's interest;
but whether the nature of the interest is one within
the contemplation of the 'liberty or property'
language of the Fourteenth Amendment.
15
Byrne, quoting Morrisy v. Brewer, 408 U.S. at 481:
Sanctions such as administrative segregation that give rise
to a loss of commutation time certainly invoke due process
liberty interests.
Relying on the U.S. supreme Court's decision in Hewitt
v. Helms, 103 S.Ct. 864,871 (1983), Byrne held that "the authorities could not place a prisoner in administrative
segregation without due process" and that prisoners in New
Jersey "have a liberty interest in remaining in the general
population". 93 N.J. 202-203.
Applying these principles to a case concerning parole
eligibility, the Byrne court held that parole cannot be
denied"
absent.
the
requisite
finding
that...the
justification[] for deferral exists." Id. at 203, citing
Greenholtz, 442 U.S. at 12.
Byrne
.
thus
establishes
that
administrative
determinations as to segregation or parole ineligibility
require findings of fact supporting the segregation or
denial of release.
In Urbano v. McCorkle, 334 F. Supp. 161, 166-169
(D.N.J. 1971), the District Court long ago rejected the
DOC's power to place an inmate in "administrative
or...punitive segregation merely by fiat if he is not charged
16
with an infraction of the rules." Quoting Judge Motley in
the Second Circuit decision in Sostre v. McGinnis, 442 F.2d
178- (2d Cir.), the District Court held that arbitrary
removal of inmates to administrative segregation without
ultimate charge and conviction would violate basic norms of
fairness:
`[Our] constitutional scheme does not contemplate
that society may commit lawbreakers to the capricious
a n d a r b i t r a r y a ctions of prison officials. If
substantial deprivations are to be visited upon a
prisoner, it is wise that such action should at least
be premised on facts rationally determined. This is
not a concept without meaning. In most cases, it would
probably be difficult to find an inquiry minimally
fair and rational unless the prisoner were confronted
with the accusation, informed of the evidence against
him * * * and afforded a reasonable opportunity to
explain his actions.' ."
334 F.Supp at 167-168 quoting Sostre v. McGinnis, 442 F.2d
178 (2d Cir.)
Thus, it has long been recognized that sentence to
administrative segregation in New Jersey requires a finding
and conviction of a charged offense. New Jersey prisoners
may be disciplined for infractions only upon factual proof
of the charged administrative offense. See e.g. Decamp v.
Ne w
Jersey Dept. of Corrections, 386 N.J. Super. 631
(App.Div. 2006).
17
Moreover, New Jersey has expressly accorded greater
due process to prisoners in disciplinary hearings than is
available under federal law.
In Wolff v. McDonnell, 418
U.S. 539, 555-56 (1974), the United States Supreme Court
declared that "[t]here is no iron curtain drawn between the
Constitution and the prisons of this country."
Wolff
e s t a b l i s h e d m i n i m u m federal procedural due process
requirements for prison disciplinary proceedings.
Following Wolff, our Supreme Court has extended "State
due-process guarantees beyond the federal constitutional
minimum." McDonald v. Pinchak, 139 N.J. 188, 195, 652 A.2d
700 (1995); see also Avant v. Clifford, 67 N.J. 496, 520,
341 A.2d 629 (1975).
In McDonald, the New Jersey Supreme Court recognized
that prisoners are entitled to a broad panoply of due
process rights in disciplinary hearings, substantially akin
to those available to non-confined citizens.
McDonald,
supra at 196-199 (citing the right to call witnesses, cross
examination,
affirmatively present evidence _and the
creation of a record of the findings in prison disciplinary
hearings). McDonald expressly.recognized Avant's expansion
of New Jersey procedural protections in prison disciplinary
hearings beyond the limited federal minimum. See Avant v.
18
Clfford, supra, citing Wolff V. McDonnell, 418 U.S. 539
(1-974).
New. Jersey jurisprudence requires that an inmate may
be convicted in a disciplinary hearing •only upon factual
proof of the charged offenses. Blackwell v. Department of
Corrections, 348-.N.J. Super. 117, 122-123 (App..Div. 2002).
DOC regulations expressly require that "[a] finding of
guilt at a disciplinary hearing shall. be based upon
substantial evidence that the inmate has committed a
prohibited act."
N.J.A.C.
10A:4-9.15(a).
See also Avant
v, Cl if f ord, 67 N.J. at 530 (requiring that there be
substantial evidence to support an inmate disciplinary
sanction).
Inherent in this public policy is the concept
that a prisoner must be charged and convicted for the
offense before being made subject to administrative
segregation.2
Our case law presuppose a conviction of a charged
disciplinary
2
offense
prior
to
any
sentence
Urban° did recognize the power of DOC to temporarily
segregate an inmate for emergent reasons, such as the
aftermath of a riot or other violence. Urbano makes it
clear, however, that such power is temporary and must be
of
followed by charge and conviction for the sentence to
administrative detention to be maintained.
19
administrative segregation. It follows that a dismissal of
such charges by this Court must result in a•return of the
inmate to the general population following such dismissal;
though this Court dismissed or ordered downgraded all
disciplinary infractions for which Mr. Lutalo was referred
to the MCU, DOC has refused, despite this Court's ruling,
to end his MCU segregation and return him to the general
population.
Despite this Court's August 2007 decision downgrading
.
• or dismissing all such charges, Mr. Lutalo has been kept
in
continuous MCU segregation,
i.e.
effective solitary
confinement.
To continue to hold Mr. Lutalo in MCU confinement
after the dismissal of the charges, not only violates
basic
due process but runs counter to this Court's finding of
the
absence of any factual basis to such charges.
In its August 2007 decision, this Court did more
than
merely dispute the DOC's view of Mr. Lutalo's guilt on
these charges. This Court expressly found that
"the evidence does not support the
decision made by the hearing officer and adopted by the
Department"
"There is nothing in the record
t h a t indicates that Lutalo made any representation about
the
subject
matter
of
his
video...or
any
false
representation..."
20
"We see no basis for the conclusion that
Lutalo engaged in conduct involving false pretence, fraud
or deception in connection with the video"
"there was no evidence linking the deposits
in Lutalo's account and proceeds from the sale of the
video" and
"no evidence of Lutalo's involvement in
marketing the video or soliciting. contributions in return
for its distribution"
See Opinion dated August 24, 2007, Pa20-21.
This Court so disparaged the DOC's factfinding as to
the basis of Mr. Lutalo's administrative offenses that it
held the DOC's claims to be wholly conclusory:
"The Department's [DOC's] decision is nothing more
than a conclusory assertion.of Lutalo's• guilt that is
not supported by or explained with- reference to
substantial credible evidence in the record." Pa21.
[Emphasis added to excerpts].
Despite the plain reversal and dismissal by this Court
of the charges for which Mr. Lutalo was referred to the
MCU, DOC has repeatedly refused to return him to the
general population.' As the basis of his referral to MCU
was the now-vacated *.803/.206 and the .704,.705,.706
convictions, Mr. Lutalo's requests to return to the general
The *803/.206 offenses were downgraded on remand from
this Court. Such downgraded offenses would not give rise
to MCU segregation. The remaining .704, .705 and .706
offenses were dismissed outright in August 2007.
population should have been granted by DOC:
Since an
3
21
inmate can only be sentenced to administrative discipline
based upon conviction of charged offenses, see e.g.
Black well v. Department of Corrections, 348 N.J. Super.
122-123, once the offenses for which he was re-assigned to
the MCU were dismissed or vacated, no legal basis exists
for Mr. Lutalo's continued detention in the MCU.
Point Two
DOC CONTINUES TO HOLD MR. LUTALO IN MCU DETENTION NOT ON
THE BASIS OF ANY CHARGED OFFENSES BUT BECAUSE OF MR.
LUTALO'S POLITICAL BELIEFS AND AFFILIATIONS.
As the record shows, subsequent to this Court's August
24, 2007 decision, DOC not only refused to release Mr.
Lutalo from the MCU but conceived an entirely new, nevercharged basis for keeping him in the punitive segregation
wing.
Prior to this Court's August decision, DOC denied Mr.
Lutalo's transfer on the basis of his convictions for the
*803/.206 and .704,.705,.706 offenses. Pa25,Pa26.
Onc
e
these were vacated by the Court, however, DOC began
rejecting Mr. Lutalo's requests for transfer out of the MCU
on the new ground that his political "affiliations" and his
22
"radical views" posed a threat to the "orderly operation of
the institution". Pa22,23,24.
DOC is not shy as to the basis of this newly-asserted
position, claiming openly and directly that it was Mr.
Lutalo's membership in the Black Liberation Army and the
Anarchist Black Cross Foundation that have caused the
Review Committee to continue his MCU status:
The Committee continues to show concern regarding your
admitted affiliation with the Black Liberation Army
and the Anarchist Black Cross Foundation. Your
radical views and ability to influence others poses a
•threat to the orderly operation of this Institution.
See Review Committee Decisions, May 29, 2007, February 28,
2007, November 29, 2007, Pa4,22,24 [emphasis added].
The transcript of the record of the MCU Review
Committee on November 9, 2007 shows that the only
substantive concern expressed by the Committee for Mr.
Lutalo's continued MCU detention was his membership in
these political organizations.
As the transcript shows,
the only substantive remarks from the Committee related to
Mr. Lutalo's political associations:
Chair: "What is concerning us is that while you were
in the Management Control Unit and the general
'population you continued to involve yourself
with groups of a radical nature that focus on
disruption of the prison security and the orderly
running of this institution."
23
Chair: Your involvement continues to be subversive in
nature."
*
Chair:
Most
of
the
participate/associate
with
organizations."
organizations
you
are
not
friendly
Pa34,35.
These
statements
demonstrate
that
the
Review
Committee's primary, indeed, exclusive concern on the
record of the November 9, 2007 hearing was Mr. Lutalo's
membership in these "subversive" organizations - the Black
Liberation Organization and the Anarchist Black Cross
Foundation. It was this affiliation and no other expressed
ground that was the basis for his continued. detention in
the MCU. The Review Committee's conclusion in its. November
9, 2007 decision makes it clear beyond any reasonable
dispute that the basis for Mr. Lutalo's continued detention
.in the MCU was his political associations:
It is therefore the decision of this Committee that
due .to inmate Lutalo's continued association and
participation with organizations whose sole function
is to disrupt legitimate government agencies,: inmate
Lutalo should be assigned to the Management Control
Unit at New Jersey State Prison." Pa36.
24
Nothing could be clearer from this finding that the
MCU Review Committee's decision was based solely on Mr.
Lutalo's continued association with the Black Liberation
Organization and the Anarchist Black Cross Foundation. No
other reasons are advanced anywhere on the record of the
November 9, 2007 hearing and decision for. his continued MCU
detention.
Indeed, as far back as October 2005, DOC appears to
have harbored the concealed object of returning Mr. Lutalo
to the MCU not because of any charged offenses but because
of his political associations with anarchist groups that
espouse the overthrow of the government.
In Mr. Lutalo's Criteria Record Sheet dated October
17, 2005, the day before the official referral of Mr.
Lutalo to the MCU, DOC admitted in clear unabashed language
that it was re-assigning Mr. Lutalo to the MCU because of
his political affiliations with "any anarchist, radical,
left wing anti-government group particularly the Anarchist
Black Cross. Federation (A.B.C.F.)" that have the intent to
"overthrow" the government. Pa9.
It is clear from the Criteria Record Sheet that DOC's
actual reason for Mr. Lutalo's assignment to the MCU was
25
his association with the Anarchist Black Cross Federation
and the Black Liberation Army:
"It is based on his active involvement in
organizations and with individuals whose entire
existence is based on the disruptive violence and
chaos, that inmate Lutalo should be assigned to the
Management Control Unit." Pa10.
Mr. Lutalo has never been charged or accused of
ever
attempting to proselytize or advocate for his views within
the NJSP.
Moreover, he has no criminal offense on his
record during his entire 25 years' long imprisonment in New
Jersey, because of his exemplary disciplinary record has
earned a "2" rating - one of the highest possible ratings
for a peaceable and well-behaved inmate, and lived for four
and one-half years from 2000 to 2005 in the general
population without a single charge of advocating any
political or ideological activity or beliefs and, aside
from those charges downgraded or dismissed by this Court he
had no disciplinary finding against him the entire time he
was in the general population.
Thus, whatever disagreement the DOC may have with his
political views or affiliations there is no evidence of any
inappropriate act by Mr. Lutalo aside from collecting,
reading and occasionally writing materials deemed of.
26
"radical" nature. Moreover, as Mr. Lutalo also repeatedly
pointed out in his Review hearings, these affiliations and
associations were known to the DOC prior to his removal
from the MCU in 2000 and assignment at that time to the
general population. Pa30. Surely, if his affiliations did
not bar his return to the general population from the MCU
in 2000 there can be no basis to say that his continued
maintenance of such beliefs can justify his return to the
MCU five years later. Such arbitrary. removal of inmates to
punitive segregation based upon political belief is the
very type of arbitrary fiat that is outside the scope of
DOC's supervisory powers.
See e.g. Urbana v. McCorkle,
supra (where the district rejected DOC's claim of right to
remove inmates to administrative segregation based upon
uncharged and unproved allegations).
Moreover, this Court already vacated Mr Lutalo's
c o n v i c t i o n s f o r c o n duct that threatens the orderly
functioning of the institution. Following such order, the
offenses were downgraded to mere unauthorized possession, a
non-asterick "on the spot" sanction that does not give rise
to segregation.
Thus, even if DOC believes that his
possession of the materials referred to in the Criteria
R e c o r d S h e e t t h r e a t en the orderly operation of the
27
institution, such charges have already been adjudicated by
this Court and found to be without merit. Pa16-21.
As the record plainly shows, continued detention of
Mr. Lutalo following this Court's August 2007 decision is.
based entirely on his continued association with the Black
Liberation Army and the Anarchist Black Cross Federation
and his radical political beliefs, offenses that were
dismissed by this Court and that cannot serve as the basis
for continued detention.
Whatever dispute the DOC has with Mr. Lutalo's
political views, DOC cannot arbitrarily move a prisoner to
a highly onerous form of segregation merely because of such
beliefs in the absence of objective findings that the
prisoner's actions have threatened the orderly operation of
the institution.
While certain materials may be deemed
inappropriate in a prison setting, the appropriate remedy
tor DOC
is
c o n f i s c a tion as is already authorized
by
existing regulations that permit minor "on the spot"
imposition of sanctions for "unauthorized possession". For
DOC to remove an inmate from the general population and
impose a multi-year regimen of effective isolation and
onerous treatment because of DOC's opinion of his political
viewpoints,
is the very essence of arbitrariness,
28
particularly in the absence of any single asserted or
documented allegation that he has ever caused or attempted
cause any disruption to the security or orderly
operation of the institution.
This Court has expressly held that discipline for
possession of subversive materials must be based upon
express findings in the record as to the nature of the
subversive materials. See e.g. Balagun v. New Jersey Dept.
of Corrections, 361 N.J. Super. 199 (App.Div. 2003), where
this Court reversed a conviction for an inmate's possession
of gang-related materials where the hearing officer failed
to document the purportedly "gang" nature of the materials.
As Balagun held, for the hearing officer to merely assert
his "conclusory" opinion that the materials were "gangrelated" is not sufficient to invoke a disciplinary
sanction:
[D]eference does not require that we forego a careful
review of administrative decisions simply because an
agency has exercised its expertise. We cannot accept
without question an agency's conclusory statements,
eve n wh en th ey rep res en t a n exe rc ise in ag enc y
expertise. The agency is "obliged . . 'to tell us
why.'" In re Valley Hosp., 240 N.J. Super. 301, 306,
573 A.2d 203 (App.Div.1990) (quoting Drake v. Human
Servs. Dep't, 186 N.J. Super. 532, 538, 453 A.2d 254
(App.Div.1982)), certif. denied, 126 N.J. 318, 598
A.2d 879 (1991).
29
We have repeatedly stated that while an administrative
decision is entitled to deference, we will not
perfunctorily review and rubber stamp the agency's
decision. Blackwell v. Dep't of Corr., 348 N.J. Super.
117, 123, 791 A.2d 310 (App.Div.-2002)(citing Williams
v. Dep't of Corr., 330 N.J. Super. 197, 204, 749 A.2d
375 (App.Div.2000)). Instead, we insist that
the-agency disclose its reasons for any decision,
even t h o s e b as e d u p o n e x p er t i s e , so t h at a
p r o p e r , searching, and careful review by this court
may be undertaken.
The exercise of our review function is especially
important in this case. Not only did the hearing
officer fail to explain his decision, but the sections,
of the confiscated materials that Melendez highlighted
and were relied upon by the hearing officer were not
reproduced in the record. Thus, we could not even
locate the specific portions of the documents that
Melendez and the hearing officer thought pertinent,
Balagun, supra at 202-203.
Balagun is directly analogous to the instant action.
Just as the hearing officer in Balagun failed to identify
the
allegedly
offensive
nature
of
the
materials
confiscated, the MCU Review Committee has simply declared
that materials found in Mr. Lutalo's cell area threat to
the security of the institution simply because •of their
general subject -matter and Mr. Lutalo's political views.
Aside this perfunctory rendition of a pro forma finding
that his associations with radical groups and his radical
views pose a threat to the security and orderly operation
of the institution, DOC has not identified the components
30
of these materials or any actual acts of Mr. Lutalo that
are supposed to form the basis for such conclusion. As in
Balagun, such "conclusory" findings are an insufficient
basis for any sanction, much less the onerous burden of
administrative segregation.
Such unbridled license of the State to segregate
inmates based upon an official's personal view of the
"subversive" nature'of materials found in an inmate's cell
is the very type of the censorship that the U.S. Supreme
Court has held is outside the bounds of prison authorities.
In Procunier v. Martinez, 416 U.S. 396 (1974), the Supreme
Court
declared
unconstitutional
regulations
barring
writings that, inter alia, express "inflammatory political,
racial, religious or other views." 416 U.S, at 4 1 5 .
the Supreme Court reiterated in Thornburgh v. Abbott, 490
U.S. 401, 416,
n.14 (1989),
We found in Martinez that "[t]hese regulations fairly
invited prison officials and employees to apply their
own personal prejudices and opinions as standards for
As
prisoner mail censorship," and that the purpose of the
regulations had not been found "unrelated to the
suppression of expression." Ibid. The regulations at
issue in Martinez, therefore, were decidedly not
"neutral" in the relevant sense.
DOC's insistence that it may sentence a prisoner such
as
Mr. Lutalo to administrative segregation, a substantial
31
loss of liberty beyond the ordinary state of confinement,
based on the Department's view of his radical views and
affiliations is directly within the ambit of prohibited
viewpoint censorship criticized in Abbot and Martinez.
Redolent of the lingua franca of. the McCarthyite era, DOC's
.insistence that the "subversive" nature of Mr. Lutalo's
views and associations is in itself enough to support his ,
.continued MCU segregation invites prison authorities to
make the same judgments based on "their own personal
prejudices and opinions" condemned by the U.S. Supreme
Court in Martinez. Indeed, no basis is asserted for Mr.
Lutalo's continued MCU detention aside from the DOC's
opinion of his "radical" views and "affiliations".
In view of the complete absence of any documented
history of proselytizing or advocacy by Mr. Lutalo of other
NJSP inmates during his four and one-half years in the
general population, or at any other time, his continued MCU
isolation based solely on his political
views
and
affiliations is the very essence of arbitrariness and
cannot serve as the basis for his continued MCU detention.
32
Conclusion
For the reasons set forth above, the decision of the
MCU Review Committee should be reversed, Mr. Lutalo should
be discharged to the general population and the NJSP be
directed to find alternate housing for him in a halfway
house or other appropriate intermediate facility prior to
his release as is consistent with his imminent release date
and favorable disciplinary record.
Respectfully submitted,
Bruce I. Afran
Counsel for Appellant
Ojore Lutalo
Dated December 15, 2008
BRUCE I. AFRAN
10 Braeburn Drive
Princeton, New Jersey 08540
609-924-2075
Attorney for Appellant
SUPERIOR COURT OF NEW JERSEY – APPELLATE DIVISION
No. A-5496-07T3
OJORE
LUTALO,
Appellant,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
APPELLANT'S APPENDIX
Bruce I. Afran
10 Braebrun Drive
Princton, New Jersey 08540
609-924-2075
Attorney for Appellant
BRUCE I. AFRAN
10 Braeburn Drive
Princeton, New Jersey 08540
609-924-2075
Attorney for Appellant
SUPERIOR COURT OF NEW JERSEY – APPELLATE DIVISION
No. A-5496-07T3
OJORE
LUTALO,
Appellant,
v .
DEPARTMENT OF CORRECTIONS,
Respondent.
APPELLANT'S APPENDIX
Bruce I. Afran
10 Braebrun Drive
Princton, New Jersey 08540
609-924-2075
Attorney for Appellant
' To preserve text, the page number has not been stamped on certain Appendix items. All
Appendix items are sequential.
Table of Appendix Contents'
Notice of Appeal
Pal
Ojore Lutalo, Inmate Detail
Pa3
MCU Review, 5/29/08
Pa4
NJSP Memorandum to Ojore Lutalo, Date 10/18/08
Pa5
Ojore Lutalo, Progress Report Notes, '12/27/2007
Pa6
Criteria Record Sheet
Pal
Decision, Lutalo v. Department of Corrections,
Appellate Division, A-3294-05, August 24,2007
Pal 1
MCU Review, 2/28/08
Pa22
MCU Review, December 5,2007
Pa23
MCU Review, 11/29/2007
Pa24
MCU Review, 8/30/2007
Pa25
MCU Review, 5/31/2007
Pa26
MCU Review, 2/27/2007
Pa27
Memorandum, Ojore Lutalo to NJSP, November 6,2007
Pa28
Memorandum, NJSP to Ojore Lutalo, January 9,2006
Pa 29
Memorandum, Ojore Lutalo to NJSP, November 29,2005
Pa30
Initial Management Control Unit Placement, November 9,2005
Pa33
Disciplinary Report, 10/19/05
Pa38
Parole Plan Interview
Pa39
Letter, May 25,2006 to Ojore Lutalo
The Record, June 11, 1992
Pa40
pa43
NOTICE OF APPEAL
PLEASE PRINT OR TYPE
SUPERIOR COURT OF NFWJFRRFY - APPELLATE DIVISION
TITLE IN FULL (AS CAPTIONED BELOW):
SE LITIGANT
ATTORNEY OR PRO
NAME BRUCE
OJORE LUTALO,
ADDRESS
I. AFRAN
10 Braeburn Drive,
Princeton, NJ 08540
Appellant,
TELEPHONE NO.
609-924-2075
ATTORNEY FOR
Appellant
v.
FROM:
DEPARTMENT OF CoRwetivED Appellee APPELLATE DIVISION
ON APPEAL
JUL 18 2008
SUPERIOR COURT
OF NEW JERSEY
Department of Corrections
TRIAL COURT OR STATE AGENCY
NONE
TRIAL COURT OR AGENCY NUMBER
TRIAL C OUR T JUDG E CIVIL [ I CRIMINAL [ ] JUVENILE [ ]
NOTICE IS HEREBY GIVEN THAT
OJORE LUTALO
APPEALS TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, FROM
THE JUDGMENT [ I ORDER[]STATEAGENCYDECISION[x]
ENTEREDINTHISACTIONON
JUN
E 3, 2008
DATE
IF NOT APPEALING THE ENTIRE JUDGMENT, ORDER OR AGENCY DECISION, SPECIFY
WHAT PARTS OR PARAGRAPHS ARE BEING APPEALED.
HAVE ALL ISSUES AS TO ALL PARTIES BEEN DISPOSED OF IN THIS ACTION IN THE TRIAL
COURT OR AGENCY? (IN CONSOLIDATED ACTIONS, ALL ISSUES AS TO ALL PARTIES IN ALL
ACTIONS MUST HAVE BEEN DISPOSED OF.) YES [x] NO [
IF NOT, HAS THE ORDER BEEN CERTIFIED AS FINAL PURSUANT TO R. 4:42-2? YES [ ] NO [ j
IN CRIMINAL, QUASI-CRIMINAL AND JUVENILE ACTIONS:
GIVE A CONCISE STATEMENT OF THE OFFENSE AND OF THE JUDGMENT,
DATE ENTERED AND ANY SENTENCE OR DISPOSITION IMPOSED.
IS DEFENDANT INCARCERATED? YES [ ] NO [ ]
WAS BAIL GRANTED OR THE SENTENCE OR DISPOSITION
STAYED? YES [ ] NO [ ] IF IN CUSTODY, GIVE THE PLACE OF
CONFINEMENT.
P
a
l
Revised: 06/2005, CN: 10837-English (Pro Se Kit)
(Page 1 of 2)
Click Here to go to Page 2
ATTACH ADDITIONAL SHEETS IF NECESSARY
NOTICE OF APPEAL AND ANNEXED CASE INFORMATION STATEMENT HAVE BEEN SERVED ON:
D
SERVICE
ATE OF NAME
DEPARTMENT OF CORRECTIONS
7/18/08
TRIAL COURT JUDGE
TRIAL COURT CLERK OR STATE AGENCY
ATTORNEY GENERAL OR ATTORNEY FOR OTHER GOVERNMENTAL BODY PURSUANT TO R. 2:51(a), (e) or (h)
OTHER PARTIES:
ATTORNEY GENERAL
7/18/08
ATE OF NAME AND DESIGNATION
ATTORNEY NAME, ADDRESS AND TELEPHONE NO.
D
SERVICE
RECEIVED
t\
pp
F
! ‘t-T-F
D I VI S I O N
JUL 18 2008
SUi-±.K1Uti COURT
ANNEXED TRANSCRIPT REQUEST FORM HAS BEEN SERVED Of
NEW JERSEY
DAT
E OF AMOUNT OF NAME
COURT REPORTER'S SUPERVISOR,
CLERK OF COURT OR AGENCY
EXEMPT - NO VERBATIM RECORD
COURT REPORTER
EXEMPT FROM ANNEXING THE TRANSCRIPT REQUEST FORM DUE TO THE FOLLOWING:
[X] NO VERBATIM RECORD.
[ ] TRANSCRIPT IN POSSESSION OF ATTORNEY OR PRO SE LITIGANT. (FOUR
COPIES, ALONG WITH THE COMPUTER DISKETTE FROM THE TRANSCRIPT
PREPARER, MUST BE SUBMITTED.) LIST THE DATE(S) OF THE TRIAL OR
HEARING.
[ ] MOTION FOR ABBREVIATION OF TRANSCRIPT FILED WITH THE COURT
OR AGENCY BELOW. [ ] MOTION FOR FREE TRANSCRIPT FILED WITH THE
COURT BELOW.
R
E
S
IC
V
O
P
D
T
SIGNATURE OF ATTORNEY
I CERTIFY THAT THE FOREGOING STATEMENTS ARE TRUE TO THE BEST OF MY
KNOWLEDGE, INFORMATION AND BELIEF. I ALSO CERTIFY THAT, UNLESS EXEMPT, THE
FILING FEE REQUIRED BY N.J.S.A. 22A:2 HAS BEEN PAID.
DATE
PRO SE raA\IT
AD-9(Elec)
Revised:
10837-English (Pro
Se Kit)06/2005,
4/01 CN:
(Page 2 of 2)
Offender Details
Text only
rage
z,
FI2MIJEM
https://www6.state.nj.us/DOC_Inmate/details?x=1049380&n=0
6/4/2008
my home
rsey I people I sin
Search Form >> List
I governments I departments
Details
Offender Details
SBI Number:
0000901548
Lutalo, Ojore
Sentenced as:
Race:
Ethnicity:
Sex:
Hair Color:
Eye Color:
Height:
Weight:
Birth Date:
Admission Date:
Current Facility:
Projected Max Release Date:
Projected Parole Eligibility
Date:
ff
Oense
2 count/merged count of :
2C:12-I
Assault/Aggravated /3
I count/merged count of :
2C: 15-1 Robbery /2
1 count/merged count of :
2C:39-4
Weapons/Possession for
Unlawful Purposes
Offe nse Date
Black
N/ A
Male
Black
Brown
5'11"
182 lbs.
August 6, 1945
November 19, 1982
NJSP
February 10, 2009
N/ A
Current Prison. Sentence
County of Commitment
..o
Order
C. :mmitment
Se nte nce Date
November 19. 1982
November 19. 1982
Monmouth
November 19. 1982 November 19, 1982
Monmouth
November 19. 1982 November 19, 1982
Monmouth
Mandator)
-nnn
u m- M .aximum
.Mi.
'Fenn
Term
1-204-81
None
4 Years
1-204-81
20 Years
40 Years
1-204-81
None
7 Years
1 count/merged count of :
2C:39-5 Weapons/Unlawful
Possession of Weapon /3
November 19, 1982 November 19, 1982
I countlmerged count of :
2C:PV Parole Violator
July 29, 1977
Monmouth
July 29, 1977
Mercer
1-204-81
None
4 Years
PV-488-75
None
4 Years
7 Months
13 Days
Aliases Bunting, Leroy
Incarceration History
Date hi Custody
Date Out of Custody
November 19, 1982
Currently In Custody
PMY10Issl ristok10140.1 h/
'neat
piiittdity:Seej
CNnewgeorOti•
Criteria Chosen:
Sex = NI: Last Name = LUTALO: Current Facility = New Jersey State Prison:
Disclaimer:
Pa3
The purpose of the Offender Search Web Page is to promote public safety and welfare while providing
community access to selected offender information, consistent with the spirit and intent of the New Jersey Open
Public Records Act (OPRA).
cc: MCU Folder Classification File
Pa4
–
12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutalo, Ojore
.NUMB-ER: 59860/901548
The MCURC had reviewed evidence and considered the
testimony relative to Inmate Lutalo his routine review,
pursuant to 10A:5-2.10. This evidence includes:
x 1.
Documents supporting initial placement decision
x 2.
Disciplinary Reports
x 3.
Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
x 8.
Compliance with revised MCU placement phases
x 9.
Housing Reports
Inmate Statements / Comments
Inmate Ojore Lutalo refused to attend his May, 2008 Routine Review.
Based on die above the MCURC has determined
the following, which justifies the decision of the
committee:
The MCURC notes your refusal to attend your May, 2008
Routine Review. You are encouraged to attend all Routine
and Annual Reviews as well as all available MCU programs.
The Committee continues to show concern regarding your
admitted affiliation with the Black Liberation Army and the
Anarchist Black ' Cross Foundation. Your radical views and
ability to influence others poses a threat to the orderly
operation of this Institution. Furthermore, you have yet to
complete any of the necessary programs required for
consideration of release from the Management Control Unit.
Your actions continue to pose a threat to the safety and
security of any correctional facility.
Inmate Lutalo is assigned to Phase I,
or Phase III (circle one)
It is the decision of MCURC that Inmate_Lutalo should
remain assigned to the Management-Control Unit at this
time.
Next Routine Review ischeduled for
August, 2008
I Ms. Raupr, ____________________ certify that the above represents a true and
accurate r r o the r reeding.
MCURC Chair Mr. Dru
Professional Services Represen
Custody Supervisor Lt. Sande
Date 5/29/2008
Decision delivered to lomat bY
Name and
Date of delivery
le
RECEIVED
APPELLATE DIVISION
AL 18 MB
SUPERIOR COURT
OF NEW JERSEY
Date: 2°7-2-"/
o
Delivered By'
Title:
Pas
State Prison, Trenton
New Jersey
Date 10/18/2005
901548/59860
(Number)
TO: Ojore Lutalo
(Inmate Name)
FROM:
Ronald H. Cathel
Administrator
SUBJECT: Administrative Pre-Hearing Detention – Management Control Unit
Please be advised that effective today,
October 18, 2005
you are being
administratively placed in Pre-Hearing Detention-Management Control Unit and will be
given an in-person classification hearing on/or
Tuesday, November 1, 2005 before
the Special Classification Committee-Management Control Unit.
Professional reports and information received indicate that you pose a substantial threat
to the safety of others, and a threat of interrupting the operation of the institution of you
are housed in general population of any State Correctional Institute.
Cc: MCU File
PCC File
1Z444/ . 24)411 V:JJ
State of New Jersey
Department of Corrections
Inmate Management
PROGRESS NOTES REPORT
~OIRAUP
gEW
JERSEY STATE PRISON
BATCH:
!NW
59860
Date
66 OF 3 2 2
'SBI#
0000901548
_ _ ___ _
_
Seq#
Last Name
LUTALO
• _ _ ___ _ _ . _
Type
First Name
OJORE
Note
Inn
Location
NJSP-NORTH-2 B LEFT-CELL 05;
_ _ ___ _ ___ _ _ _ _ _ _ _ ___ _ __ _ ___ _ __ _
' 09/113/2001
179
GN
MCU Routine Review em01
09/113/2001
180
GN
MCU Routine Review 6/7/01
09/16/2001
02/06/2002
02/20/2002
02/27/2002
181
182
183
184
GN
GN
GN
GN
020200?
185 GN
02/27/2002
186
GN
Sfx
___
Status Date
CLO
0
_
Case Action
02/27/2002
06/t3/2002
01(06/2005
10/24/2005
01/30/2006
02/09/2006
187
1188
189
190
191
. 192
GN
GN
GIN
GN
CRTTRP
SPBPPP
03/16/2006
193
GN
06/23/2008
194
GN
MCU Routine Review 6/7/01 Orientation Completed
ORENT
MCU ROUTINE REVIEW 12/6/01
MCU ROUTINE REVIEW 12/6/01 (con't.)
MCU ROUTINE REVIEW 12/6/01 (con't)
MCU ROUTINE REVIEW 12/6/01 (don't) MCU Release as of 1/16/02
PRE-PAROLE PACKAGE SPINC
PRE-PAROLE PACKAGE PRE-PAROLE PACKAGE
Interstate Cbmpact Case MCU 'Routine Review 6.15-06
06/23/2006
195
GN
MCU RR 5 .15-06 can't
' 06/23/2006
• 196
GN
MCU RR 6.15-06 con't
06/27/2006
03/07/2007
197
198
GN
GN
Oregon declined to
accept placement of
this offender MCU
Routine Review
2/27/07
Ojore
SBI 901_548
New Jersey State
Prison 3rd and
Federal Streets
Trenton, NJ
08625
Control Unit. The MCURC has reviewed circumstances surrounding his Initial placement and various;professional reports. These reports reflect lack of
program participation and inappropriate attitude. Based on the above, you are assigned
Phase II. The committee notes that to date you have not participated in Phase II as outlined In the revised MCU Phases memorandum dated November 6,
1998. It is also noted that you refused to attend your September 1, 2001 MCU Routine Review
Your case will be reviewed In ninety (90) days. R.R. 12/01 Shirley Tyler, Chairwoman. /tf
On 1/17/2002 Orientation Completion. /sb.
The Management Control Unit Review Committee has reviewed evidence relative to Inmate Lutalo at his Routine Review, pursuant to 10A:5-2.10. It is the
opinion of the committee that Inmate Lutalo should remain assigned to the Management
Control Unit. The MCURC has reviewed circumstances surrounding his initial placement and variousprofessional reports: These reports reflect lack of
program participation and Inappropriate attitude, Based on the above', you are assigned to
Phase U. The committee noted that you have not participated in Phase II as outlined In the revised MCU Phases memorandum dated November 6, 1998. It
also noted that you refused to attend your December 2001 MCU Routine Review.
Your case will be reviewed In ninety (90) days.'R.R. 03/02 Steven Sootkoos, Chairman
It is the;decIsIon of the Committee to Administratively re-assign you from the Management Control Unit and assign you to General Population at New
Jersey State Prison.
PRE-PAROLE PACKAGE TO PAROLE. /sb.
• Management Control Unit Placement as of 10/18/2005, per
approval from Administrator; Cathet,
PRE-PAROLE.PKG. TO PAROLE. /sb.
PRE-PAROLE PKG, TO PAROLE (PER PAROLE REQUESTED ON 2/7/06 TO BE UPDATE PKG.). kb.
Interstate package forwarded to OSI on 3-16.08
The MCURC had reviewed evidence and considered the testimony relative to l/m Lutalo at his Routine Review, pursuant to 10A: 5-2.10. Based on the
above the MCURC has determined the following, which Justifies the decision of the committee:
The Committee notes your request for congregate status as well as your lack of program participation. Mr. Lutalo before you can request for congregate
statualou need to complete your Administrative Segregation time for the chrg ".803/.306
which was effective on 7.11-05 for 365 days. I/m Lutalo is assigned to•Phase I. It is the decison of 'MCURC that 1/m Lutalo should remain assigned to MCU
at this time. Next Routine Review Is scheduled for 9/06. MCURC Chair: Mr. Kandell
The MCURC has reviewed evidence and considered the, testimony relative to 1/m .Lutalo at his routine review, pursuant to 10A:5-2.10. Based on the
above the MCURC has determined the following, which justifies the decision of the committee: The
M.C.U.
NEW JERSEY STATE PRISON
T R E N T O N , N E W J E R S E Y
CLASSIFICATION DEPARTMENT
CRITERIA RECORD SHEET
NO: SBI # 901548/59860
Name: Lutalo, ()lore
Date: October 17, 2005
PAST CRIMINAL RECORD INCLUDING OFFENSE(S) FOR WHICH COMMITTED:
Inmate Lutalo is currently serving twenty (20) years minimum with a Forty Eight (48) year seven
months and thirteen days (13) maximum for several crimes. He has also served time for the
following sentences:
Prison Parole Violation CT# 1 Max 4y 7m 13d
DOS 07/29/1977- active CS
Robbery
CT #1 Max 40y Om.Od – Min 20y Um Cid DOS 11/19/1992 active – CC
Assault
CT#3 Max 4y Om Od
DOS 11/19/1982 active – CC
Weapons/Possession for Unlawful Purposes CT # 5 Max 7y Om Od DOS 11/19/ 1982 active – CC
Weapons/Unlawful Possession of Weapon CT # 6 Max 4y Om Od DOS 11/19/1982 Active –CC
Assault/Aggravated
IL
CT #2 Max 4y Om Od Max 4 Om Od DOS 11/19/1982 active -CS
RECORDS OF PAST INSTITUTIONALIZATION'S:
Inmate Lutalo has been incarcerated in the State of New Jersey for majority of his adult and
adolescent life. According to his criminal history he entered the prison system in 1966 due to drug
addiction. He is serving his fourth (4 6 ) State Prison sentence and a one adolescent incarceration at
Bordentown. His criminal history also indicates that has served time for the following:
Date of Offense
1982 – present
Offense
Disposition
Robbery
Max 40y – Min 20y Current Sentence
Assault
Max 4y
Weapons/Possession for Unlawful Purposes Max 7y
Weapons/Unlawful Possession of Weapon Max 4y
Assault/Aggravated
Max 4y
1975- 1981
Receiving Stolen Property
Possession of a dangerous Weapon
Eluding Police
1970-1975
Robbery
Armed Robbery
1967-1969
Carrying a Concealed Weapon
Paroled 1981
Max Out 1975
Max out 1969
CC
CC
CC
CS
1966 –1967
Shoplifting
Carrying Concealed Weapon
Robbery
Robbery with a Weapon
Sentenced to Bordentown
ore
M.C.U.
NEW JERSEY STA'IE PRISON
TRENTON, NEW JERSEY
CLASS W1CATION DEPARTMENT
III.
DISCIPLINARY RECORD
During his present incarceration at New. Jersey State Prison, inmate Lutalo has received fifteen
charges, four of which are of asterisk severity and eleven non-asterisk charges.
5/03/1990
210 Poss. Not Authorized
Contraband Confiscated
8/15/ 1991
210 Poss. Not Authorized Contraband Confiscated & Verbal Reprimand
8/15/1991
210 Poss. Not Authorized
9/10/1991
10/17/1991
210 Poss. Not Authorized
202 *Poss/Intro. Weapon
11/03/1991
210 Poss. Not Authorized
11/04/1993
002 * Assault Any Person
11/27/1995
256 Refusing to Obey
5DTN
01/31/1999
803 *Attempt To Commit * Infraction
15 DTN, 180 LCT, and 180 Adseg
04/29/1999
11/05/2000
210 Poss. Not Authorized
210 Poss. Not Authorized
15 DTN, 90 ADSeg and 60 LCT
Contraband Confiscated
11/05/2000
210 Poss. Not Authorized
Contraband Confiscated
06/10/2005
8/01/2005
803-306 * Attempt at Conduct w/Disrupts 15 DTN, 365 LCT, and 365 Adseg
704 * Perp. Frauds/Esc Plots Contraband return to Sender & Currency
Verbal Reprimand
Contraband Confiscated & 30 days LORP
15 DTN, 180 LCT, and 180 Adseg
Contraband Confiscated
15 DTN, 180 LCT, and 180 Adseg
Confiscated
08/01/2005
705 Oper. Bus./Group w/o Approval Contraband return to Sender & Currency
Confiscated
08/01/2005
706 Solicit Funds/Contribution Contraband return to Sender & Currency
Confiscated
IV.INSTITUTIONAL RECORD ON WORK ASSIGNMENTS
A review of the inmate's work history indicates that he has worked during his incarceration at
NJSP as cell san, MCU Runner and Laundry Worker. No other work history available.
V.
ADJUSTMENT TO INSTITUTIONAL PROGRAMS:
A review of this inmate's file
indicates that he did not participate in any institutional programs.
VI.
RECORDS ON PAST HOUSING ASSIGNMENT
Since his initial incarceration at New Jersey State Prison, inmate Lutalo has been assigned to the
following housing units:
•
11/28/1999 – 01/16/2002
01/16/2002 – 01/29/2002
01/29/2002 – 09/19/2002
09/19/2002 – 06/10/2005
06/10/2005 – 07/11/2005
North 4B Left 08/30/2005- 10/13/2005 West – 7 Right
South 3 DD
10/13/2005-10/13/2005 North Observ. Cell
South 2 FF
10/13/2005-10/15/2005 North Observ. Cell
South 3 FF
10/15/2005 – North MD. OvFLO – Cell 01
West 1 Left
07/11/2005 – 08/01/2005
08/01/2005 – 08/05/2005
08/05/2005- 08/30/2005
West 7 Right
West 1 Left
West 1 left
Pa8
M.C.U.
NEW JERSEY STATE PRISON
T R E N TO N , NE W J ERS EY
CLASSIFICATION DEPARTMENT
VII. ATTITUDE TOWARDS AUTHORITY
Inmate Lutalo defiance and no regards for authority is q uite evident in his disciplinary record.
During his incarceration at this facility, he has received a several non -asterisk sanctions from
possession not authorized to more serious asterisk charges such as perpetrating frauds, deceptions,
confidence game, riots or escape plots etc.
In May of 2005 inmate Lutalo was found to be in possession of hand made "flyers/poster's" from
news clippings, firearms catalogue, books dealing with the Black Panthers, Crips and Bloods, 17
pictures of sniper and assault rifles.
Lutalo has created recruiting posters for the "Black Liberation Ann" B.L.A. The B.L.A. is a
Black Supremacist Organization closely tied to the Black Panther Party. The B.L.A. aided in the
escape of New Jersey State Prison inmate Jann Chesimard a.k.a. Assat a Shakur. The organization
espouses violence and the murder of police.
Inmate Lutalo has been associated with the Black Liberation Arm (B.L.A.) and throughout his
incarceration. He has obtained unauthorized publications and pictures dealing with weapons,
bombs and law enforcement equipment.
Inmate Lutalo has, throughout his incarceration, been actively. involved with any anarchist, radical,
left wing anti-government group particularly the Anarchist Black Cross Federation (A.B.C.F.) The
Anarchist Black Cross Federation (A.B.C.F.) espouses the overthrow of government through
violence.
Records indicated that the leader of a chapter of the A.B .C.F. has visited inmate Lutalo while
incarcerated.
This report also indicates that inmate Lutalo h as actively recruited other inmates throughout the
Unites States. He has also solicited monetary donations to support these activities.
As a result of the seizure in May of 2005 inmate Lutalo was issued a disciplinary charge
*803/*306 attempting to engage a conduct which disrupts because the confiscated items supported
violence toward police and authority.
Over the past few years, the following represents the approximate number of literature material
and catalogs have been seized from inmate Lutalo:
Explosives, Ammunition Weapons: 13
Survival Tactics, Strikes Information on Armored Vehicles: 6
Information on Disruptive Activities such as civil disobedience, riots and
strikes: 18
On two occasions the American Friends Service Commi ttee (AFSC) has attempted to send him
information and material with which to manufacture fraudulent identification documents.
Between February 2002 to February 2005 there have been thirty-four (34) mailroom seizures for
contraband/prohibited material.
It has been determined that inmate Lutalo has received approximately $2.099.15 between the years
of 2000 and 2005 from the Anarchist Black Cross Federation (A.B.C.F.) Inmate Lutalo d ribk
himself as a Political/Prisoner of War (P.O.W) and actively solicits monetary and non-m eaV
funding for these subversive groups.
M.C.U.
NEW JERSEY STATE PRISON
T R E N T O N , N E W J E R S E Y
CLASSIFICATION DEPARTMENT
Searches have resulted in the discovery of a videotape espousing Lutalo's political views. The
investigator's report concludes that this videotape was fraudulently made while inmate Lutalo was
incarcerated at New Jersey State P rison. This tape also solicits money from the viewer. It
instructs the viewer to send money to Bonnie Kerness, care of the A merican Friends Service
Committee (AFSC). Searches reflect that inmate Lutalo is a direct recipient of the proceeds from
the sale of this tape as well as from other sources.
In ma t e Lut a lo and Ms . K ern es s h a ve and e xt en si ve his to r y du rin g hi s in c a rc e ra tion . The
American Friends Service Committee is an organization based in the Quaker faith. Ms. Kerness is
described as an agent of this organization.
Ms. Kerness has during her relationship with inmate Lutalo, used her position in this organization
to send inmate Lutalo materials that espouse violence, certain information on weapons, and
military tactics and other information that could be used during an escape.
The AFSC has also sent to inmate Lutalo packages that have been intercepted that pertain to
Urban Guerilla Warfare, materials related to weapons, strikes, revolts and even materials to make
false identification documents.
Ms. Kerness has also visited inmate Lutalo. She has engaged in inappropriate conduct during a
window visit and has appeared naked during a visit session in September of 1993.
I t i s c l e a r fr o m i n ve s t i ga t o r D o l c e s r e p o rt t h a t i n ma t e Lu t a l o h a s t h r ou gho ut hi s e n t i r e
incarceration continued to actively involve himself in subversive groups and organizations whose
purpose is to disrupt, overthr ow and challenge by extremely violent means legitimate lawful
government agencies and organizations.
Inmate Lutalo almost routinely receives materials, writings and information catalogs that espouse
violence, civil disobedience. He repeatedly emerses himse lf in this violent disruptive ideology
with a sense of impunity.
It is based on his active involvement in organizations and with individuals whose entire existence
is based on the disruptive violence and chaos, that inmate Lutalo should be assigned to the
Management Control Unit.
PSYCHOLOGICAL MAKEUP
To be provided by the Psychological Department
VIII. INVOLVEMENT IN CRIMINAL ACTIVITIES WITHIN THE PRISON:
None Available
__
(oh/ (0
/v
NOTICE DELIVERED BY:
TITLE:
Pall)
Sep 13 2007 8:18AM
AFSC Newark NJ
9738431924
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUP RIOR COURT OF NEW JERSEY
APP LLATE DIVISION
DOC ET NO. A-3294-05T2
OJORE LUTALO,
Appellant,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
Submitted July 17, 2007 - De Before Judges C.S. Fisher an
On appeal from the Departmen Corrections.
p.
2
William H. Buckman, attorney
ided August 24, 2007 Grail.
of
for appellant.
Anne Milgram, Attorney General, attorney for
respondent
(Patrick ,
DeAlmeide
Attorney Assistant
General,
of
counsel; Susan M.
Scott,
Deputy
Attorney 1, on the
Generbbrief).
PER CURIAN
Appellant Ojore Lutalo is an inmate incarcerated at New
Jersey State Prison in Trenton. He is serving a forty-year
sentence, twenty years of which he was required to serve
without possibility of parole. He appeals from, final
decisions of the Department of Corrections (Department)
(finding him
gupigtf
Sep 13
2007
8:18R
M
97364319
24
p.3
AFSC Newark NJ
2
A-3294-05T2
disciplinary infractions, N.J.A.C. 101:4-4.1(a). We affirm
in part and reverse in part.
On May 19, 2005, Lutalo was charged with possession of
flyers, a card, a catalog, a magazine, paperback_ books and
photos of machine guns and rifles that the Department
alleged were related to a security threat group (STG). The
materials were forwarded to the Department's Special
Investigation
or interferes with the security or orde correctional facility.
On July 11, 200 and received a sanction of 15 days' det
administrative segregation and 365 days
Department (SID), but its officers det did not qualify as STG
materials. L t
Lutalo's
cell
was
searched
again
additional
written
materials, includin various stages of completion and a bag
clippings
used
to
produce
the
posters,
possession
of
the
materials seized in 2005, Lutalo was charged with discipli
*.803/.206, attempting, aiding or planr
rmined that the materials lo was found not guilty.
June 1, 2005 and handmade posters in containing newspaper
were seized. Based on ay and June, on June 10, ary infraction
ing conduct that disrupts rly operations of the 5, he was found
guilty ention, 365 days'
' loss of commutation
credit. On July 14, 2005, his administrative appeal from
that determination was denied and the finding of guilt and
sanction
Pal2
were upheld.
Sep 13
2007
9:18AM
97364319
24
AFSC Newark NJ
p.4
On August 5, 2005, Lutalo was chrged with the following
]
3
A-3294-051'2
additional infractions: *.704, perpet ating fraud, deceptions,
confidence games, riots or escape plo
.705, operating a
business or non-profit enterprise wit out approval of the
Superintendent, and .706, soliciting unds or contributions
except as permitted by the Administrator. On August 29, 2005,
Lutalo was found guilty of all three charges and received a
sanction equivalent to time he had served pending adjudication
of the charge. _In addition, he was re uired to forfeit funds
deposited in his account and his typew iter and its ribbons.
On September 1, 2005, his administrative appeal was denied and
the finding of guilt and sanction were uph ld.
Lutalo filed a notice of appeal f om the July 14 and
September 1, 2005 final decisions on M rch 2, 2006. On March
20, 2006, this court granted Lutalo leave to file the appeal as
within time. After he filed his brief on the merits, the
Department moved for a remand to permit further review of the
*.803/.206 charge. That motion was initially denied but
subsequently granted on the Department s motion for
reconsideration. On remand, a hearing officer reviewed the
evidence and concluded that the charge should be downgraded
from *.803/.206, attempting, aiding or planning conduct that
disrupts or interferes with the security or orderly operations
of the
Pa13
Sep 13 2007 8:18AM
AFSC Newark NJ
9736431924
4
correctional facility, to .210, possession of materials not
authorized for retention. The officer went to Lutalo's cell
in
a "close custody housing unit," spoke to him at his cell
d o o r and "advised him that the charge had bben downgraded to OTSC
[an
on-the-spot correction] with a sanctio 1 of confiscation."
Subsequently, this court granted the D ?partment's motion
supplement
the
record
with
the to officer's report
and
hearing
reserved decision on the Department's motion to dismiss
Lutalo's appeal from the *.803/.206 charge as moot.
Lutalo, who is represented on thi appeal, raises
the following arguments:
I.
THE JUNE [2005] AND AUGUST 2005
DISCIPLINARY SANCTIONS 1UST BE
VACATED BECAUSE THEY WERE NOT B SED
ON
SUBSTANTIAL EVIDENCE T T MR. LUTALO
COMMITTED A PROHIBITED CT AND
VIOLATED PRINCIPLES OF FAIRNESS.
II.
MR. LUTALO'S JUNE 2005
DISCIPLINARY SANCTIONS, BASED IN
PAR ON HIS POSSESSION OF ITEMS
THA FORMED THE BASIS OF HIS MAY
2005 D SCIPLINARY CHARGE,
VIOLATED PRINCILES OF
FUNDAMENTAL FAIRNESS.
1
P-5
A-3294-05T2
III. D I S G U I S E D A S D I S C I P L I N E F O R
REGULATIONS VIOLATIONS THE ACTIONS
HERE
IMPROPERLY DEPRIVE MR. L TALO
OF EXPRESSIVE RIGHTS.
The issue raised in Point II of Lutalo's brief lacks
sufficient merit to warrant more than the brief comment
that follows. See R. 2:11-3(e)(1)(E). Neither the law
noRaiA.
5
Sep 13 2007 8:18AM
A-3294-05T2
AFSC Newark NJ
9736431924
record supports the claim. Because "[p]rison
disciplinary
hearings are not part of a osecution, Wolff
v.
criminal
McDonnell 418 U.S. 539, 556[,] 41 L.
935,
,
[951,]
S.
Ct. 2975]
(1974), and therefore
do not 94
2963
implicate
[,
double
jeopardy concerns, see Breed v. Jones, 421 U.S. 519, 528,
pr
E
d
.
2
d
44 L. Ed. 2d 346[, 354-55,] 95 S. Ct. 1779[, 1785] (1975)
(application of the double jeopardy clause is limitrd
to proceedings which are 'essentially criminal')."
Lucero I. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994).
Department issued the June charges after a second
search of Lutalo's cell and confiscation of additional
materials adequate to suppo t the charge. Thus, the
infraction was based, at least in part on different
evidence and conduct. For that reason, we decline to
The
consider whether principles of fundamental fairness
would bar repeated attempts to establish disciplinary
infractions lased on the same conduct.
Lutalo's challenge to the adequacy of the evidence
supporting the June 2005 charges, which is argued in
Point I of his brief, is moot. On remand from this
court, the June 2005 charges were downgraded to an onthe-spt correction for
1
possession of unauthorized materials. The adjudication
and sanction imposed as a consequence of th'e *.803/.206
charge have been removed from his record. Lutalo dpes
not contend that he was denied the procedural
protections rOquired prior
to minor
Pa
15
Sep 13 2007 8:18AM
AFSC Newark NJ
p.7
9736431924
6
disciplinary action of the sort involved here or that his
possession of the materials was authoilized. See N.J.A.C.
10A:4- 7.2(a),(e); Avant v. Clifford, 67 N.J. 496,
519 (1975) (concluding that N.J.A.C. 10A:4-7 affords
all procedural protections due prior to an on-the-spot
correction).
The Department's determinations triat Lutalo
committed infractions *.704, perpetrating fraudd
A-3294-05T2
deceptions, confidence games, riots or escape plots;
.705, olIrating a business or nonprofit enterprise
without_ approval of -.he Superintendent; or .706, which
prohibits solicitation of funds or contributions except
as permitted by the Administratpr, cannot, however, he
affirmed. The record does not include sufficient
credible evidence to support a finding of guiltion any of
those charges.
On July 26, 2001, the Department ranted "Michael
Hajduk Media Representative" permission to interview
Lutalo. Hajduk completed a form agreement prepared
bylthe Department. On the
1
form, he provided a phone number and iqentified himself
as a "freelancer." He agreed to "provide nq compensation,
either direct
or
indirect," to Lutalo or members of his
family. He acknowledged that the "videotape or film is
for broadcasts or airing no more than twice on the
statidn of origin for news or documentary purposes . . .
and that the sale or rental of film,
Pal6
Sep 13 2007 8:18AM
AFSC Newark NJ
9736431924
7
videotape, movie or other material for additional
p.8
A-3294-05T2
pecuniary gain is prohibited."
Lutalo signed a consent form prepared by the
Department on which he acknowledged his agreement tcJI be
interviewed by Hajduk, a "media representative" with
"Comcas Cable." He also acknowledged his consent to
Hajduk's use of any videotape and
1
information gathered, and the Department's release of any
1
relevant information about him. The form Lutalo signed
does not
refer to the agreement between the freelancer and the
Department or otherwise limit use of the video.
I
The record does not include any d cument in which
either Lutalo or Hajduk made any representaticr about
the content of the interview. Neither Hajduk's
agreement nor Lutalo's consent form addresses the
subject matter or plrpose of the interview. The
investigation report states that Hajduk's video was to
be entitled "MCU's Extended Isolation andPrisoner's
Rights," but the basis for that conclusion drawn
by/the Department not identified.
is
A videotape of Lutalo entitled "Welcome to the
Terrordome" was produced. According to the Department's
report, that video shows Lutalo discussing "Attica and
Prison Reform," "Purpose of
1
State and Class," the "Black Liberation
Army"
and "Banned and
Censored." Comcast's President subsequently
told a SID
Pali
Sep 13 2007 8:19AM
AFSC Newark NJ
9736431924
8
P.9
A-3294-05T2
investigator that Hajduk never worked as a reporter or
freelancer for Comcast, but the President also
explained that Hajduk "airs a program on a community
access channel and uses their editing facilities."
Bonnie Kefness, of Prison Watch, wrote to Lutalo and
suggested production of a video telling
1
Lutalo's story for a cable show known as "Konnections."
The Department's investigators se6rched the internet
and found a website on which a video of the Lutalo
interview was offered for sale at a price of $15.00 faith
a representation that the "Proceeds from sales are sent
directly to Ojore [Lutalo]." A flyer promoting the video
was among the documents found in Lutalo's cell. While
that flyer provides information on how to obtain a copy
of the video, it does not refer to sales or a sales
price.'
The "confidential appendix" the Department
submitted on this appeal includes articles that a
reasonable person could understand as soliciting
cash and postage stamps for distribution to
specified inmates, including Lutalo. One of the articles
lists Lutalo as a member of aicommittee that makes
decisions about distribution of the contributions
collected.
Although this flyer is included in the
Department's confidential appendix, we cannot conceive
of any justification for preventing Lutalo from
reviewing that evidence.
Sep 13 2007 8:19AM
Pal8
AFSC Newark NJ
9736431924
9
Another includes a statement praisingit,is support
program that is attributed to Lutalo.
The Department also reviewed records of Lutalo's
prison trust account. Deposits in varying amounts
totaling _$2098.15 were made between January 1, 2001 and
August 1, 2005, by "Lancaster ABCF," a branch of the
Anarchist Black Cross Federation, and Fasnacht, a
member of ;that organization. Without stating a basis
in the record,; the Department concluded that these
deposits, some of which-were made prior to the July 2001
interview, were from proceeds of 'the sale of the video.
Lutalo maintained that these deposits were
donations. Fasnacht, who identified himself as a Member
of the ABCF, submitted a letter in support of that
p.10
A-3294-05T2
claim. According to Fasnacht, he organized the support
program and Lutalo received donations but had no role
in the solicitation.
The hearing officer's decision, which was adopted by
the Department without additional comment or explanation,
includes the following findings. A representative from
Comcast Cable was given permission to interview Lutalo
for purpose of producing a program "entitled MCU's
Extended Isolation and Prisonersp] Rights." The video
produced after that interview was entitled "Welcome to
the Terrordome." The interviewer's agreement with the
Department prohibited sale of the video. Deposits were
made
Pal9
10
Sep 13 2007 8:20AM
FIFSC Newark NJ
A-3294-05T2
9736431924
to •utalo's account, which he contends are
donations. Ferness did not explain how Lutalo had a
vided for sale and did not provide her address or
phone number in her letter. Based on those findings,
and without further explanation, the hearing officer
concluded that Lutalo was "guilty of all three
charges."
p.11
Although this court may not substitute its
"judgment for that of the agency where [the]
findings are supported by substantial credible
evidence in the record," Johnson v. Dept
of Corr.,
375 N.J. Super. 347, 352 (App. Div. 2005); see
Henry
v. Rahway State Prison, 81 N.J.
79-80 (1980)
571, 5
(discussing
review of decisions of an administrative agency), "we
cannot be relegated to a mere rubber-stamp of agency
action." Williams v.
Dept of Corr., 330 N.J.
Super. 197, 204 (App. Div. 2000). We do not affirm
an agency decision that is not supported by
substantial credible evidence in the record.
In this case, the evidence does not support the
decision made by the hearing officer and adopted
by the Department. There is nothing in this record
that indicates that Lutalo made any representation
about the subject matter of his video interview or
any false representation about Hajduk's status or
affiliation. We see no basis for the conclusion that
Lutalo engaged in conduct involving false pretense,
fraud or deception in connection with the video,
and the Department's decision does
Pa
20
Se p 13 2 00 7 8 :2 0A M
AF SC N ew ar k N J
97 36 43 19 24
not explain how it reached that conclusion. The
Department's decision is not based on a finding
that Lutalo benefited from and lent his name to a
campaign for charitable contributions; it is based
only on the Department's conclusion that the
deposits were traceable to sales of the video.
There was no evidence linking the deposits
in Lutalo's account and proceeds from the sale of
the video and no evidence of Lutalo's involvement
in marketing the video or soliciting
contributions in return for its distribution.
The Department's
decision is nothing more than a
sory assertion of
conclu
Lutalo's
guilt that is not supported by or ained with reference
expl
to
substantial credible evidence in the record. More
is required to permit us to defer to the
expertise; of the Department and its
investigators. See Williams, supra, 330 N.J.
Super, at 203-05.
The adjudication and penalties imposed for
p. 12
disciplinary infractions *.704, .705 and .706 are
reversed and vacated; the on-the-spot correction
for possession Of unauthorized materials is
affirmed; the Department previously:vacated the
adjudication and penalty imposed for infractions
*.803/.206.
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21
11
MCU — 2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutale, Ojore
NUMBER: 59860/901548
_ The MCURC had reviewed evidence and considered the testimony relative to Inmate Lutalo his routine review,
pursuant to 10A:5-2.10. This evidence includes:
x 1.
x 2.
x 3.
x 4.
X. 5.
x 6.
x 7. .
x 8.
x 9.
Documents supporting initial: placement decision
Disciplinary Reports
• Program Participation Report
Social Services Report
Medical Report
Psychological Interview Report .
Special Investigation. Division Report
Compliance with revised MCU placement phases
Housing Reports
mate Statements / Comments
"Pm being persecuted and discriminated against. You feel that my affiliation with the Black Liberation Army and
the Anarchist Black Cross Foundation poses a problem. "I'd like to know what's the problem? The State Police, FBI
and Homeland Security are aware Of it. What concerns do Administration have with my political affiliation? In
2002, I was released into GP with the same affiliation.
Based on the above the MCURC has determined the following, which justifies the decision of the
committee:
The MCURC notes your"concems,regarding your feelings.of persecution and discrimination based on your-political
affiliation. The Committee continues to •. show concerti regarding your admitted affiliation with the Black
Liberation Army and the Anarchist Black Cross Foundation. Your radical views and ability'to influence others poses a
threat to the orderly operation of this Institution. Furthermore, you have yet to complete any of the necessary programs
21-3294-05T2
required for consideration of release from the Management Control Unit. Your actions continue to pose a threat to the
safety and security of any. correctional facility:
Inmate Lutalo is assigned to Phase I o
circle one)
It is the. decision of MCURC that'Inmate Lutalo should remain assigned to the Management Control Unit at this
time..
Next Routine Rev'ew i scheduled for
I Ms. Raupo
true and accurate cord of
Mav, 2008
certify that the above represents a
proceeding.
MCURC Chair Mr. Warren
•
1111Arkam
Custody Supervisor Lt. Moran
Date 2/28/2008
Professional Services Representativ Mr Zell
Decision delivered to inmate _____________________________________
Name and Title
3 _5
Date of delivery ________________________
CC: MCU
Folder Classification File
• - MCU-5.
Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION ANNUAL
REVIEW — 4T11 ROUTINE REVIEW
NAME:
Lutalo, Ojore
NUMBER:
Pa23
59860/901548
I.
The Management Control Unit Review Committee (MCURC) has considered the evidence and testimony
submitted by inmate Lutalo at his Annual Review, pursuant to N.J.A.C. 10A:5-2.11. It is the opinion
of the committee that inmate Lutalo has/has not demonstrated to the Committee that he is a suitable candidate to
be considered for release from the Management Control Unit for the following reason:
Inmate
Lutalo
has/has not:
1.Participation in required programs, jobs, educational and recreational programs
2.Complied with the criteria detailed by the MCURC
_____ 3.
Maintained good disciplinary conduct
x 4.
Agreed to affirm the obligation to adhere to institutional rules and regulations.
INMATE Lutalo
STATEMENTS/COMMENTS:
"I have congregate status and Ricci moved me down here so I can't participate in any programs." Inmate Lutalo
also provided a written statement.
COMMENTS:
The MCURC notes your request to be released into general population or transferred to another state facility. The
Committee believes that continued placement in .MCU is necessary at this time. Your admitted affiliation with
the Black Liberation Army and the Anarchist Black Cross Foundation continue to cause a concern for the
Committee. Furthermore, you have yet to complete any of the necessary programs required for consideration of
release from the Management Control Unit. Your actions continue to pose a threat to the safety and security of
any correctional facility.
Inmate
Lutalo
is assigned to Phase I or
(circle one)
Your next Routine Review is scheduled for
Februar 2008
Your next Annual Review is scheduled for
November 2008
Special Classification Committee:
airman: Mr.
Professional Services: Mr. Zell
Custody: Lt. Moran
/1_3.
A4
Decision delivered to inmate by
Date of .delivery h66.-t-q/C
f-CX—C------1-Th • Name and Title
cc: MCU Folder Classification File
MCU — 2,
Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutalo, Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate
Lutalo his routine review, pursuant to 10A:5-2.10. This evidence includes:
x 1.
Documents supporting initial placement decision
2.Disciplinary Reports
3.Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
9.Housing Reports
Inmate Statements / Comments
"I have congregate status and Ricci moved me down here so I can't participate in any
programs." Inmate Lutalo also provided a written statement.
Based on the above the MCURC has determined the following, which justifies
the decision of the committee:
The MCURC notes your request to be released into general population or transferred to
another state facility. You can request an Interstate Transfer Request form through your Social
Worker. The Committed also notes from your written statement that a former MCU inmate
was transferred to a "halfway back" program and you would like to be afforded the same
opportunity. Please note that inmates are transferred to "halfway back" programs as a condition
of Parole. The Committee continues to show concern regarding your admitted affiliation with
the Black Liberation Army and the Anarchist Black Cross Foundation. Furthermore, you
have yet to complete any of the necessary programs required for consideration of
release from the Management Control Unit. Your actions continue to pose a threat to the
safety and security of any correctional facility.
Inmate Lutalo is assigned to Phase I
or
(circle one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management
Control Unit at this time.
I Ms. Raup
true and acc
e rec
t e pr s c ding.
Mr. Warren.
MCURC Chair
certify t
t the above represents a
theklwAi
Professional Services Representative
Custody Supervisor Lt. Moran Date 11/29/2007
Mr. Zell
Next
Routine
Review is
heduled
for
Date of delivery )),e--../c;,Xf-'--C '7-0137
Februa
008
Name and Title
Decision delivered to inmate by
Pa24
cc: MCU Folder Classification File
MCU — 2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROT ITINR REVIEW
NAME: Lutalo Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate Lutalo his
routine review, pursuant to 10A:5-2.10. This evidence includes:
1.Documents supporting initial placement decision
2.Disciplinary Reports
3.Program Participation Report
4.Social Services Report
5.Medical Report
x 6.
Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
x 9.
Housing Reports
Inmate Statements / Comments
Inmate Lutalo, Ojore refused to attend his August, 2007 Routine Review.
Based on the above the MCURC has determined the following, which justifies the decision
of the committee:
The MCURC notes your refusal to attend your August, 2007 Routine Review. You are encouraged
to attend all Routine/Annual Reviews as well as all available MCU programs. You have yet to complete
any of the required programs for consideration of release from the Management Control Unit. While
serving Administrative Segregation time in 2005, you received several institutional infractions
including soliciting funds, operating a business /group without approval and perpetrating
frauds/escape. Your actions continue to pose a threat to the safety and security of any correctional
facility.
Inmate Lutalo is assigned to Phase I or Phase II (circle one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management Control
Unit at this time.
November, 2007
Next Routine Review is s I eduled for
I Ms. Raupp
tify that the above represents a
true and accurate r or I o th
ceeding.
MCURC Chair Mr. Salaga
Professional Services Representative
Custody Supervisor Lt. Moran Date 08/30/2007
J
Decision delivered to inmate by
4, 0 (4A
11
Name and Title
Date of delivery
cc:
MCU Folder Classification File
MCU —2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutalo, Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate Lutalo his
routine review, pursuant to 10A:5-2.10. This evidence includes:
x 1.
x 2.
Documents supporting initial placement decision
Disciplinary Reports
Zell
x 3.
Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
9.Housing Reports
Inmate Statements / Comments
Inmate Lutalo, Ojore refused to attend his May, 2007 Routine Review.
Based on the above the MCURC has determined the following, which justifies the decision of
the committee:
The MCURC notes your refusal to attend your May, 2007 Routine Review. You are encouraged to attend
all Routine/Annual Reviews as well as all available MCU programs. While in Administrative Segregation
you received several institutional charges including soliciting funds, operating a business/group
without approval and perpetrating frauds/escape. This type of behavior poses a threat to the safety and
security of any correctional facility.
Inmate Lutalo is assigned to Phase I or Phase II (circle one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management Control
Unit at this time.
Next Routine Review is sc eduled for
I Ms. Raupp
August, 2007
certify that the above represents a
true and accurate re or • of the ro e MCURC Chair Mr. Kandell Professional Services
Representative _________________ Custody Supervisor Lt. Moran
Date 05/31/2007
Decision delivered to inmate by
t.
Date of delivery
cc:
Cp(
f\-4-4‘, (A44
Name and Title
(U /
MCU Folder Classification File
MCU — 2 Revised 12102
cc:
IvICU Folder
Classification File
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME:
Lutalo, Oiore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to
Inmate
Lutalo
at his routine review, pursuant to 10A:5-2.10. This evidence
includes:
1.Documents supporting initial placement decision
2.Disciplinary Reports
3.Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
x9.
Housing Reports
Inmate Statements / Comments
We have 2 due process violations. I was supposed to come in September and December. The charges that
initially brought me back up here the court ruled illegal. I don't have no status so I can't participate in
any groups.
Based on the above the MCURC has determined the following, which justifies the decision of the
committee:
The MCURC notes your return to MCU as well as your lack of program participation. While in
Administrative Segregation you received several institutional charges including soliciting funds, operating a
business/group without approval and perpetrating frauds/escape. This type of behavior poses a threat to the
safety and security of any correctional facility. You are encouraged to participate in all available programs.
Inmate
Lutalo
- is assigned to Phase I or (Phase II) (circle one)
It is the decision of MCURC that Inmate
Lutalo
(should) /
should not remain assigned to the Management Control Unit at this time. Next Annual Routine
Review is scheduled for May, 2007.
true and accurate record of the proceeding.
MCURC Chair Mr. Kandell
Professional Services Representative Dr. Farber
Custody Supervisor Ca stain Ortiz
Date
2/27/07
Decision delivered to inmate by _________________
Na and Title
Date of delivery
I Ms. Raupp
3c7
certify that the above represents a
C: On file
To: AanagementControl Unit Review- Committee (MCURC)
Fr.: Ojore N. Eiutalo, 59330 3 901543 4 2B - Ieft
Re: Disciplinary Infractions: *.303 /
*.704,.705 &
. 7 0 6 Lutalo Vs. New Jersey D. of Corrections - Docket 4
A3294-05T2
DA: November 6th, 2007
The above captioned disciplinary infractions were the basis of
Criteria Record Sheet Which resulted in re-interment in the A.C.U.
back in Nov. 2005 & since then, the M.C.U.?.C. have utilized these
trumped-up disciplinary infractions to circumvent release from the
M.C.U.
.•lly
my.
my
At this time, Lam petitioning the '4. J.'2. to release me back
into the general population here at Trenton State Prison (or).
Preferably, Transfer me to another State Prison due to the limited
time left on my sentence. And the fact that after I filed
brief on
the merits in the above captioned matter, the Administration moved
for a remand to review the *.803/*.306 disciplinary infractions and
the adjudication and sanctions imposed as a consequence of the
*.803/*.306 disciplinary infractions were vacated and removed from
my Record. therefore the above listed charges should also be expunge
from 'Classification Folder" based upon the App. Div.'s decision.
-ciy
my
The adjudication and. penalties imposed for disciplinary infractions
*.704, .705 & .706 were reversed and vacated by the Appellate
Division of the Superior Court on August 24th, 2007.
For the record, when I got locked up on June 10th, 2005 for the
*.303/*.306, I had been out of the M.O.:J. for four years and eight months
without incident, my custody status was medium with '2' points and I was
slated to appear before the Parole Board on June 16th, 2005.
The New Jersey Dept. of Correction is listed a contracting agency with
Tully House & The Harbor that offers reintegration assistance
programs. I would like to be considered for placement in such a
program at this time.
It is possible to be transferred directly to such a program from the
M.C.U. Another prisoner named Rajabu Ogbonna Khalfani, 470774 was
transferred direct tg a Newark, New Jersey based halfway back program
from Kanagement-Control Unit.
Foot Note: I also found not guilty of the Aay 19th, 2005
Disciplinary Infraction - *.011, that is noted in
Criteria Record
Sheet of October 17th, 2005. I was found. Not Guilty on May 26th, 2005
in General Population.
miry
Pa28
NEW JERSEY STATE PRISON
OFFICE OF THE ADMINISTRATOR
MEMORANDUM
DATE: January 9, 2006
TO:
Inmate Ojore N. Lutalo #59860/901548
FROM:
Michelle R. Ricci, Associate Administrator
4B- Left
SUBJECT: Your letter dated November 29, 2005 regarding reassignment to
the Management Control Unit, Mail, and Interstate Transfer
I have received your letter, dated November 29, 2005, concerning the above
captioned subject. Your letter indicated that you are contesting your
reassignment to the Management Control Unit. You're also contesting the
allegation that you have been receiving an unauthorized publication at this
institution. In addition, if you're not released from MCU back to general
population, you are requesting a transfer, via the Interstate Compact Agreement
to Alaska, Oregon, New Mexico, and/or the Federal Prison System.
Be advised, upon review of your Classification folder and the Criteria for
Commitment Sheet that was provided to you at the last MCU review, your
request to be released back to General Population is DENIED. According to your
disciplinary record, you were found guilty of several non-asterisk sanctions from
possession not authorized to more serious asterisk sanctions such as
perpetrating frauds, deceptions, confidence game, riots, and escape plots. As a
result, the MCU committee took the severity of these charges into consideration
along with your past disciplinary record when you were reviewed for placement.
Furthermore, in regards to your mail, it is a fact that you-have been receiving
unauthorized publications that are considered security threats to the institution. In
May of 2005, you were found to be in possession of hand made "flyers/posters"
from news clippings, firearm catalogues, books dealing with the Black Panthers,
Grips, Bloods, and seventeen (17) pictures of sniper and assault rifles. Mr.
Lutalo, if you are requesting a transfer to another state, via Interstate Compact
Agreement, you should write to the Classification Department or contact your unit
social worker to assist you with this matter.
CH:c
Cc:
File
To: Donald Mee Jr. Assistant
Warden Chairperson MCUSCC
From: Ojore N.
Lutalo
#59860/
SBI#901548
#4B-Left
Pa29
Date: November 29th, 2005
Re: Political decision to re-assign me back
into the Management Control Unit (MCU)
This appeal is being composed to contest my re-internment
into the Management Control Unit (MCU).
I readily admitted being associated with the Black-Liberation
Army (BLA), the Anarchist.Black Cross Federation (ABCF) and
the American Friends Service Committee (AFSC) because I have
a "sup7 posed" First Ammendment right of freedom of peaceable
assembly which has been violated by` the MCU-SCC's decision to
re-assign me to the MCU because of my associations with the
above named organizations, who at no times were involved in
any illegal or illicit activities with me that could cause
the disorderly running of Newffersey State Prison. There is
no documented record of since I have been here, at New Jersey
State Prison since September 1982.
Moreover, this Administration was fully aware of my past
associations with the BLA and my present associations with
the ABCF and the AFSC. When they released me back into
general population here at New Jersey State Prison on
January 16th, 2002 after I served 16 illegal years in the
MCU on trumped up administrative conspiracy to escape
allegations, that the Special Master in Pack v. Beyer case
found had nomerit.
At that time, if the Administration felt that my
associations with the BLA, ABCF and AFSC and now the New
World Generals, the
page two
so called militaristic and radical off shoot of the Nation
of
of Islam and it's Death Squad, would or could pose a threat
to the orderly running of New Jersey State Prison, the
Administration could have contested my release back. into
the general population
in the state or federal courts on security concerns and I am
certain
that
the
courts
would
.have.sided
with
the
Administration's security concerns.
I was Released from the MCU on January 16th, 2002 and
remained incident free up until June 10th, 2005. As late as
February 2005, you, yourself Donald Mee, noted my positive
adjustment since my release from the MCU and even
encouraged me to consider a transfer to Southwood State
Prison at my February 2005 routine Classification review.
I am also contesting Investigator R. Dolce's allegations
that
have been receiving unauthorized publications. All of the
publications that I ever received here at New Jersey State
Prison were approved for my possession by the mail room
censors.
For your information I am enclosing 3 Notorized letters from
people who have sent publications over the years that I
received through the mailroom. All I have done is adhere to
my rights and responsibilitieS-iii-terms of.having reading
material sent to me in .accord with 10A:4-3.1 Notification of
Prisoners of their Rights and Responsibilites.
(A)
(B)
Rights Number 9, "You have the right_to
a wide range of reading material for
educational purposes and for your
own enjoyment"
Responsibilities Number
"It is your
responsibility to seek and
utilize reading material
for your personal benefit,
without
depriving others of
their right
k.._ _
t o use same"
—771g-iggriNMfrrr7
page three
1.Correspondence from Matthew R. Tubin, dated May 21st,
1999.
2.Correspondence from Matthew R. Tubin, dated June
22nd, 1999. 3: Correspondence from Timothy A.
Fasnacht, dated May 25th, 1999.
Since June 10th, 2005 (starting 6 days before I was to
appear. before the Parole Board on June 16th, 2005),
Special Investigation Division (SID) Agent R. Dolce has
written me 8 disciplinary reports and during the course
of his campaign of political persecution against me, he
has in concert with pillion passengers, taken 'evidence
from 1 disciplinary infraction that I was found not
guilty of and used it to write me up another
disciplinary infraction that I was found guilty of.
Because of such criminal behavior, I do not give
credence to anything Agent R. Dolce say and :view him as
a man and an Agent of no integrity, who should not hold
such a position.In conclusion, I hold the position,that I have
demonstrated through my 4 year positive adjustment out
of the MCU, I can function in any general population
setting if my political past is not used
judge .
Being a man who do not harbor any illusions, I do not
ever expect to be released back into general population
here at New Jersey State Prison, so I am open for a
transfer to: Alaska, Oregon, New Mexico or into the
Federal Prison System....
Enclosures
: as noted
CC: file
Pa32
(1)
G-125
Department of Corrections
NEW JERSEY STATE PRISON
Revised 12/2002
NOTICE OF CLASSIFICATION DECISION
MANAGEMENT CONTROI t NIT PLACEMENT
NAME: Lutalo, Oiore
NUMBER: 59860/901548
ASSIGNMENT: Management Control Unit
REASON: After thorough consideration of your case, and in accordance with N.J.A.C. 10A: 52.6(2)(q), including the matters discussed at your recent classification hearing.
EVIDENCE RELIED UPON:
Chairman:
Professional Services:
Custody:
Social Services
Donald Mee, Jr.
Dr. DeFlippo
Captain Bleistein
Marshall Fletcher (Recorder)
Lutalo Oiore #59860/901548 - On November 9, 2005, inmate Ojore appeared before the MCURC with his paralegal
inmate Ukawabutu, Ra'Zulu #236126/487907B. Both inmates acknowledged they were prepared and ready to proceed.
During the course of this Management Control Unit Placement Hearing, the following items were considered:
1.
The Criteria Record Sheet.
Chair:
Introduces Committee and states the purpose for the hearing and explains the proceedings as to the
Criteria Record Sheet and challenges by inmate. "Item 1-VIII.
Chair:
This is your MCU Placement Hearing. You have been here before. Pertaining to your Criteria Sheet where
do you want to start?
Inmate:
We can start with, go through the Criteria sheet.
Chair:
Do you need a minute to go through the information/Criteria Sheet with the Paralegal?
Paralegal:
Yes, Mr. Mee can you give me a minute to go through the paper work.
Chair:
Sure, tell me when you are ready (couple minutes lapsed.)
Chair:
Are you ready?
Paralegal:
Yes, most of his statement will be supported by paper work that will be given to the Chair.
Paralegal:
Hands A-1 to Chairman Mr. Mee Document A 3 pages (MCU
Hearing of State for the record dated 11/9/05)
The Chair noted that Section VII Attitude Toward Authority is a summarization of Investigator Dolce's report of August 9,
2005.
Chair:
Inmate:
This document is recorded and noted 1 (3) three pages dated November 8, 2005 (Ref: Initial Placement
Hearing response/partial) (Attitude Toward Authority)
On Section VII Attitude Towards Authority; in 1986, I received
charges of Conspiracy to escape and violent demonstrations while
on the MCU on the Classification Decision dated March, 1986 that I
never received that disciplinary infraction on the alleged escape plan
and riot charges.
Chair:
(2)
This initial placement is different from the one heard by the "Special Master" this is a different
placement all together.
Paralegal:
Handed Chairperson (notice of Classification Decision) dated March 18, 1986.
Chair:
This document is labeled Doc #A-2 (Notice of Classification Decision dated
March 18, 1986.
Inmate: The Classification Decision document states that I was implicated on trying to
escape and violent demonstrations at the prison. But I never received the charges.
Paralegal:
Handed chair documents dated 11/09/05 (MCU Hearing of statement for the
record.)
Chair: Okay, this statement submitted is labeled Doc. A 3 (2) two pages dated 11-9-05
(MCU Hearing of 0 Lutalo #901548 statement for the record)
Paralegal:
Section III of the MCU Criteria Sheet list the four (4) disciplinary charges for the
year of 2005 are all pending Appeals to the Appellant Division. It should be noted
that Mr. Lutalo has been cleared by the special master on the Pack v. Beyer
decision of the incident which resulted in his initial placement in MCU.
Chair:
Section III those charges may be pending from the Appellant Division however your
placement is different from your previous, from the master in the Pack v. Beyer
decision.
Inmate:
Chair:
Paralegal:
Okay, but there are other issues of the Criteria sheet. I want talk about, for example my political views.
Okay.
Also in response to Section V of the MCU Criteria Sheet does not reflect that Mr. Latalo has participated in any
programs. Mr. Lutalo participated in the program Senior Men, and has received a certificate showing his completion
(Paralegal hands Chair a copy of certificate)
Chair:
Certificate showing program completion (Seniors United to Motivate) dated August 29, 2002 is labeled as Doc. A-4
for the record.
Paralegal:
Section VII of the MCU Criteria Sheet consists primarily of information and incidents
that are unsupported, or which Mr. Latalo was cleared of. Mr. Lutalo has
presented his own written objections to these noted incidents.
Chair:
What is concerning us is that while you were in the Management Control Unit and
General Population you continued to involve yourself with groups of a radical nature that
focus on the disruption of the prison security and the orderly running of this
institution.
Inmate:
I was a member of the (Black Liberation Army) BLA since the
1970's. You are saying that I am guilty due to my association.
Nineteen eighty -one (1981) when I was on Parole. I was involved out in society with this organization which
was political and had no problems.
Chair:
Pertaining to your Criteria Sheet there is not a problem with association, however
your actions and activities are the problem.
Inmate:
It's a Black support organization and my association has nothing to do with New
Jersey State Prison.
Chair:
Your involvement continues to be subversive in naturepa34
Paralegal:
Chair: Noted:
Noted:
Noted:
Noted:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
(3)
Hands chair remaining documents listed. Noted inmate A8 items
seized during a cell search dated June 5th and June 6, 2005 (10) ten
pages; five pages (What is A5 Anarchist Black Cross Federation) A6
copy of the Trentonian dated Sunday December 21, 1975 (Bank heist
suspects nabbed in gun battle) Courtline date of Tuesday October 25,
2005 Re: Potential persecution-disciplinary report 803/306.
Letter to Special Investigations Division dated June 5, 2005 and June 6, 2005 labeled as Doc.
A5 (10) ten pages.
Copies of newspapers (what is the Anarchist Black Cross Federation) labeled A5 (5) five pages.
Copy of newspaper (the Trentonian (4) four pages (Bank heist suspects nabbed in gun battle)
labeled A6.
Letter to Courtline ref: Political Presentation Disciplinary Rep. 803/306 dated October 25, 2005
labeled A7 (5) five pages.
It is not like I was using the organization to receive documents and other materials for any type of
subversive reasons. All the publications in question in the Criteria Sheet came through the mailroom
and receiving the materials now in questions is one of my rights and one of my responsibilities as
articulated in the New Jersey Department of Corrections hand book or discipline for prisoners.
Yes, the confiscated materials in question.
I still have a problem with the Criteria Sheet VII, attitude towards authority; information it was written
by Investigator Dolce and hi has been trying to get me since 1985.
The information in that section was investigated by Dolce.
The Management Control Unit Special Classification Committee (MCU-SCC) should disregard the
reference being made to the two (2) disciplinary reports in October 17, 2005 Criteria Record sheet
because SID Agent R. 'Dolce is not a man or agent of integrity.
Anything else.
Also the AFSC (American Friends Service Committee) does not involve themselves in any
political reasons or activities of illegal nature.
What about the attempt to send you information and materials to reconstruct fraudulent
identifications of documents.
I was a member of AFSC since 1995 they were approved to visit me and are a support group on the
outside. Administration approved it and now (10) ten years later it a problem. I don't understand that.
Chair:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
Chair:
Inmate:
Okay, it is noted.
I have been charge free since 2000 and now I receive charges in June 2005 *803 -306. I have not had
any problems or incidents up to that date.
Yes.
Look at my disciplinary charges since MCU I do not nor had I ever threatened anybody.
Okay, on of the handouts that I received from you "Prisoners of war" what type of war are you
speaking of?
You know my political history. I had been apart of the AFSC since 1985 that's my political
history.
Most of the organizations that you participate/associate with are not friendly organizations.
These organizations do not control my behavior in prison.
Is there anything else?
There is no proof that I did anything in New Jersey State Prison.
(4)
Inmate:
I tried to transfer out of Trenton State Prison but you would not give me a chance.
Chair.
Anything else.
Inmate:
No.
Paralegal:
No.
DECISION:
Inmate Lutalo has maintained throughout his testimony that the groups to which he belongs are
not involved in any illegal activities. He claims they are support groups that provide aid to inmates
throughout the United States and Canada. He describes himself as a political prisoner having done
nothing wrong. He states his record is very good and has remained charge free since 2002. Inmate
Lutalo states that Investigator Dolce has a personal vendetta against him because of his political
history. Lutalo readily admits being associated with the Black Liberation Army, the Anarchist
Black Cross Foundation and the American Friends Service Committee. He denies ever using these
organizations for any illegal or illicit activities. He claims these organizations have chosen him to
support. During his testimony inmate Lutalo characterized himself as passive and innocent in this
scenario.
Investigator DoIce's report which is summarized in Section VII Attitude Toward Authority however describes
inmate Lutalo in great detail as an involved individual who actively participates, recruits and is engaged
in the activities of organizations whose only purpose is to overthrow legitimate governmental
agencies. These organizations espouse the use of violent methodologies to carryout the ir
goals. Inmate Lutalo throughout the years has continued to receive volumes of literature and
materials through these organizations relative to the purchase of weapons, firearm information
disruptive tactics such as strikes and guerilla warfare. Even the documents inmate Lutalo has
submitted to MCURC for review describe the organization to which inmate Lutalo belongs as
"Militaristic and radical off shoot of the Nation of Islam"(A-6, 3 of 8) Anarchistic/anti Authoritarian see A-5,
4 of 5 and A-6, 3 of 8 a photocopy of the Trenton Times article dated September 12, 1979 identifies
Lutalo as a member of a "Death Squad of the New World Generals a radical branch of the Nation of
Islam."
It is ironic to note that these organizations consider inmates that have be en lawfully convicted of
notorious crimes to be Political Prisoners. Inmate Thomas Manning, Richard William, Clark
Squire (Sundiata Acoli) and Joanne Chesimard have all been convicted in the deaths of State
Troopers. These inmates are considered to be political prisoners and receive financial support from the
Anarchist Black Cross Federation.
Although inmate Lutalo has maintained a good disciplinary history it is clear from Investigator
DoIce's report that inmate Lutalo maintained his association with these disruptive organizations.
He has been an extremely active member of these groups. He has involved himself in recruiting
and has even been involved in fund raising for these organizations. He has become even more
active while assigned to General Population at New Jersey State Prison.
Pa36
It is therefore the decision of this Committee that due to inmate Lutalo's continued association
and participation with organizations whose sole function is to disrupt le g it im a te
g o ve r nm e nt al ag e nc ie s, i n ma t e Lu t al o s ho ul d b e a ss ig ne d t o t h e Management Control Unit
at New Jersey State Prison.
(5)
Attached please fine Mr. Morton's memo dated December 23, 1996 "MCU Placement Phases"
MCURC:
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Pa39
Date Taken.
Signature
State
JON S. CORZINE
GOVERNOR
of New Jersey
NEW JERSEY STATE PAROLE
BOARD
P.O. BOX 862
TRENTON, NEW JERSEY 08625
TELEPHONE NUMBER: (609) 292-4257
May 25, 2006
Ojore Lutalo
PN59860
/5 NEW
JERSEY
STATER SON
PO BOX 861
S
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70
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JOHN D'AMICO, JR.
CHAIRMAN
PAUL J. CONTILLO
VICE-CHAIRMAN
Zip Co
to
n,
N
J
08
62
5
RE:
Appeal of Parole Denial
Dear Mr. Lutalo:
This is in response to your administrative appeal of the Adult Panel's
March 24, 2006 determination to deny parole and refer your case to a
three member Panel to establish a parole eligibility term, which may be in
excess of established guidelines.
You contend that it was inappropriate for the Panel to make reference to a
"political formation known as the Black Liberation Army BLA)." You
specifically indicate you believe the Panel's questions about the B.L.A.
were inappropriate, as the convictions for which you are incarcerated
are not related to the politics of the B.L.A. You believe this is evidence of
bias on behalf of the Panel members. You state that when you were paroled
in 1980 there was no mention of the B.L.A. or a newspaper article, which
identified you as a member of a "formation called the New World Generals
(N.W.G.) and it's Third World Death Squad."
You indicate that the Panel cited an institutional charge, which was
based upon evidence, which you contend was also cited in a charge
for which you were found not guilty. You specifically refer to a charge
dated June 10, 2005, "Attempt at Conduct Which Disrupts." You indicate
that you were making a good adjustment to incarceration and were
receiving positive institutional reports until a specific member of the
Department of Corrections S.I.D. Unit began to unfairly target you by
identifying you as a member of the Black Liberation Army and by writing
institutional charges against you.
You indicate that during your March 24, 2006 parole hearing the Panel
members exhibited unprofessional conduct by telling jokes and laughing.
You indicate that the Panel failed to consider you for release to a halfway
house program and made a pre-determined decision to deny you parole for
political reasons. You indicate that your parole plans include a place to
reside as well as a financial base of support but that the Panel did not
seriously consider this information.
Ojore
Lutalo
PN5986
0 Page
2
In regard to the Panel's notation on its Notice of Decision concerning its
determination that you have not sufficiently addressed your substance abuse
problem, you state that you once had a drug problem but have not used drugs
since 1969. You further state you have never been arrested for possession
or distribution of drugs and have never received an institutional infraction
for drugs. You also state that you have no need to participate in Anger
Management as recommended by the Panel as you do not act out of anger,
are an emotionally stable person as well as patient and dignified.
In regard to your conviction for Armed Robbery, you contend that you did
not commit an Armed Robbery. You state that your co-defendant testified that
you did not commit an Armed Robbery. You state you defended yourself against
an accuser who engaged you in a gunfight in which he sustained wounds. You
state, contrary to the conclusion reached by the Panel, you are not in denialand
admit to all things which you have actually done.
The issues you submitted were presented to the full Board at its meeting,
conducted on May 24, 2006. During the consideration of your claims, the full
Board determined that the Panel appropriately considered the aggregate of all
relevant material facts pursuant to N.J.A.C. 10A: 71-3.11 and fully documented
and supported their reasons for denying parole pursuant to N.J.A.C. 10A:
71-3.18(f). Upon review of the tape recording of your hearing, the Board found
that the Panel asked appropriate questions in a professional manner with
the intention to render a decision concerning your ability to be released to
the community and to make a successful adjustment on parole. There is no
evidence of joking, laughing or bias. Pursuant to N.J.A.C. 10A: 71-3.11 the Board
may consider any information deemed relevant. The Board found that it was
highly appropriate of the Panel to question you about your association with
any political group, which advocates violence. The record shows that the
Panel asked you about your affiliation with the Black Liberation Army, you
indicated that you knew some of the members but that you were not a member.
In regard to the institutional infraction you received on June 10, 2005 for "Attempt
at Conduct Which Disrupts," cited by the Panel in it Notice of Decision, the Board
notes that you contend that the evidence upon which you were found guilty of
this charge is information which was also cited in a charge of which you were
found not guilty. The Board found that it considers the adjudication of charges
by the Department of Corrections to be a matter of res judicata. Therefore
the Board will not consider your guilt or innocence of said charge but will
only consider documentation of mitigation. Upon review of the information you
have submitted, the Board concluded that you have failed to document your
contention that the Department of Corrections adjudication of the charge you
received on June 10, 2005 is based upon faulty evidence. The Board also
noted that your allegations of misconduct by a member of the Department of
Corrections S.I.D. Unit should be directed to that department.
In regard to your contention that the Panel should not have denied parole due
to your prior abuse of drugs, the Board noted that you have a documented
history of heroin use between the ages of 19 and 24. The case summary
prepared by the Board's staff dated, May 23, 2005 indicates in addition, that you
also abused cocaine, pills and cough medicine from 1959 until the time of
your arrest. The Board found that you have received no treatment for
your substance abuse therefore, the Panel appropriately cited that this problem,
which was at least part of the cause of your criminal behavior has not been
sufficiently addressed. The Board noted that the Panel made a suggestion that
you participate in Anger Management to help you prepare for future parole
consideration. The Panel did not cite this as a reason for denial nor should it be
misconstrued as a pre-release condition.
Ojore Lutalo PN59860
Page 3
regard your contention that you are not guilty of Armed Robbery therefore the
Panel should not have concluded that you deny your guilt, the Board noted that
you certainly have a right to maintain your innocence in total or in part,
however, the Board must consider that the crimes for which you are
incarcerated resulted following a jury trial at which time a finding of guilt was
made. The Board is charged with the responsibility to determine your fitness to
be released on parole. Parole does not provide for a forum upon which you may
argue your innocence.
In
Upon review of the record, the Board found that the Panel cited as
mitigation, your participation in institutional programs specific to behavior as
well as your attempt to participate in programs in which you have yet to be
accepted. However, the Panel also considered your extensive and repetitive
criminal record which has increased in seriousness, you are
incarcerated on a multi-crime conviction, you violated parole by committing new
offense
s, you .
.
have violated probation an
past, prior community p
incarceration have failed to deter your criminal behavior, you have
received numerous institutional charges which have resulted in confinement in
administrative segregation as well as the loss of commutation credits and based
on your interview with the Panel, as well as documentation in your file, the
Panel concluded that you lack insight into your criminal behavior, deny
your crimes and minimize your conduct. The Board noted that the Panel's
decision is supported by a confidential professional report, which is not
prior
supportive of your release on parole at this time. The Board concluded that the
factual evidence supporting the Panel 's decision is overwhelming.
Based on a consideration of the facts cited above, the full Board has
determined that the Adult Panel has documented, by a preponderance of
evidence, that there is a substantial likelihood that you would commit a crime if
released on parole at this time. Accordingly, the full Board has elected to affirm
the Adult Panel's March 24, 2006 decision to deny parole and refer your case to
a three member Panel to establish a parole eligibility term, which may be in
excess of established guidelines.
Please note a final agency decision has now been rendered in this matter,
Edwa
rd
Oska
y
Chief
,
Appe
als
Unit
EO
c Parole Counselor
SPB
File
Pa42
New Jersey Is An Equal Opportunity Employer
Merid o the People ItS''eives,
N.J. political prisoners
do hard time in solitary
By Bill Sanderson
Record Staff Writer
TREN TO N — Since 1986, Ojore N. Lu t a l o h a s b e e n i n s o l i t a r y c o n fi n e m e n t a t New Jersey
State Prison, locked alone his c e l l 2 2 t o 2 4 h ou r s a da y. H e i s n 't b e i n g treated this wa y becaus e
he broke prison rules — if he had, he would have been ret u r n e d t o t h e g e n e r a l p r i s o n
p o p u l a t i o n years ago.
Instead, in a nation that venerates fre e dom of thought, Lutalo is a political prison e r 7 o n e o f 7 7
i n m a t e s s e g r e g a t e d f r o m other convicted criminals because prison officials fear their political and
religious ideas could foment trouble.
Because Lutalo broke no rules, prison of ficials say his placement 'e management
control unit, or MCU, isn't ptinishment. But inmates say life is hard enough in New Jersey State, the
state's most dangerous and most secure prison, without enduring the MCU's enforced isolation and
idleness.
"A lot of the prisoners can't cope with the constant' lockdown," said Lutalo, who is
serving a 20- to 44-year sentence for a 1975 armed robbery. "The y det eriorate mental ly."
Inmates also complain that being in the MCU adds years to their sentences, since they can't hold
prison jobs or accumulate
education credits they need to win early re lease. Ask anyone in the prison what MCU inmates do to pass
the time, and the answer
See SOLITARY Page A-10
CARMINE GALASSO/THE RECORD
Inmates In solitary confinement refuse to use the "canes" for recreation or meals.
THE CONTROL UNIT TREATMENT PROGRAM IS LONG—TERM PUNISHMET
UNDER
THE GUISE OF W HA TI S, I N FACT, PSEUDO-SCIENTIFIC
EXPERI MENT ATI O N
GE ONE
THURS
DAY, JUNE
11, 1992
for fear of radical ideologies
ii A lot of the
prisoners can't cope with the
constant Iockdown. They
deteriorate
mentally.
Fp
— Ojore N. Lutalo,
who has been in
solitary since 1986
classes and group activities among prisoners remained curtailed.
Upset about the change in conditions, about 200 inmates met in an exercise yard to consider a
protest. Though the inmates said they
no c•onsensns. the meeting
led prison administrators to counter the chance of further trouble by segregating their leaders.
Alan R. Hoffman, then the superintendent of the Trenton prison, said the unit was established to
thwart a "minority of people who are going to stir the pot all the time." In October 1976, the inmates lost a lawsuit challenging the fairness of the establishment of the unit when a federal judge
said the MCU was a legal way to keep order in the prison.
MCUs have existed at other prisons. During the 1980s, Cubans who came to the United States in
the Martel boat lift and were later convicted of crimes were placed in MCUs in Trenton, at Bayside
State State Prison in Leesburg, and at East Jersey State Prison in Woodbridge because officials
feared they planned violent demonstrations.
Other states -have similar units, said Robert B. Levinson, special projects manager for the American
Correctional Association. "This type of management of disruptive inmates is not unusual," Levinson
said.
But human rights groups are worried about the spread of "prisons within prisons" such as the
MCU. Human Rights Watch, a group that monitors prison conditions around the world, calls the
trend "Marionization," after a federal prison in Illinois where more than 300 inmates live in solitary
confinement.
Today, New Jersey's only MCU is at New Jersey State, a prison that houses 2,200 of the state's
most troublesome inmates —those with severe mental • problems, the severely ill, those considered escape risks, and those startin g lo ng p r is o n te rm s . Th e emphasis is on security and order.
After the 1990 assaults, Beyer ordered all guards to wear riot gear when they deal with groups of inmates.
The MCU's four cellblocks are of standard prison design: each has two levels of 12 cells, arranged
in an L shape. The cells face a large open area with tables.
One noticeable feature is that the table area is enclosed by chain-link fencing. Beyer calls these
"multipurpose activity modules." The inmates call them cages, and they have refused to use them for
group meals or recreation, which they would be allowed one or two evenings a week.
" I t ' s d e g r a d in g , " s a i d L u mumba. "It's something for dogs." So the inmates eat in their cells,
and forgo the chance to leave the cells -for socializing or playing cards or chess.
MCU inmates are allowed five hours of outdoor recreation and two visits each week. Like other
inmates, they are allowed to have radios and TV sets in their cells; some have typewriters or
personal computers, which they use to write political pamphlets or to prepare appeals of their
convictions.
Inmates say the MCU is much
quieter than other prison housing. Reading is a popular pastime. Roberts said he's had time to read
books he wouldn't have gotten to outside of prison, including political tracts by Thomas Hobbes and
Adam Smith, as well as Sidney Sheldon novels. "Generally, the men they commit to this unit have
pretty good minds," he said.
The inmates' mail, magazines, and books are censored for ideas prison officials deem dangerous.
Lutalo, who does not belong to the ANU, has had copies of Soldier of Fortune magazine and books on
firearms and paramilitary training confiscated. Other censored materials seem more innocuous — such
as an ANU pamphlet en African history, and newsletters of radical political groups.
What's wrong with segregating violent criminals on the basis of their political and religious beliefs?
"I think it is a central threat to human rights," said Bonnie Kerness, who works in the New Jersey
office of the American Friends Service Committee, the social action arm of the Quaker church.
"It's arbitrary state power, and there is nothing anybody can do about it. There is something fundamentally wrong with that."
"A good number of these guys are going to be let out, and we are going to have to deal with them,"
said Bomse. "If you treat somebody like an animal, does it surprise you that he doesn't treat people
like humans when, he gets out of prison?"
Beyer said that since the MCU curbs violence, he is not worried about the complaints of inmate
advocates. "We will keep it open and filled as long as the need is there and continues to exist," he
said. "Just like out on the street, there are a few bad apples that have to be dealt with."
' To preserve text, the page number has not been stamped on certain Appendix items. All
Appendix items are sequential.
Table of Appendix Contents'
Notice of Appeal
Pal
Ojore Lutalo, Inmate Detail
Pa3
MCU Review, 5/29/08
Pa4
NJSP Memorandum to Ojore Lutalo, Date 10/18/08
Pa5
Ojore Lutalo, Progress Report Notes, '12/27/2007
Pa6
Criteria Record Sheet
Pal
Decision, Lutalo v. Department of Corrections,
Appellate Division, A-3294-05, August 24,2007
Pal 1
MCU Review, 2/28/08
Pa22
MCU Review, December 5 , 2 0 0 7
Pa23
MCU Review, 11/29/2007
Pa24
MCU Review, 8/30/2007
Pa25
MCU Review, 5/31/2007
Pa26
MCU Review, 2/27/2007
Pa27
Memorandum, Ojore Lutalo to NJSP, November 6 , 2 0 0 7
Pa28
Memorandum, NJSP to Ojore Lutalo, January 9 , 2 0 0 6
Pa 29
Memorandum, Ojore Lutalo to NJSP, November 29,2005
Pa30
Initial Management Control Unit Placement, November 9,2005
Pa33
Disciplinary Report, 10/19/05
Pa38
Parole Plan Interview
Pa39
Letter, May 25,2006 to Ojore Lutalo
Pa40
The Record, June 11, 1992
pa43
NOTICE OF APPEAL
PLEASE
PRINT
OR
TYPE
SUPERIOR COURT OF NFW JERSEY - APPELLATE DIVISION
TITLE IN FULL (AS CAPTIONED BELOW):
ATTORNEY OR PRO SE
LITIGANT NAME BRUCE
I.
AFRAN
OJORE LUTALO,
ADDRESS 10
Braeburn Drive,
Princeton, NJ 08540
TELEPHONE NO. 609-924-2075
ATTORNEY FOR Appellant
V.
FROM:
ON APPEAL
Department of
Corrections
DEPART
M
TRIAL
E
C
O
N
U
T
R
CIVIL [
CRIMINAL [ ]
JUVENILE I
T
O
NOTICE IS HEREBY
GIVEN THAT
OJORE
O LUTALO
APPEALS TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION, FROM
F
RTHE JUDGMENT [ ] ORDER[]STATEAGENCYDECISION[x]
ENTEREDINTHISACTIONON
JUN
S
E 3 , 2 0 0 8 DATE
c
T
IF NOT APPEALING THE ENTIRE JUDGMENT, ORDER OR AGENCY DECISION, SPECIFY
o OR PARAGRAPHS ARE BEINGA APPEALED.
WHAT PARTS
T
R
E
w
m
A DISPOSED OF IN THIS ACTION IN THE TRIAL
HAVE ALL ISSUES AS TO ALL PARTIES BEEN
COURT ORv
AGENCY? (IN CONSOLIDATED G
ACTIONS, ALL ISSUES AS TO ALL PARTIES IN ALL
ACTIONS MUST HAVE BEEN DISPOSED OF.) YES [X] NO [ 1
E
E
IF NOT, HAS THE ORDER BEEN CERTIFIEDNAS FINAL PURSUANT TO R. 4:42-2? YES [ ] NO [ ]
D
C
IN CRIMINAL, QUASI-CRIMINAL AND JUVENILE
ACTIONS:
Y
A
GIVE A CONCISE STATEMENT OF THE OFFENSE AND OF THE JUDGMENT,
N
DATE ENTERED
AND ANY SENTENCE OR DISPOSITION IMPOSED.
p
O
p
e
N
IS DEFENDANT INCARCERATED? YES [E
NO [ I
l
WAS BAIL
GRANTED
ORCOURT
THE SENTENCE
OR DISPOSITION
TRIAL
OR
AGENCY NUMBER
STAYED?
l YES [ ] NO [ IF IN CUSTODY, GIVE THE PLACE OF
CONFINEMENT.
TRIAL COURT
e
JUDGE
e
A
P
P
E
P
a
l
Revised: 06/2005, CN: 10837-English (Pro Se Kit)
(Page 1 of 2)
Click Here to go to Page 2
ATTACH ADDITIONAL SHEETS IF NECESSARY
NOTICE OF APPEAL AND ANNEXED CASE INFORMATION STATEMENT HAVE BEEN SERVED
ON.
D
SERVICE
ATE OF NAME
TRIAL COURT JUDGE
DEPARTMENT OF CORRECTIONS
7/18/0
8
TRIAL COURT CLERK OR STATE AGENCY
ATTORNEY GENERAL OR ATTORNEY FOR
OTHER GOVERNMENTAL BODY PURSUANT
TO R. 2:5-1(a), (e) or (h)
OTHER PARTIES:
ATE OF NAME AND DESIGNATION
ATTORNEY GENERAL
7/18/08
ATTORNEY NAME, ADDRESS AND TELEPHONE NO.
RECEIVED
qpPF 1
,
,
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rr
D
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V
I
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I
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8
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SERVICE
2
0
0
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StYettilU
JERSEY
ANNEXED TRANSCRIPT REQUEST FORM HAS BEEN SERVED
6
NEW JERSEY
DATE
OF AMOUNT OF NAME
COURT REPORTER'S SUPERVISOR,
CLERK OF COURT OR AGENCY
R
E
S
IC
V
O
P
D
T
EXEMPT - NO VERBATIM RECORD
COURT REPORTER
EXEMPT FROM ANNEXING THE TRANSCRIPT REQUEST FORM DUE TO THE FOLLOWING:
[X] NO VERBATIM RECORD.
[ ] TRANSCRIPT IN POSSESSION OF ATTORNEY OR PRO SE LITIGANT. (FOUR
COPIES, ALONG WITH THE COMPUTER DISKETTE FROM THE TRANSCRIPT
PREPARER, MUST BE SUBMITTED.) LIST THE DATE(S) OF THE TRIAL OR
HEARING.
[ ] MOTION FOR ABBREVIATION OF TRANSCRIPT FILED WITH THE COURT
OR AGENCY BELOW. [ ] MOTION FOR FREE TRANSCRIPT FILED WITH THE
COURT BELOW.
DATE
SIGNATURE OF ATTORNEY PRO SE
PitalT
I CERTIFY THAT THE FOREGOING STATEMENTS ARE TRUE TO THE BEST OF MY
KNOWLEDGE, INFORMATION AND BELIEF. I ALSO CERTIFY THAT, UNLESS EXEMPT, THE
FILING FEE REQUIRED BY N.J.S.A. 22A:2 HAS BEEN PAID.
AD-9(Elec)
Revised:
10637-English (Pro
Se Kit)06/2005,
4/01 CN:
(Page 2 of 2)
Uttender Details
r a ge 1 w
https://www6.state.nj.us/DOC_Inmate/details?x=10493808m=0
6/4/2008
EIZMICAV
Text only
Search Form >> List >> Details
Offender Details
SBI Number:
Sentenced as:
Race:
Ethnicity:
Sex:

Hair Color:
Eye Color:
Height:
Weight:
Birth Date:
Admission Date:
Current Facility:
Projected Max Release Date:
Projected Parole Eligibility Date:
Offense
Lutalo, Ojore
Black
N/A
Male Black
Brown 5'11"
182 lbs. August
6, 1945
November 19, 1982
NJSP
February 10, 2009
N/A
Current Prison Sentence
Sentence Date
Mandatory
.
'Commitment
County
Miniln um Maximum
- of
Order
Term
Term
Commitment.
Offense Date
2 count/merged count of :
2C:12-1
Assault/Aggravated /3
1 count/merged
:-. count of :
2C:15-1 Robbery /2
1 count/merged count of :
2C:39-4
Weapons/Possession for
Unlawful Purposes
1 count/merged count of :
2C:39-5 Weapons/Unlawful
Possession of Weapon /3
1 count/merged count of :
2C:PV Parole Violator
0000901548
November 19, 1982 November 19, 1982
Monmouth
1-204-81
None
4 Years
November 19. 1982 November 19. 1982
Monmouth
1-204-81
20 Years
40 Years
November 19, 1982 November 19, 1982
Monmouth
1-204-81
None
7 Years
November 19, 1982 November 19, 1982
Monmouth
1-204-81
None
4 Years
PV-488-75
None
4 Years
7 Months
13 Days
July 29, 1977
July 29, 1977
Mercer
Aliases Bunting, Leroy
Inearcei ation History
Date In Custody
Date Out of Custody
November 19, 1982
Currently In Custody
plueyiOgs.1
to.o.cxto.041 t
0.00d1k-SgaT.4.1
t f::fleNtiAeeth I
Criteria Chosen:
•
Sex = M: Last Name = LUTALO; Current Facility = New Jersey State Prison:
Disclaimer:
Pa3
The purpose of the Offender Search Web Page is to promote public safety and welfare while providing
community access to selected offender information, consistent with the spirit and intent of the New Jersey Open
Public Records Act (OPRA).
-L
:4 12/02
Custody Supervisor Lt. Sande
Departm ent of Corrections
NEW JERSEY STATE PRISON
N O T IC E O F C LA S S I F IC A T IO N D E C I S IO N
ROUTINE REVIEW
NAME: Lutalo, Ojore
"NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the
testimony relative to Inmate Lutalo his routine review, pursuant
to 10A:5-2.10. This evidence includes:
Documents supporting initial placement decision
Disciplinary Reports
Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
9.Housing Reports
x 1.
x 2.
x 3.
Inmate Statements / Comments
Inmate Ojore Lutalo refused to attend his May, 2008 Routine Review.
Based on the.above the MCURC has determined the
following, which justifies the decision of the committee:
The MCURC notes your refusal to attend your May, 2008 Routine
Review. You are encouraged to attend all Routine and Annual
Reviews as well as all available MCU. programs. The Committee
continues to show concern regarding your admitted affiliation with
the Black Liberation Army and the Anarchist Black ' Cross
Foundation. Youiradical views and ability to influence Others
poses a threat to the orderly operation of this Institution.
Furthermore, you have yet to complete any of the necessary
programs required for consideration of release from the
Management Control Unit. Your actions continue to pose a threat
to the safety and security of any correctional facility.
Inmate Lutalo is assigned to Phase I,
or Phase III (circle one)
It is the decision of MCURC that Inmate-Lutalo should remain
assigned to the Management-Control Unit at this time.
RECEIVED
DIVISION APPELLATE
; JUL 18 20
SUPERIOR COURT
OF NEW3ERSEY
Next Routine Review cheduled for
August, 2008
I Ms. Rau
true and accurate r
MCURC Chair Mr. Drut ____
Date 5/29/2008
Decision delivered to inmat by
Date of delivery
cc: MCU Folder Classification File
,„0000.—
etir-10
Name and ' tle
Pa4
certify that the above represents a ceeding.
Professional Services Represen
IRBY
________
on
ive Mr; Zell
Pas
State Prison, Trenton
New Jersey
Date 10/18/2005
TO: Ojore Lutalo
(Inmate Name)
FROM:
901548/59860
(Number)
Ronald H. Cathel
Administrator
SUBJECT: Administrative Pre-Hearing Detention – Management Control Unit
Please be advised that effective today,
October 18, 2005
you are being
administratively placed in Pre-Hearing Detention-Management Control Unit and will be
given an in-person classification hearing on/or
Tuesday, November 1, 2005 before
the Special Classification Committee-Management Control Unit.
Professional reports and information received indicate that you pose a substantial threat
to the safety of others, and a threat of interrupting the operation of the institution of you
are housed in general population of any State Correctional Institute.
Cc: MCU File
PCC File
Delivered By:
Title:
Date:
//05
I
N 44/ ZAJLp
State of New Jersey
Department of Corrections
7.0IRAUP
Inmate Management
PROGRESS NOTES REPORT
JEW JERSEY STATE PRISON
SATCH
66 OF 322
'SSW
59860
0000901548
_ _ _ _ _ _ _ _ _ _. _
_ _ _ _ _ _ ___
Date
Seq#
1NM#
Last Name
LUTALO
.. .... _
Type
09/18/2001
179
GN
09/10/2001
180
GN
09/15/2001
02/06/2002
02/20/2002
02/27/2002
181
182
183
184
GN
GN
GN
GN
02/27/2002
185
GN
02/27/2002
186
GN
02/27/2002
06/1.3/2002
187
188
GN
GN
01/06/2005
10/24/2005
01/30/2006
02/09/2008
189
191
192
GN
GN
CRTTRP
SPBPPP
03/16/2006
06/23/2006
193
194
GN
GN
06/23/2006
195
GN
06/23/2006
196
GN
1k
First Name
OJORE
- _
_
-
_ _
Note
hilt
_
_
_
_
_
Six
_
_
_
Location
NJSP-NORTH-2 B LEFT-CELL 05;
_ _ _ ___
_ _ _ _ _
_
Status Date
CLO
0
Case Action
06/27/2006
03/07/2007
197
198
GN
GN
MCU Routine Review 6/7/01
MCU Routine Review 6/7/01
MCU Routine Review 6/7/01 Orientation Completed
ORENT
MCU ROUTINE REVIEW 12/8/01
MCU ROUTINE REVIEW 12/6/01 (con't.)
MCU ROUTINE REVIEW 12/6/01 (con't)
MCU ROUTINE REVIEW 1216/01 (con't) MCU Release as of 1/16/02
PRE-PAROLE PACKAGE SPINC
PRE-PAROLE PACKAGE PRE-PAROLE PACKAGE
interstate Cbmpact Case MCU Routine Review 6.15-06
MCU RR 6.15-06 con't
.
MCU RR 6 15-06 con't
,
DE
declined
Oregon Routine
Reviewto accept 2/27/07placement of this offender MCU
Ojore Lutalo
SRI 90.1548
New Jersey State Prison 3rd and Federal Streets
Trenton, NJ 08625.
Control Unit. The MCURC has reviewed circumstances surrounding his initial placement and various--professional reports. These reports reflect lack of
program participation and inappropriate attitude, Based on the above, you are assigned
Phase II. The committee notes that to date you have not participated In Phase II as outlined in the revised MCU Phases memorandum dated November 6,
1998. It is also noted that you refused to attend your September 1, 2001 MCU Routine Review
Your case will be reviewed In ninety (90) days. R.R. 12/01 Shirley Tyler, Chairwoman. /tf
On 1/17/2002 Orientation Completion. /sb.
The Management Control Unit Review Committee has reviewed evidence relative to Inmate Lutalo at his Routine Review, pursuant to 10A:5-2.10. It Is the
opinion of the committee that inmate Lutalo should remain assigned to the Management
ControlUnit. The MCURC has reviewed circumstances surrounding his Initial placement and variousprofessional reports..These reports reflect lack of
program participation and inappropriate attitude, Based on the above; you are assigned to
Phase II. The.committee noted that you have not participated In Phase II as outlined in the revised MCU Phases memorandum dated November 6, 1998. It
also noted that you refused to attend your December 2001 MCU Routine Review.
Your case will be reviewed In ninety (90) days. R.R. 03/02 Steven Sootkoos, Chairman
It Is the decision of the Committee to Administratively re-assign you from the Management Control Unit and assign you to General Population at New
Jersey State Prison,
PRE-PAROLE PACKAGE TO PAROLE. /sb.
•
Management Control Unit Placement as of 10/18/2005, per approval from Administrator; Cathel.. PRE-PAROLE.PKG. TO PAROLE. /sb.
PRE-PAROLE PKG. TO PAROLE (PER PAROLE REQUESTED ON 2/7/06 TO BE UPDATE PKG.). /sb.
Interstate package forwarded to OSI on 3-16-06
The MCURC had reviewed evidence and considered the testimony relative to l/m Lutalo at his Routine Review, pursuant to 10A: 5-2.10. Based on the
above the MCURC has determined the following,'which justifies the decision of the committee:
The Committee notes your request for congregate status as well as your lack of program participation. Mr. Lutalo before you can request for congregate
status, you need to complete your Administrative Segregation time for the chrg 4.803/.306
which was effective on 7-11-05 for 365 days. 1/m Lutalo Is assigned to Phase I. It is the decison of MCURC that Wm Lutalo should remain assigned to MCU
at this time. Next Rbutine Review Is scheduled for 9/06. MCURC Chair: Mr. Kandell
The MCURC has reviewed evidence and considered the testimony relative to 1/m .Lutalo at his routine• review, pursuant to 10A:5-2.10. Based on the
above the MCURC has determined the following, which justifies the decision of the•commIttee: The
M.C.U.
NEW JERSEY STATE PRISON
T R E N T O N , N E W J E R S E Y
CLASSIFICATION DEPARTMENT
CRITERIA RECORD SHEET
I.
NO: SBI #
Name: Lutalo, Ojore
Date: October 17,
901548/59860
2005
PAST CRIMINAL RECORD INCLUDING OFFENSE(S) FOR WHICH COMMITTED:
Inmate Lutalo is currently serving twenty (20) years minimum with a Forty Eight (48) year seven
months and thirteen days (13) maximum for several crimes. He has also served time for the
following sentences:
Prison Parole Violation CT# 1 Max 4y 7m 13d
DOS 07/29/1977- active CS
Robbery
CT #1 Max 40y Orn.Od – Min 20y Um Od DOS 11/19/1992 active – CC
Assault
CT#3 Max 4y Om Od
DOS 11/19/1982 active – CC
Weapons/Possession for Unlawful Purposes CT # 5 Max 7y Om Od DOS 11/19/ 1982 active – CC
Weapons/Unlawful Possession of Weapon CT # 6 Max 4y Om Od DOS 11/19/1982 active –CC
Assault/Aggravated
II.
CT #2 Max 4y Om Od Max 4 Om Od DOS 11/19/1982 active -CS
RECORDS OF PAST INSTITUTIONALIZATION'S:
Inmate Lutalo has been incarcerated in the State of New Jersey for majority of his adult and
adolescent life. According to his criminal history he entered the prison system in 1966 due to drug
addiction. He is serving his fourth (46) State Prison sentence and a one adolescent incarceration at
Bordentown. His criminal history also indicates that has served time for the following:
Date of Offense
1982 – present
1975- 1981
Offense
Disposition
Robbery
Max 40y – Min 20y Current Sentence
Assault
Max 4y
CC
Weapons/Possession for Unlawful Purposes Max 7y
CC
Weapons/Unlawful Possession of Weapon Max 4y
CC
Assault/Aggravated
Max 4y
CS
Receiving Stolen Property
Possession of a dangerous Weapon
Eluding Police
Paroled 1981
1970-1975
Robbery
Armed Robbery
Max Out 1975
1967-1969
Carrying a Concealed Weapon
Max out 1969
1966 –1967
Shoplifting
Carrying Concealed Weapon
Robbery
Robbery with a Weapon
M.C.U.
Sentenced to Bordentown orpte
NEW JERSEY STATE PRISON
TRENTON, NEW. JERSEY
CLASSIFICATION DEPARTMENT
M. D I S CI P L I N A R Y R E CO R D
During his present incarceration at New Jersey State Prison, inmate Lutalo has received fifteen
charges, four of which are of asterisk severity and eleven non-asterisk charges.
5/03/1990
210 Poss. Not Authorized
Contraband Confiscated
8/15/ 1991
210 Poss. Not Authorized Contraband Confiscated & Verbal Reprimand
8/15/1991
210 Poss. Not Authorized
9/10/1991
210 Poss. Not Authorized
Contraband Confiscated & 30 days LORP
10/17/1991
202 *Poss/Intro. Weapon
15 DTN, 180 LCT, and 180 Adseg
11/03/1991
210 Poss. Not Authorized
11/04/1993
002 * Assault Any Person
11/27/1995
256 Refusing to Obey
5DTN
01/31/1999
803 *Attempt To Commit * Infraction
15 DTN, 180 LCT, and 180 Adseg
04/29/1999
210 Poss. Not Authorized
11/05/2000
210 Poss. Not Authorized
Contraband Confiscated
11/05/2000
210 Poss. Not Authorized
Contraband Confiscated
06/10/2005
803-306 * Attempt at Conduct w/Disrupts 15 DTN, 365 LCT, and 365 Adseg
8/01/2005
704 * Perp. Frauds/Esc Plots Contraband return to Sender & Currency
Verbal Reprimand
Contraband Confiscated
15 DTN, 180 LCT, and 180 Adseg
15 DTN, 90 ADSeg and 60 LCT
Confiscated
08/01/2005
705 Oper. Bus./Group w/o Approval Contraband return to Sender & Currency
Confiscated
08/01/2005
706 Solicit Funds/Contribution Contraband return to Sender & Currency
Confiscated
IV.
INSTITUTIONAL RECORD ON WORK ASSIGNMENTS
A review of the inmate's work history indicates that he has worked during his incarceration at
NJSP as cell san, MCU Runner and Laundry Worker. No other work history available.
V.
ADJUSTMENT TO INSTITUTIONAL PROGRAMS: A review of this inmate's file
VI.
RECORDS ON PAST HOUSING ASSIGNMENT
indicates that he did not participate in any institutional programs.
Since his initial incarceration at New Jersey State Prison, inmate Lutalo has been assigned to the
following housing units:
11/28/1999 – 01/16/2002
North 4B Left 08/30/2005- 10/13/2005 West – 7 Right
01/16/2002 – 01/29/2002
South 3 DD
10/13/2005-10/13/2005 North Observ. Cell
01/29/2002 – 09/19/2002
South 2 FF
10/13/2005-10/15/2005 North Observ. Cell
09/19/2002 – 06/10/2005
South 3 FF
10/15/2005 – North MD. OvFLO – Cell 01
06/10/2005 – 07/11/2005
West 1 Left
07/11/2005 – 08/01/2005
08/01/2005 – 08/05/2005
08/05/2005- 08/30/2005
West 7 Right
West 1 Left
West 1 left
Pa8
M.C.U.
NEW JERSEY STATE PRISON
T R E N T O N , N E W J E R S E Y
CLASS1_HCATION DEPARTMENT
VI I . A T TI T UD E T O W A R D S A U TH O R I T Y
Inmate Lutalo defiance and no regards for authority is quite evident in his disciplinary record.
During his incarceration at this facility, he has received a several non -asterisk sanctions from
possession not authorized to more serious asterisk charges such as perpetrating frauds, deceptions,
confidence game, riots or escape plots etc.
In May of 2005 inmate Lutalo was found to be in possession of hand made "flyers/poster's" from
news clippings, firearms catalogue, books dealing with the Black Panthers, Crips and Bloods, 17
pictures of sniper and assault rifles.
Lutalo has created recruiting posters for the "Black Liberation Ann" B.L.A. The B.L.A. is a
Black Supremacist Organization closely tied to the Black Panther Party. The B.L.A. aided in the
escape of New Jersey State Prison inmate Jann Chesimard a.k.a. Assata Shakur. The organization
espouses violence and the murder of police.
Inmate Lutalo has been associated with the Black Liberation Arm (B.L.A.) and throughout his
incarceration. He has obtained unauthorized publications and pictures dealing with weapons,
bombs and law enforcement equipment.
Inmate Lutalo has, throughout his incarceration, been actively. involved with any anarchist, radical,
left wing anti-government group particularly the Anarchist Black Cross Federation (A.B.C.F.) The
Anarchist Black Cross Federation (A.B.C.F.) espouses the overthrow of government through
violence.
Records indicated that the leader of a chapter of the A.B.C.F. has visited inmate Lutalo while
incarcerated.
This report also indicates that inmate Lutalo has actively recruited other inmates throughout the
Unites States. He has also solicited monetary donations to support these activities.
As a result of the seizure in May of 2005 inmate Lutalo was issued a disciplinary charge
*803/*306 attempting to engage a conduct which disrupts because the confiscated items supported
violence toward police and authority.
Over the past few years, the following represents the approximate number of literature material
and catalogs have been seized from inmate Lutalo:
Explosives, Ammunition Weapons: 13
Survival Tactics, Strikes Information on Armored Vehicles: 6
Information on Disruptive Activities such as civil disobedience, riots and
strikes: 18
On two occasions the American Friends Service Committee (AFSC) has attempted to send him
information and material with which to manufacture fraudulent identification doc uments.
Between February 2002 to February 2005 there have been thirty-four (34) mailroom seizures for
contraband/prohibited material.
It has been determined that inmate Lutalo has received approximately $2.099.15 between the years
of 2000 and 2005 from the Anarchist Black Cross Federation (A.B.C.F.) Inmate Lutalo d ribR
himself as a Political/Prisoner of War (P.O.W) and actively solicits monetary and non -m
eaY funding for these subversive groups.
M.C.U.
NEW JERSEY STATE PRISON
T R E N T O N , N E W J E R S E Y
CLASSIFICATION DEPARTMENT
Searches have resulted in the discovery of a videotape espousing Lutalo's political views. The
investigator's report concludes that this videotape was fraudulently made while inmate Lutalo was
incarcerated at New Jersey State P ris on. This tape also solicits money from the viewer. It
instructs the viewer to send money to Bonnie Kerness, care of the American Friends Service
Committee (AFSC). Searches reflect that inmate Lutalo is a direct recipient of the proceeds from
the sale of this tape as well as from other sources.
In ma t e Lut a lo and Ms . K ern es s h a ve and e xt en si ve his to r y du rin g hi s in c a rc e ra tion . The
American Friends Service Committee is an organization based in the Quaker faith. Ms. Kerness is
described as an agent of this organization.
Ms. Kerness has during her relationship with inmate Lutalo, used her position in this organization
to send inmate Lutalo materials that espouse violence, certain information on weapons, and
military tactics and other information that could be used during an escape.
The AFSC has also sent to inmate Lutalo packages that have been intercepted that pertain to
Urban Guerilla Warfare, materials related to weapons, strikes, revolts and even materials to make
false identification documents.
Ms. Kerness has also visited inmate Lutalo. She has engaged in inappropriate conduct during - a
window visit and has appeared naked during a visit session in September of 1993.
I t i s c l e a r fr o m i n ve s t i ga t o r D o l c e s r e p o rt t h a t i n ma t e Lu t a l o h a s t h r ou gho ut hi s e n t i r e
incarceration continued to actively involve himself in subversive groups and organizations whose
purpose is to disrupt, overthrow and challenge by extremely violent means legitimate lawful
government agencies and organizations.
Inmate Lutalo almost routinely receives materials, writings and information catalogs that espouse
violence, civil disobedience. He repeatedly emerses himself in this violent disruptive ideology
with a sense of impunity.
It is based on his active involvement in organizations and with individuals whose entire existence
is based on the disruptive violence and chaos, that inmate Lutalo should be assigned to the
Management Control Unit.
PSYCHOLOGICAL MAKEUP
To be provided by the Psychological Department
VIII. INVOLVEMENT IN CRIMINAL ACTIVITIES WITHIN THE PRISON:
None Available
NOTICE DELIVERED BY:
TITLE:
DATE:
lob-/lor
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2007
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p.2
AFSC Newark NJ
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
NEW
JERSEY APP LLATE DIVISION
DOC ET NO. A-3294-05T2
SUP RIOR COURT OF
OJORE LUTALO,
Appellant,
v.
DEPARTMENT OF
CORRECTIONS,
Respondent.
Submitted July 17, 2007 - De ided August 24,
2007 Before Judges C.S. Fisher an Grail.
On appeal from the Department
of Corrections.
William H. Buckman, attorney for appellant.
Anne Milgram, Attorney General, attorney
for respondent (Patrick DeAlmeida,
Assistant Attorney General, of counsel;
Susan M. Scott, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Ojore Lutalo is an inmate incarcerated at New
Jersey State Prison in Trenton. He is serving a forty-year
sentence, twenty years of which he was required to serve
without possibility of parole. He appeals from, final
decisions of the Department of Corrections (Department)
finding him
gupgtf
2
A-3294-05T2
S ep 1 3
C.I L /
8: 1 8A M
9736431924
AF S C Ne wa rk NJ
disciplinary infractions, N.J.A.C. 101:4-4.1(a). We
affirm in part and reverse in part.
On May 19, 2005, Lutalo was char ed with possession
of flyers, a card, a catalog, a magazine, paperback
books and photos of machine guns and rifles that the
Department alleged were related to a security threat
group (STG). The materials were forwarded to the
Department's Special Investigation Department (SID),
but its officers determined that the materials did not
qualify as STG materials. Lut lo was found not guilty.
Lutalo's cell was searched again n June 1, 2005 and
additional written materials, includin handmade posters
in various stages of completion and a bag containing
newspaper clippings used to produce the posters, were
seized. Based on possession of the materials seized in gay
and June, on June 10, 2005, Lutalo was charged with
discipli ary infraction *.803/.206, attempting, aiding
or plan ing conduct that disrupts or interferes with the
security or ord rly operations of the correctional
facility. On July 11, 2015, he was found guilty and
received a sanction of 15 days' e ention, 365 days'
administrative segregation and 365 days' loss of
commutation credit. On July 14, 2005, his administrative
appeal from that determination was denied and the
finding of guilt and sanction
were upheld.
P
all
Sep 13
2007
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p.4
AFSC Newark NJ
3
A-3294-05T2
On August 5, 2005, Lutalo was charged with the
following
additional infractions: *.704,
ating fraud,
perpetr
deceptions,
confidence games, riots or escape pio s; .705, operating
a business or non-profit enterprise wit out approval of
the Superintendent, and .706, soliciting unds or
contributions except as permitted by the Adrninistratbr.
On August 29, 2005, Lutalo was found guilty of all three
charges and received a sanction equivalent to time he
had served pending adjudication of the charge. In
addition, he was required to forfeit funds deposited in
his account and his typewriter and its ribbons. On
September 1, 2005, his administrative ppeal was denied
and the finding of guilt and sanction were uph ld.
Lutalo filed a notice of appeal f om the July 14 and
September 1, 2005 final decisions on M rch 2, 2006. On
March 20, 2006, this court granted Lutalo le ve to file
the appeal as within time. After he filed his brief on
the merits, the Department moved for a remand to permit
further review of the *.803/.206 charge. That motion was
initially denied but s u b s e q u e n t l y g r a n t e d o n t h e
D e p a r t m e n t s m o t i o n f o r reconsideration. On
remand, a hearing officer reviewed the evidence and
concluded that the chargeishould be downgraded from
*.803/.206, attempting, aiding or planning conduct that
disrupts or interferes with the security or orderly
operations of the
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AFSC Newark NJ
9736431924
p.5
4
A-3294-05T2
correctional facility, to ,210, possession of materials
not authorized for retention. The officer went to
Lutalo's cell in a "close custody housing unit," spoke
to him at his cell door and "advised him that the
charge had been downgraded to OTSC [an
on-the-spot
sanctio
correction]
Subsequently,
with
this
a of confiscation."
court partment's motion
granted the D supplement the record to officer's report
reserved
with the decision
hearing on the Department's motion
and
to dismiss
Lutalo's appeal from the *.803/.206 charge as mTot.
Lutalo, who is represented on thil appeal,
raises the following arguments:
I.
THE JUNE [20051 AND AUGUST 2005
D I S C I P LI N AR Y S AN C T I O N S O U ST B E
V AC AT E D BECAUSE THEY WERE NOT
B SED ON
SUBSTANTIAL EVIDENCE T T MR.
LUTALO COMMITTED A PROHIBITED
CT AND VIOLATED PRINCIPLES OF
FAIRNESS.
II.
MR. LUTALO'S JUNE 2005
DISCIPLINARY SANCTIONS, BASED
IN PAR ON HIS POSSESSION OF
ITEMS THA FORMED THE B A S I S
OF HIS MAY 2005 D
S C I P L I N A R Y CHARGE, VIOLATED
PRINCI LES OF
FUNDAMENTAL FAIRNESS.
1
III.
DISGUISED AS DISCIPLINE FOR
REGULATIONS VIOLATIONS TOE
ACTIONS HERE IMPROPERLY DEPRIVE
MR. LbTALO OF
EXPRESSIVE RIGHTS.
The issue raised in Point II of Lutalo's brief
lacks sufficient merit to warrant more than the brief
comment that follows. See R. 2:11-3(e)(1)(E).
Neither the law
Sep 13 2007 8:18AM
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AFSC Newark NJ
9736431924
p.6
5
A-3294-05T2
record supports the
claim.
narmulc.= 1,1[
prison disciplinary
hearings are not part of a criminal prosecution, Wolff v.
McDonnell, 418 U.S. 539, 556[,] 41 L.L. lEd. 2d 935, [951,1
94 S. Ct. 2963[, 2975] (1974), and therefore do not
implicate double jeopardy concerns, see Breed v. Jones,
421 U.S. 519, 528, 44 L. Ed. 2d 346[, 354-55,] 95 S. Ct.
1779[, 1785] (1975) (application of the double jeopardy
clause is limitrd to proceedings which are 'essentially
criminal')." Lucero Ir. Gunter, 17 F.3d 1347, 1351 (10th
Cir. 1994). The Department issued the June charges after
a second search of Lutalo's cell and confiscation of
additional materials adequate to support the charge.
Thus, the infraction was based, at least in part, on
different evidence and conduct. For that reason, we
decline to consider whether principles of fundamental
fairness would bar repeated attempts to establish
disciplinary infractions lased on the same conduct.
Lutalo's challenge to the adequacy of the evidence
supporting the June 2005 charges, which is argued in
Point I of his brief, is moot. On remand from this
court, the June 2005 charges were downgraded to an onthe-silt correction for possession of unauthorized
materials. 'the adjudication and sanction imposed as a
consequence of the *.803/.206 charge have been removed
from his record. Lutalo dpes not contend that he was
denied the procedural protections required prior to minor
Sep 13 2007 8:18AM
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AFSC Newark NJ
9736431924
6
disciplinary action of the sort involved here or
that his possession of the materials was
authoized. See N.J.A.C.
7.2(a),(e); Avant v.
Clifford, 67 N.J.( 496, 519 (1975) (concluding
that N.J.A.C. 10A:4-7 affords all procedural
protections due prior to an on-the-spot
correction).
The Department's determinations t t Lutalo
committed infractions *.704, perpetrating
p.7
A-3294-05T2
fraudjdeceptions, confidence games, riots or escape
plots; .705, ()pirating a business or nonprofit enterprise without.approval of -6e
Superintendent
; or [
.706, which prohibits solicitation of iunds or
contributions
except as permitted by the Administrat9r, cannot,
affirmed. The record does not include'sufficient
however, be
credible evidence to support a finding of guiltkn any
of those charges.
On July 26, 2001, the Department ranted "Michael
Hajduk - Media Representative" permission to interview
Lutalo. Hajduk completed a form agreement prepared
bylthe Department. On the form, he provided a phone
number and identified himself as a "freelancer." He
agreed to "provide nci compensation, either direct or
indirect," to Lutalo or membdrs of his family. He
acknowledged that the "videotape or
filim is
for broadcasts
or airing no more than twice on the station of origin
for news or
1
documentary purposes . . . and that the sale or rental
of film,
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6
Sep 13 2007 8:18AM
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9736431924
7
p.8
A-3294-05T2
videotape, movie or other material
fob
additional
pecuniary gain is prohibited."
Lutalo signed a consent form prepared by the
Department on which he acknowledged his agreement to, be
interviewed by Hajduk, a "media representative" with
"Comcas Cable." He also acknowledged his consent to
Hajduk's use of any videotape and information
gathered, and the Departmeit's release of any
relevant information about him. The form Lutalo signed
does not refer to the agreement between the freelancer
and the Department

or otherwise limit use of the video.
The record does not include any d cument in which
I
either Lutalo or Hajduk made any representation about
the content the interview. Neither H-ajduk's agreement
of
nor Lutalo's consent form addresses the subject matter
or plrpose of the interview.
1
The investigation report states that H4jduk's video was
to be entitled "MCU's Extended Isolation andPrisoner's
Rights," but the basis for that conclusion drawn
bylthe Department is not identified.
A videotape of Lutalo entitled "Welcome to the
Terrordome" was produced. According to the DepartIrent's
report, that video shows Lutalo discussing "Attica and
Prison Reform," "Purpose of
1
State and Class," the "Black Liberation Army" and "Banned
and
Censored." Comcast's President subsequently told a SID
Sep 13 2007 8:19AM
AFSC Newark NJ
Pal7
9736431924
8
investigator that Hajduk never worked as a reporter or
freelancer for Comcast, but the President also
explained that Hajduk "airs a program on a community
access channel and uses
'their editing facilities." Bonnie Kerpess, of Prison
Watch, wrote to Lutalo and suggested production of a
video telling Lutalo's story for a cable show known
a,s, "Ronnections."
The Department's investigators se6rched the internet
and found a website on which a video of thb Lutalo
interview was offered for sale at a price of $15.00 4ith a
representation that - the "Proceeds from sales are sent
direLtly to Ojore [Lutalo]." A flyer promoting the video
was among the documents found in Lutalo's cell. While that
flyer provides information on how to obtain a copy of
the video, it does nc4 refer to sales or a sales
price.'
p.
A-3294-05T2
The "confidential appendix" the D4partment
submitted on this appeal includes articles that a
reasonable person could understand as soliciting
cash and post4ge stamps for distribution to
specified inmates, inc]uding Lutalo. One of the articles
lists Lutalo as a member of. alcommittee that makes
decisions about distribution of the contributions
collected.
Although this flyer is included in the
Department's confidential appendix, we cannot conceive
of any justification for preventing Lutalo from
reviewing that evidence.
Sep 13 2007 8:19AM
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FIFSC Newark NJ
9736431924
9
Another includes a statement praisingit is support
program that is attributed to Lutalo.
The Department also reviewed records of Lutalo's
prison trust account. Deposits in varying amounts
totaling $2098.15 were made between January 1, 2001
andAugust 1, 2005, by "Lancaster ABCF," a branch of the
Anarchist Black Cross Federation, and Fasnacht, a
member of ;that organization. Without stating a
basis in the record, the Department concluded that
these deposits, some of which were made prior to the
July 2001 interview, were from proceeds of 'the sale of
p-10
A-3294-05T2
the video.
Lutalo maintained that these deposits were
donations. Fasnacht, who identified himself as a *Member
of the ABCF, submitted a letter in support of that
claim. According to Fasnacht, he organized the support
program and Lutalo received donations but had no role
in the soliclitation.
The hearing officer's decision, which was adopted by
the Department without additional comment explanation,
includes the following findings. A representative from
Comcast Cable was given permission to interview Lutalo
for purpose of producing a program "entitled MCU's
Extended Isolation and Prisoners['] Rights." The video
produced after that interview was entitled "Welcome to
the Terrordome.“ The interviewer's agreement with the
Department prohibited sale of the video. Deposits were
made
Pa19
10
Sep 13 2007 8:20AM
nFsc Newark NJ
A-3294-05,22
9736431924
to Lutalo's account, which he contends are
donations. Kerness did not explain how Lutalo had a
vided for sale and did not provide her address or
p. 11
phone number in her letter. Based on those findings,
and without further explanation, the hearing officer
concluded that Lutalo was "guilty of all three
charges."
Although this court may not substitute its
"judgment for that of the agency where [the]
findings are supported by substantial credible
evidence in the record," Johnson v. Dep't
of Corr.,
375 N.J. Super. 347, 352 (App. Div. 2005); see Henry
v. Rahway State Prison, 81 N.J.
79-80 (1980)
(discussing
review of decisions of an administrative agency), "we
571, 5
cannot be relegated to a mere rubber-stamp of agency
action." Williams v.
Dep't of Corr., 330 N.J.
Super. 197, 204 (App. Div. 2000). We do not affirm
an agency decision that s not supported by
substantial credible evidence in the record.
In this case, the evidence does not support the
decision made by the hearing officer and adopted
by the Department. There is nothing in this record
that indicates that Lutalo made any representation
about the subject matter of his video interview
or any false representation about Hajduk's status or
affiliation. We see no basis for the conclusion that
Lutalo engaged in conduct involving false pretense,
fraud or deception in connection with the video, and
the Department's decision does
Pa
20
Sep 13 2007 8:20AM
AFSC Newark NJ
9736431924
not explain how it reached that conclusion. The
Department's decision is not based on a finding
that Lutalo benefited from and lent his name to
a campaign for charitable contributions; it is
based only on the Department's conclusion that the
deposits were traceable to sales of the video.
There was no evidence linking the deposits in
Luta•o's account and proceeds from the sale of the
video and no evidence of Lutalo's involvement in
marketing the video or soliciting contributions
in return for its distribution. The Department's
decision is nothing more than a conclu$ory
assertion of Lutalo's guilt that is not supported
by or explained with reference to substantial
credible evidence in the record. More is
required to permit us to defer to the expertise.
f the Department and its investigators. See
Williams, supra, 330 N.J. Super. at 203-05.
The adjudication and penalties imposed for
p.12
disciplinary infractions *.704, .705 and .706 are
reversed and vacated; the on-the-spot correction
for possession of unauthorized materials is
affirmed; the Department previously: vacated the
adjudication and penalty imposed for
infractions *.803/.206.
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Pa21
11
A-3294-05T2
MCU — 2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE .REVIEW
NAME: Lutalo, Ojore
NUMBER: 59860/901548
. The MCURC had reviewed evidence and considered the
testimony relative to Inmate Lutalo his routine review,
pursuant to 10A:5-2,10. This evidence . includes:
x 1.
Documents supporting initial: placement decision
x 2.
Disciplinary Reports
3.Program Participation Report
4.Social Services Report
x S.
Medical Report
6.Psychological Interview Report
7.Special Investigation. Division Report
x 8.
Compliance with revised MCU placement phases
x 9.
Housing Reports
Inmate Statements / Comments
"Pm being persecuted and discriminated against. You feel
that my affiliation with the Black Liberation Army and the
Anarchist Black Cross Foundation poses a problem. .I'd like
to know what's the problem? The State police, FBI and
Homeland Security are aware of it. What concerns do
Administration have with my political affiliation? In 2002, I
was released into GP with the same affiliation.
Based on the above 'the MCURC has determined
the following, which justifies the decision of the
committee:
The MCURC notes yourconcerns regarding your feelings.of
persecution and discrimination based on your political
affiliation. The Committee continues to . • show concern
regarding your admitted affiliation with the Black Liberation
Army and the Anarchist Black Cross Foundation. Your
radical views and ability to influence others poses a threat to
the orderly operation of this Institution. Furthermore, you
have yet to complete any of the necessary programs required
for -consideration of release from the Management Control
Unit: Your actions continue to pose a threat to the safety and
security of any. correctional facility:
InmateLutalo is assigned to Phase I o ______________ circle one)
It is the decision of MCURC that Inmate Lutalo should
remain assigned to the Management Control Unit at this
time..
Next Routine Rev'ew i scheduled for
I Ms. Raupp
true and accurate cord of
May, 2008
certify that the above represents a
proceeding.
MCURC Chair Mr. Warren
Professional Services Representativ Mr.
Custody Supervisor Lt. Moran
Date. 2/28/2008
Pa22
AJE-2,04-----Sce,
Decision delivered to inmate by
(DR
CC:
MCU-5. • Revised 12/02
Name and Title Date of delivery 
MCU Folder Classification
File
Pa23
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ANNUAL REVIEW — 4111 ROUTINE REVIEW
NAME:
Lutalo, Ojore
NUMBER:
59860/901548
I.
The Management Control Unit Review Committee (MCURC) has considered the evidence and
testimony submitted by inmate Lutalo at his Annual Review, pursuant to N.J.A.C. 10A:52.11. It is the opinion of the committee that inmate Lutalo has/has not demonstrated to the Committee
that he is a suitable candidate to be considered for release from the Management Control Unit for the
following reason:
Inmate
Lutalo
has/has not:
1.Participation in required programs, jobs, educational and recreational programs
2.Complied with the criteria detailed by the MCURC
_____ 3.
Maintained good disciplinary conduct
x 4.
Agreed to affirm the obligation to adhere to institutional rules and regulations.
INMATE
Lutalo STATEMENTS/COMMENTS:
"I have congregate status and Ricci moved me down here so I can't participate in any programs."
Inmate Lutalo also provided a written statement.
COMMENTS:
The MCURC notes your request to be released into general population or transferred to another state
facility. The Committee believes that continued placement in .MCU is necessary at this time. Your
admitted affiliation with the Black Liberation Army and the Anarchist Black Cross Foundation
continue to cause a concern for the Committee. Furthermore, you have yet to complete any of the
necessary programs required for consideration of release from the Management Control Unit. Your
actions continue to pose a threat to the safety and security of any correctional facility.
Inmate
Lutalo
is assigned to Phase I or
(circle one)
Your next Routine Review is scheduled for
Februar 2008
Your next Annual Review is scheduled for
November 2008
Special Classification Committee: airman: Mr. Warren Professional Services: Mr. Zell Custody: Lt.
Moran
Decision delivered to inmate by
—V74 AIX
Date of delivery k,..G-t,--;/} KA-5. 9 6 , f ?
Name and Title
CC: MCU Folder
Classification File
MCU —2,
Revised
12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutalo, Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to
Inmate Lutalo his routine review, pursuant to 10A:5-2.10. This evidence includes:
1.Documents supporting initial placement decision
2.Disciplinary Reports
3.Program Participation Report
x 4.
Social Services Report
x 5.
Medical Report
x 6.
Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
x 9.
Housing Reports
Inmate Statements / Comments
"I have congregate status and Ricci moved me down here so I can't participate in any
programs." Inmate Lutalo also provided a written statement.
Based on the above the MCURC has determined the following, which
justifies the decision of the committee:
The MCURC notes your request to be released into general population or transferred to
another state facility. You can request an Interstate Transfer Request form through your
Social Worker. The Committee also notes from your written statement that a former
MCU inmate was transferred to a "halfway back"
program and you would like to be afforded the same opportunity. Please note that inmates
are transferred to "halfway back" programs as a condition of Parole. The Committee
continues to show concern regarding your admitted affiliation with the Black Liberation
Army and the Anarchist Black Cross Foundation. Furthermore, you have yet to
complete any of the necessary programs required for consideration of release
from the Management Control Unit. Your actions continue to pose a threat to the
safety and security of any correctional facility.
Inmate Lutalo is assigned to Phase I
or
(circle
one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management Control Unit at
this time.Next Routine Review is heduled for Fbrua
008
I Ms. Raup true and acc
MCURC Chair
fit certify
the above represents a
e rec
t e pr c ding.
iA
Professional Services Representative Mr. Zell
Mr. Warren
r
a24
P
Custody Supervisor Lt. Moran
Decision delivered to inmate by
Date of delivery 2)6'..,,<;,X1,--C /Y007
• Date 11/29/2007
Name and Title
cc: MCU Folder Classification File
MCU — 2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE. PREVIEW
NAME: Lutalo Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate Lutalo his routine
review, pursuant to 10A:5-2.10. This evidence includes:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Documents supporting initial placement decision Disciplinary Reports
Program Participation Report
Social Services Report
Medical Report
Psychological Interview Report
Special Investigation Division Report
Compliance with revised MCU placement phases Housing Reports
Inmate Statements / Comments
Inmate Lutalo, Ojore refused to attend his August, 2007 Routine Review.
Based on the above the MCURC has determined the following, which justifies the decision of the
committee:
The MCURC notes your refusal to attend your August, 2007 Routine Review. You are encouraged to attend all
Routine/Annual Reviews as well as all available MCU programs. You have yet to complete any of the required
programs for consideration of release from the Management Control Unit. While serving Administrative
Segregation time in 2005, you received several institutional infractions including soliciting funds, operating a
business/group without
approval and perpetrating frauds/escape. Your actions continue to pose a threat to the safety and security of any
correctional facility.
Inmate Lutalo is assigned to Phase I or Phase II (circle one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management Control Unit at this
time.
Next Routine Review is s I Ms. Raupp
eduled for
November, 2007
tify that the above represents a
true and accurate r eor o th MCURC Chair Mr. Salaga
ceeding.
Professional Services Representative ______ Zell
Custody Supervisor Lt. Moran
c Date 08/30/2007
Decision delivered to inmate by
J
A,t_o (.4-41
Name and Title
Date of delivery
CC:
MCU —2 Revised 12/02
MCU Folder Classification File
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME: Lutalo, Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate Lutalo his routine review,
pursuant to 10A:5-2.10. This evidence includes:
1.Documents supporting initial placement decision
2.Disciplinary Reports
x 3.
Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
x 8.
Compliance with revised MCU placement phases
x 9.
Housing Reports
Inmate Statements / Comments
Inmate Lutalo, Ojore refused to attend his May, 2007 Routine Review.
Based on the above the MCURC has determined the following, which justifies the decision of the
committee:
The MCURC notes your refusal to attend your May, 2007 Routine Review. You are encouraged to attend all
Routine/Annual Reviews as well as all available MCU programs. While in Administrative Segregation you
received several institutional charges including soliciting funds, operating a business/group without approval and
perpetrating frauds/escape. This type of behavior poses a threat to the safety and security of any correctional
facility.
Inmate Lutalo is assigned to Phase I or Phase II (circle one)
It is the decision of MCURC that Inmate Lutalo should remain assigned to the Management Control Unit at this
time.
Next Routine Review is sc u eduled for
I Ms. Raupp
August, 2007
certify that the above represents a
true and accurate relor s of the ro e M C U R C C h a i r M r . K a n d e l l
Professional Services Representative Custody Supervisor Lt. Moran
Date 05/31/2007
Decision delivered to inmate by
(i)
Date of delivery
cc:
(A-N1
k•
Name and Title
MCU Folder Classification File
MCU — 2 Revised 12/02
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
ROUTINE REVIEW
NAME:
Lutalo, Ojore
NUMBER: 59860/901548
The MCURC had reviewed evidence and considered the testimony relative to Inmate
review, pursuant to 10A:5-2.10. This evidence includes:
Lutalo
at his routine
1.Documents supporting initial placement decision
2.Disciplinary Reports
3.Program Participation Report
4.Social Services Report
5.Medical Report
6.Psychological Interview Report
7.Special Investigation Division Report
8.Compliance with revised MCU placement phases
x9.
Housing Reports
Inmate Statements / Comments
We have 2 due process violations. I was supposed to come in September and December. The charges that
initially brought me back up here the court ruled illegal. I don't have no status so I can't participate in
any groups.
Based on the above the MCURC has determined the following, which justifies the decision of the
committee:
The MCURC notes your return to MCU as well as your lack of program participation. While in Administrative
Segregation you received several institutional charges including soliciting funds, operating a business/group
without approval and perpetrating frauds/escape. This type of behavior poses a threat to the safety and security
of any correctional facility. You are encouraged to participate in all available programs.
Inmate
Lutalo
- is assigned to Phase I or (Phase I I ) (circle one)
It is the decision of MCURC that Inmate
Lutalo
(should) /
should not remain assigned to the Management Control Unit at this time.
Next Annual Routine Review is scheduled for
I Ms. Raupp
the proceeding.
May, 2007.
certify that the above represents a true and accurate record of
Dr. Farber
MCURC Chair Mr. Kandell
Professional Services Representative
Custody Supervisor Ca tain Ortiz
Date
2/27/07
Decision delivered to inmate by
Date of delivery
3-6 and Title
cc:
MCU Folder Classification File
C: On file
To: Aanagemant Control Unit Review Committee (:CRC)
Tr.: Dj3f._ N. 'autalo,
59850 ,4 301343 ;'25 - 'aeft
Re: Disciplinary Infractions: *.303 1 *.303, *.704,.705 1
.706 liatalo Vs. New Jersey Dept:. of Corrections - Docket i
A3294-05T2
DA: November 6th, 2007
The above captioned disciplinary infractions were the basis of my
Criteria Record Sheet Which resulted in my re-interment in the M.C.O.
back in Nov. 2005 & since then, the M.C.U.R.C. nave utilized these
trumped-up disciplinary infractions to circumvent my release from
the M.C.U.
At this time,. I am petitioning the M.C.U.R.C. to release me back
into the general population here at Trenton State Prison (or)
Preferably, Transfer me to another State Prison due to the limited
time left on my sentence. And the fact that after I filed my brief on
the merits in the above captioned matter, the Administration moved
for a remand to review the *.8031*..306 disciplinary infractions and
the adjudication and sanctions imposed as a consequence of the
*.303/*.305 disciplinary infractions were vacated and removed from
my Record. Therefore the above listed charges should also be expunge
from my "Classification Folder" based upon the App. Div.'s decision.
The adjudication and. penalties imposed for disciplinary infractions
*.704, .705 3, .706 were reversed and vacated by the Appellate
Division of the Superior Court on August 24th, 2007.
For the record, when I got locked up on June 10th, 2005 for the
*.303/*.306, I had been out of the for four years and eight months
without incident, my custody status was medium with '2' points and I
was slated to appear before the Parole Board on June 15th, 2005.
The New Jersey Dept. of Correction is listed a contracting agency with
Tully House :1 Tha Harbor that offers reintegration assistance
programs. I would like to be considered for placement in such a
program at this time.
It is possible to be transferred directly to such a program from the
M.C.O. Another prisoner named Rajaou Ogbonna Khalfani, #70774 was
transferred direct to a Newark, New Jersey based halfway back program
from Mnagement -Control. Unit.
Foot Note: I also found not guilty of the Nay 19th, 2005
Disciplinary Infraction - that is noted in my Criteria Record
Sheet of October 17th, 2005. I was found. Not Guilty on May 26th, 2005
in General Population.
Pa28
NEW JERSEY STATE PRISON
OFFICE OF THE ADMINISTRATOR
MEMORANDUM
DATE: January 9, 2006
TO:
Inmate Ojore N. Lutalo #59860/901548
FROM:
4B- Left
ichelle R. Ricci, Associate Administrator
SUBJECT: Your letter dated November 29, 2005 regarding reassignment to
the Management Control Unit, Mail, and Interstate Transfer
I have received your letter, dated November 29, 2005, concerning the above
captioned subject. Your letter indicated that you are contesting your
reassignment to the Management Control Unit. You're also contesting the
allegation that you have been receiving an unauthorized publication at this
institution. In addition, if you're not released from MCU back to general
population, you are requesting a transfer, via the Interstate Compact Agreement
to Alaska, Oregon, New Mexico, and/or the Federal Prison System.
Be advised, upon review of your Classification folder and the Criteria for
Commitment Sheet that was provided to you at the last MCU review, your
request to be released back to General Population is DENIED. According to your
disciplinary record, you were found guilty of several non-asterisk sanctions from
possession not authorized to more serious asterisk sanctions such as
perpetrating frauds, deceptions, confidence game, riots, and escape plots. As a
result, the l'OCU committee took the severity of these charges into congideration
along with your past disciplinary record when you were reviewed for placement.
Furthermore, in regards to your mail, it is a fact that you have been receiving
unauthorized publications that are considered security threats to the institution. In
May of 2005, you were found to be in possession of hand made "flyers/posters"
from news clippings, firearm catalogues, books dealing with the Black Panthers,
Grips, Bloods, and seventeen (17) pictures of sniper and assault rifles. Mr.
Lutalo, if you are requesting a transfer to another state, via Interstate Compact
Agreement, you should write to the Classification Department or contact your unit
social worker to assist you with this matter.
CH:c
Cc:
File
To: Donald Mee Jr.
Assistant Warden
Chairperson MCU-SCC
From: Ojore N.
Lutalo
#59860/
SBI#901548
Pa29
#4B-Left
Date: November 29th, 2005
.-Re: Political decision to re-assign me back
into the Management Control Unit (MCU)
This appeal is being composed to contest my re-internment
into the Management Control Unit (MCU).
I readily admitted being associated with the BlackLiberation Army (BLA), the Anarchist Black Cross Federation
(ABCF) and the American Friends Service Committee (AFSC)
because I have a "sup posed" First Ammendment right of
freedom of peaceable assembly which has been violated by'
the MCU-SCC's decision to re-assign me to the MCU because of
my associations with the above named organizations, who at
no times were involved in any illegal or illicit activities
with me that could cause the disorderly running of New
Jersey State Prison. There is no documented record of since
I have been here at New Jersey State Prison since September
1982.
Moreover, this Administration was fully aware of my past
associations with the BLA and my present associations with
the ABCF and the AFSC. When they released me back into
general population here at New Jersey State Prison on
January 16th, 2002 after I served 16 illegal years in the
MCU on trumped up administrative conspiracy to escape
allegations, that the Special Master in Pack v. Beyer case
found had no erit.
At that time, if the Administration felt that my
associations with the BLA, ABCF and AFSC and now the New
World Generals, the
page two
so called militaristic and radical off shoot of the Nation
of
of Islam and it's Death Squad, would or could pose a threat
to the orderly running of New Jersey State Prison, the
Administration could have contested my release back. into
the general population
in the state or federal courts on security concerns and I am
certain that the courts would .have sided with the
Administration's security concerns.
I was Released from the MCU on January 16th, 2002 and
remained incident free up until June 10th, 2005. As late as
February 2005, you, yourself Donald Mee, noted my positive
adjustment since my release from the MCU and even
encouraged me to consider a transfer to Southwood State
Prison at my February 2005 routine Classification review.
I am also contesting Investigator R. Dolce's allegations
that i have been receiving un-Lauthorized publications. All
of the publications that I ever received here at New Jersey
State Prison were approved for my possession by the mail
room censors.
For your information I am enclosing 3 Notorized letters from
people who have sent publications over the years that I
received through the mailroom. All I have done is adhere to
my rights and responsibilities-in terms of having reading
material sent to me in accord with 10A:4-3.1 Notification of
Prisoners-of their Rights and Responsibilites.
(A)
Rights Number 9, "You have the
rightAo a wide range of reading
material for educational purposes
and for your own enjoyment"
(B)
Responsibilities Number
"It is
your responsibility to seek
and utilize reading
material for
your personal benefit,
without
to use same"
depriving others of
their right Ils
--"7"mIllrMr17-17.77
page three
1.Correspondence from Matthew R. Tubin, dated May 21st,
1999.
2.Correspondence from Matthew R. Tubin, dated June
22nd, 1999. 3.- Correspondence from Timothy A.
Fasnacht, dated May 25th, 1999.
Since June 10th, 2005 (starting 6 days before I was
to appear before the Parole Board on June 16th, 2005),
Special Investigation Division (SID) Agent R. Dolce has
written me 8 disciplinary reports and during the course
of his campaign of political persecution against me, he
has in concert with pillion passengers, taken
evidence from 1 disciplinary infraction that I was found
not guilty of and used it to write me up another
disciplinary infraction that I was found guilty of.
Because of such criminal behavior, I do not give
credence to anything Agent R. Dolce say and view him as
a man and an Agent of no integrity, who should not hold
such a position.
In conclusion, I hold the position,that I have
demonstrated through my 4 year positive adjustment out
of the MCU, I can function in any general population
setting if my political past is not used
judge.
Being a man who do not harbor any illusions, I do not
ever expect to be released back into general population
here at New Jersey State Prison, so I am open for a
transfer to: Alaska, Oregon, New Mexico or into the
Federal Prison System....
Enclosures
: as noted
CC: file
1),a32
(1)
G-125
Revised 1212002
Department of Corrections
NEW JERSEY STATE PRISON
NOTICE OF CLASSIFICATION DECISION
INITIAI MANAGEMENT CONTROL
NAME: Lutalo, Oiore
INIT
PLACEMENT
NUMBER: 59860/901548
ASSIGNMENT: Management Control Unit
REASON: After thorough consideration of your case, and in accordance with N.J.A.C. 10A: 52.6(2)(q), including the matters discussed at your recent classification hearing.
EVIDENCE RELIED UPON:
Chairman:
Professional Services:
Custody:
Social Services
Donald Mee, Jr.
Dr. DeFlippo
Captain Bleistein
Marshall Fletcher (Recorder)
Lutalo ()lore #59860/901548 - On November 9, 2005, inmate Ojore appeared before the MCURC with his paralegal
inmate Ukawabutu, Ra'Zulu #236126/487907B. Both inmates acknowledged they were prepared and ready to proceed.
During the course of this Management Control Unit Placement Hearing, the following items were considered:
1.
The Criteria Record Sheet.
Chair:
Introduces Committee and states the purpose for the hearing and explains the proceedings as to the Criteria
Record Sheet and challenges by inmate. "Item 1-V111.
Chair:
This is your MCU Placement Hearing. You have been here before. Pertaining to your Criteria Sheet where
do you want to start?
Inmate:
We can start with, go through the Criteria sheet.
Chair:
Do you need a minute to go through the information/Criteria Sheet with the Paralegal?
Paralegal:
Yes, Mr. Mee can you give me a minute to go through the paper work.
Chair:
Sure, tell me when you are ready (couple minutes lapsed.)
Chair:
Are you ready?
Paralegal:
Yes, most of his statement will be supported by paper work that will be given to the Chair.
Paralegal:
Hands A-1 to Chairman Mr. Mee Document A 3 pages (MCU
Hearing of State for the record dated 11/9/05)
The Chair noted that Section VII Attitude Toward Authority is a summarization of Investigator Dolce's report of August 9,
2005.
Chair:
This document is recorded and noted 1 (3) three pages dated November 8, 2005 (Ref: Initial Placement
Hearing response/partial) (Attitude Toward Authority)
Inmate
:
On Section VII Attitude Towards Authority; in 1986, I received
charges of Conspiracy to escape and violent demonstrations while
on the MCU on the Classification Decision dated March, 1986 that I
never received that disciplinary infraction on the alleged escape plan
and riot charges.
Chair:
Inmate:
Chair:
Inmate:
Chair:
Chair:
(2)
This initial placement is different from the one heard by the "Special Master" this is a different
placement all together.
Paralegal:
Handed Chairperson (notice of Classification Decision) dated March 18, 1986.
Chair:
This document is labeled Doc #A-2 (Notice of Classification Decision dated
March 18, 1986.
Inmate: The Classification Decision document states that I was implicated on trying to escape
and violent demonstrations at the prison. But I never received the charges.
Paralegal:
Handed chair documents dated 11/09/05 (MCU Hearing of statement for the
record.)
Chair: Okay, this statement submitted is labeled Doc. A 3 (2) two pages dated 11-9-05
(MCU Hearing of 0 Lutalo #901548 statement for the record)
Paralegal:
Section III of the MCU Criteria Sheet list the four (4) disciplinary charges for the
year of 2005 are all pending Appeals to the Appellant Division. It should be noted
that Mr. Lutalo has been cleared by the special master on the Pack v. Beyer
decision of the incident which resulted in his initial placement in MCU.
Chair:
Section III those charges may be pending from the Appellant Division however your
placement is different from your previous, from the master in the Pack v. Beyer
decision.
Inmate:
Okay, but there are other issues of the Criteria sheet. I want talk about, for
example my political views.
Chair:
Okay.
Paralegal:
Also in response to Section V of the MCU Criteria Sheet does not reflect that Mr.
Latalo has participated in any programs. Mr. Lutalo participated in the program
Senior Men, and has received a certificate showing his completion (Paralegal hands
Chair a copy of certificate)
Chair:
Certificate showing program completion (Seniors United to Motivate) dated
August 29, 2002 is labeled as Doc. A-4 for the record.
Paralegal:
Section VII of the MCU Criteria Sheet consists primarily of
information and incidents that are unsupported, or which Mr. Latalo
was cleared of. Mr. Lutalo has presented his own written
objections to these noted incidents.
What is concerning us is that while you were in the Management Control Unit and General Population
you continued to involve yourself with groups of a radical nature that focus on the disruption of the
prison security and the orderly running of this institution.
I was a member of the (Black Liberation Army) BLA since the
1970's. You are saying that I am guilty due to my association.
Ninefeen eighty -one (1981) when I was on Parole. I was involved out in society with this organization which was political
and had no problems.
Pertaining to your Criteria Sheet there is not a problem with association, however your actions and
activities are the problem.
It's a Black support organization and my association has nothing to do with New Jersey State Prison.
Your involvement continues to be subversive in naturepa34
Paralegal:
Chair: Noted:
Noted:
Noted:
Noted:
(3)
Hands chair remaining documents listed. Noted inmate A8 items seized during a cell
search dated June 5th and June 6, 2005 (10) ten pages; five pages (What is A5 Anarchist
Black Cross Federation) A6 copy of the Trentonian dated Sunday December 21, 1975
(Bank heist suspects nabbed in gun battle) Courtline date of Tuesday October 25,
2005 Re: Potential persecution-disciplinary report 803/306.
Letter to Special Investigations Division dated June 5, 2005 and June 6, 2005 labeled as Doc.
A5 (10) ten pages.
Copies of newspapers (what is the Anarchist Black Cross Federation) labeled A5 (5) five pages.
Copy of newspaper (the Trentonian (4) four pages (Bank heist suspects nabbed in gun battle)
labeled A6.
Letter to Courtline ref: Political Presentation Disciplinary Rep. 803/306 dated October 25, 2005
labeled A7 (5) five pages.
Inmate:
It is not like I was using the organization to receive documents and other materials for any type of
subversive reasons. All the publications in question in the Criteria Sheet came through the mailroom
and receiving the materials now in questions is one of my rights and one of my responsibilities as
articulated in the New Jersey Department of Corrections hand book or discipline for prisoners.
Chair:
Yes, the confiscated materials in question.
Inmate:
I still have a problem with the Criteria Sheet VII, attitude towards authority; information it was
written by Investigator Dolce and hi has been trying to get me since 1985.
Chair:
The information in that section was investigated by Dolce.
Inmate: The Management Control Unit Special Classification Committee (MCU -SCC) should disregard the
reference being made to the two (2) disciplinary reports in October 17, 2005 Criteria Record sheet
because SID Agent R. Dolce is not a man or agent of integrity.
Chair:
Anything else.
Inmate:
Also the AFSC (American Friends Service Committee) does not involve themselves in any
political reasons or activities of illegal nature.
Chair:
What about the attempt to send you information and materials to reconstruct fraudulent
identifications of documents.
Inmate:
I was a member of AFSC since 1995 they were approved to visit me and are a support group on the
outside. Administration approved it and now (10) ten years later it a problem. I don't understand that.
Chair:
Okay, it is noted.
Inmate:
I have been charge free since 2000 and now I receive charges in June 2005 *803 -306. I have not
had any problems or incidents up to that date.
Chair:
Yes.
Inmate:
Look at my disciplinary charges since MCU I do not nor had I ever threatened anybody.
Chair:
Okay, on of the handouts that I received from you "Prisoners of war" what type of war are you
speaking of?
Inmate:
You know my political history. I had been apart of the AFSC since 1985 that's my political
history.
Chair:
Most of the organizations that you participate/associate with are not friendly organizations.
Inmate:
These organizations do not control my behavior in prison.
Chair:
Is there anything else?
Inmate:
There is no proof that I did anything in New Jersey State Prison.
(4)
Inmate:
I tried to transfer out of Trenton State Prison but you would not give me a chance.
Chair.
Anything else.
Inmate:
No.
Paralegal:
No.
DECISION:
Inmate Lutalo has maintained throughout his testimony that the groups to which he belongs are
not involved in any illegal activities. He claims they are support groups that provide aid to inmates
throughout the United States and Canada. He describes himself as a political prisoner having done
nothing wrong. He states his record is very good and has remained charge free since 2002. Inmate
Lutalo states that Investigator Dolce has a personal vendetta against him because of his political
history. Lutalo readily admits being associated with the Black Liberation Army, the Anarchist
Black Cross Foundation and the American Friends Service Committee. He denies ever using these
organizations for any illegal or illicit activities. He claims these organizations have chosen him
to support. During his testimony inmate Lutalo characterized himself as passive and innocent in this
scenario.
Investigator Dolce's report which is summarized in Section VII Attitude Toward Authority however
describes inmate Lutalo in great detail as an involved individual who actively participates, recruits and
is engaged in the activities of organizations whose only purpose is to overthrow legitimate
governmental agencies. These organizations espouse the use of violent methodologies to
carryout their goals. Inmate Lutalo throughout the years has continued to receive volumes of
literature and materials through these organizations relative to the purchase of weapons, firearm
information disruptive tactics such as strikes and guerilla warfare. Even the documents inmate
Lutalo has submitted to MCURC for review describe the organization to which inmate Lutalo belongs
as 'Militaristic and radical off shoot of the Nation of Islam"(A-6, 3 of 8) Anarchistic/anti Authoritarian see A5, 4 of 5 and A-6, 3 of 8 a photocopy of the Trenton Times article dated September 12, 1979
identifies Lutalo as a member of a 'Death Squad of the New World Generals a radical branch of the
Nation of Islam."
It is ironic to note that these organizations consider inmates that have been lawfully convicted of
notorious crimes to be Political Prisoners. Inmate Thomas Manning, Richard William, Clark
Squire (Sundiata Acoli) and Joanne Chesimard have all been convicted in the deaths of State
Troopers. These inmates are considered to be political prisoners and receive financial support from the
Anarchist Black Cross Federation.
Although inmate Lutalo has maintained a good disciplinary history it is clear from Investigator
Dolce's report that inmate Lutalo maintained his association with these disruptive organizations.
He has been an extremely active member of these groups. He has involved himself in recruiting
and has even been involved in fund raising for these organizations. He has become even more
active while assigned to General Population at New Jersey State Prison.
It is therefore the decision of this Committee that due to inmate Lutato's continued association
and participation with organizations whose sole function is to disrupt l egi ti m at e
go v e rnm e nt a l a ge nci e s, in m at e Lu ta lo sho ul d be a ssi gn ed to t h e Management Control Unit
at New Jersey State Prison.
Pa36
(5)
Attached please fine Mr. Morton's memo dated December 23, 1996 "MCU Placement Phases"
MCURC:
Chairman: ____________________________
Professional Services:
//77(‘,//
Date: 1/ /2 3 /CIS-
Cc:
Custody:
MCU Folder Inmates Folder
Delivered to inmate by:
/CC–
Name and Title
71 .
L cif
CC-r/ Date Delivered: 11/2---
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Required for Each Choice
03-01-2006 01:59:55
Conditionally Required Dependent Upon Placement or Residence Choice
Parole Plan Interview
‘Name
• Inmate Number
PN59860 LUTALO, Ojore
Living Unit
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Comments
Date. Taken
Signature
State of New Jersey
JON S. CORZINE
GOVERNOR
NEW JE RSE Y STA TE P AROLE BOA RD
P.O. BOX 862
TRENTON, NEW JERSEY 08625
TELEPHONE NUMBER: (609) 292-4257
PAUL J.
CONTILLO VICECHAIRMAN
May 25, 2006
Ojore Lutalo PN59860 70 /-5NEW JERSEY STATE/PR SON
PO BOX 861
Second & Cass Sts.
Trenton, NJ 08625
/ e - 1 -
7 1
RE:
Appeal of Parole Denial Dear Mr. Lutalo:
JOHN D'AMICO, JR.
CHAIRMAN
This is in response to your administrative appeal of the Adult Panel's
March 24, 2006 determination to deny parole and refer your case to a
three member Panel to establish a parole eligibility term, which may be in
excess of established guidelines.
You contend that it was inappropriate for the Panel to make reference to a
"political formation known as the Black Liberation Army BLA)." You
specifically indicate you believe the Panel's questions about the B.L.A.
were inappropriate, as the convictions for which you are incarcerated
are not related to the politics of the B.L.A. You believe this is evidence of
bias on behalf of the Panel members. You state that when you were paroled
in 1980 there was no mention of the B.L.A. or a newspaper article, which
identified you as a member of a "formation called the New World Generals
(N.W.G.) and it's Third World Death Squad."
You indicate that the Panel cited an institutional charge, which was
based upon evidence, which you contend was also cited in a charge
for which you were found not guilty. You specifically refer to a charge
dated June 10, 2005, "Attempt at Conduct Which Disrupts." You indicate
that you were making a good adjustment to incarceration and were
receiving positive institutional reports until a specific member of the
Department of Corrections S.I.D. Unit began to unfairly target you by
identifying you as a member of the Black Liberation Army and by writing
institutional charges against you.
You indicate that during your March 24, 2006 parole hearing the Panel
members exhibited unprofessional conduct by telling jokes and laughing.
You indicate that the Panel failed to consider you for release to a halfway
house program and made a pre-determined decision to deny you parole for
political reasons. You indicate that your parole plans include a place to
reside as well as a financial base of support but that the Panel did not
seriously consider this information.
Ojor
e
Lutal
o
PN5
9860
Page
2
In regard to the Panel's notation on its Notice of Decision concerning its
determination that you have not sufficiently addressed your substance abuse
problem, you state that you once had a drug problem but have not used
drugs since 1969. You further state you have never been arrested for
possession or distribution of drugs and have never received an
institutional infraction for drugs. You also state that you have no need to
participate in Anger Management as recommended by the Panel as you
do not act out of anger, are an emotionally stable person as well as
patient and dignified.
In regard to your conviction for Armed Robbery, you contend that you
did not commit an Armed Robbery. You state that your co-defendant
testified that you did not commit an Armed Robbery. You state you defended
yourself against an accuser who engaged you in a gunfight in which he
sustained wounds. You state, contrary to the conclusion reached by the
Panel, you are not in denialand admit to all things which you have actually
done.
The issues you submitted were presented to the full Board at its meetin g,
conducted on May 24, 2006. During the consideration of your claims, the full
Board determined that the Panel appropriately considered the aggregate of all
relevant material facts pursuant to N.J.A.C. 10A: 71-3.11 and fully
documented and supported their reasons for denying parole pursuant to
N.J.A.C. 10A: 71-3.18(f). Upon review of the tape recording of your hearing,
the Board found that the Panel asked appropriate questions in a
professional manner with the intention to render a decision concerning
your ability to be released to the community and to make a successful
adjustment on parole. There is no evidence of joking, laughing or bias.
Pursuant to N.J.A.C. 10A: 71-3.11 the Board may consider any information
deemed relevant. The Board found that it was highly appropriate of the
Panel to question you about your association with any political group,
which advocates violence. The record shows that the Panel asked you
about your affiliation with the Black Liberation Army, you indicated that you
knew some of the members but that you were not a member.
In regard to the institutional infraction you received on June 10, 2005 for
"Attempt at Conduct Which Disrupts," cited by the Panel in it Notice of
Decision, the Board notes that you contend that the evidence upon which
you were found guilty of this charge is information which was also cited in
a charge of which you were found not guilty. The Board found that it
considers the adjudication of charges by the Department of Corrections
to be a matter of res judicata. Therefore the Board will not consider
your guilt or innocence of said charge but will only consider
documentation of mitigation. Upon review of the information you have
submitted, the Board concluded that you have failed to document your
contention that the Department of Corrections adjudication of the charge you
received on June 10, 2005 is based upon faulty evidence. The Board also
noted that your allegations of misconduct by a member of the
Department of Corrections S.I.D. Unit should be directed to that department.
In regard to your contention that the Panel should not have denied parole
due to your prior abuse of drugs, the Board noted that you have a
documented history of heroin use between the ages of 19 and 24. The case
summary prepared by the Board's staff dated, May 23, 2005 indicates in
addition, that you also abused cocaine, pills and cough medicine from 1959
until the time of your arrest. The Board found that you have received
no treatment for your substance abuse therefore, the Panel appropriately
cited that this problem, which was at least part of the cause of your criminal
behavior has not been sufficiently addressed. The Board noted that the
Panel made a suggestion that you participate in Anger Management to help
you prepare for future parole consideration. The Panel did not cite this as a
reason for denial nor should it be misconstrued as a pre-release condition.
Ojor
e
Lutal
o
PN5
9860
Page
3
In regard your contention that you are not guilty of Armed Robbery therefore
the Panel should not have concluded that you deny your guilt, the Board
noted that you certainly have a right to maintain your innocence in total or in
part, however, the Board must consider that the crimes for which you are
incarcerated resulted following a jury trial at which time a finding of guilt was
made. The Board is charged with the responsibility to determine your fitness
to be released on parole. Parole does not provide for a forum upon which
you may argue your innocence.
Upon review of the record, the Board found that the Panel cited as
mitigation, your participation in institutional programs specific to behavior
as well as your attempt to participate in programs in which you have yet to
be accepted. However, the Panel also considered your extensive and
repetitive criminal record which has increased in seriousness, you
are incarcerated on a multi-crime conviction, you violated parole by
committing new offenses, you
U .
64/
- • -
6 - ;
incarceration have failed to deter your criminal behavior, you have
received numerous institutional charges which have resulted in
confinement in administrative segregation as well as the loss of
commutation credits and based on your interview with the Panel, as well as
documentation in your file, the Panel concluded that you lack insight
into your criminal behavior, deny your crimes and minimize your conduct.
The Board noted that the Panel's decision is supported by a confidential
professional report, which is not supportive of your release on parole at this
time. The Board concluded that the factual evidence supporting the Panel 's
decision is overwhelming.
______
Based on a consideration of the facts cited above, the full Board has
determined that the Adult Panel has documented, by a preponderance of
evidence, that there is a substantial likelihood that you would commit a crime
if released on parole at this time. Accordingly, the full Board has elected to
affirm the Adult Panel's March 24, 2006 decision to deny parole and refer
your case to a three member Panel to establish a parole eligibility term,
which may be in excess of established guidelines.
Please note a final agency decision has now been rendered in this matter.
Sincerely,
t / 4 0 4 0
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ar
d
O
sk
ay
C
hi
ef,
A
pp
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ls
U
nit
EO
c Parole Counselor
SPB
File
Pa42
New Jersey Is An Equal Opportunity Employer
N.J. political prisoners
do hard time in solitary,
CARMINE GALASSO/THE RECORD
solitary confinement refuse to use the "cages" for recreation or meáIs
"A lot of the prisoners can't cope with the constant lockdown," said Lutalo, who is serving a 20- to
44-year sentence for a 1975
armed robbery. "They deteriorate mental
ly."
Inmates also complain that being in the MCU adds years to their sentences, since they can't hold
prison jobs or accumulate education credits they need to win early release. Ask anyone in the prison what MCU inmates do to pass the time, and the answer
See SOLITARY Page A-10 Inmates in
By Bill Sanderson Record Staff Writer
TREN TO N — Since 1986, Ojore N. Lu t a l o h a s b e e n i n s o l i t a r y c o n fi n e m e n t a t New Jersey
State Prison, locked alone his c e l l 2 2 t o 24 hou r s a d ay. H e i s n 't b e i n g treated this wa y be c ause
he broke prison rules — if he had, he would have been re t u r n e d t o t h e g e n e r a l p r i s o n
p o p u l a t i o n years ago.
Instead, in a nation that venerates fre e dom of thought, Lutalo is a political prison e r 7 o n e o f 7 7
i n m a t e s s e g r e g a t e d f r o m other convicted criminals because prison officials fear their political and
religious ideas could foment trouble.
Because Lutalo broke no rules, prison of ficials say his placement e management
control unit, or MCU, isn't punishment. But inmates say life is hard enough in New Jersey State, the
state's most dangerous and most secure prison, without enduring the MCU's enforced isolation and
idleness.
4
•cri •
;
•
•'
;
.1 'NA
THE CONTROL UNIT TREATMENT PROGRAM IS LONG —
TERM PUNISliblEi:T UNDER
FACT,
P S W D O t S C I E N T I F I C B X P E I I I E N TA T I O N
TB.BilISE OF WHAT:ISr IN
GE ONE
THURSDAY,
JUNE 11, 1992
for fear of radical ideologies
A lot of the prisoners can't cope with the constant
lockdown. They deteriorate
mentally.
pp
— Ojore N. Lutalo,
who has been in
solitary since 1986
classes and group activities among prisoners remained curtailed.
Upset about the change in conditions, about 200 inmates met in an exercise yard to consider a
protest. Though the inmates said they
Tin consensus. the meeting
led prison administrators to counter the chance of further trouble by segregating their leaders.
Alan R. Hoffman, then the superintendent of the Trenton prison, said the unit was established to
thwart a "minority of people who are going to stir the pot all the time." In October 1976, the inmates
lost a lawsuit challenging the fairness of the establishment of the unit when a federal judge said the
MCU was a legal way to keep order in the prison.
MCUs have existed at other prisons. During the 1980s, Cubans who came to the United States in the
Martel boat lift and were later convicted of crimes were placed in MCUs in Trenton, at Bayside
State State Prison in Leesburg, and at East Jersey State Prison in Woodbridge because officials
feared they planned violent demonstrations.
Other states -have similar units, said Robert B. Levinson, special projects manager for the American
Correctional Association. "This type of management of disruptive inmates is not unusual," Levinson
said.
But human rights groups are worried about the spread of "prisons within prisons" such as the
MCU. Human Rights Watch, a group that monitors prison conditions around the world, calls the
trend "Marionization," after a federal prison in Illinois where more than 300 inmates live in solitary
confinement.
Today, New Jersey's only MCU is at New Jersey State, a prison that houses 2,200 of the state's
most troublesome inmates —those with severe mental problems, the severely ill, those considered
escape risks, and those starting long prison terms. The emphasis is on security and order.
After the 1990 assaults, Beyer ordered all guards to wear riot gear when they deal with groups of inmates.
The MCU's four cellblocks are
of standard prison design: each has two levels of 12 cells, arranged in an
L shape. The cells face a
large open area with tables.
One noticeable feature is that the table area is enclosed by chain-link fencing. Beyer calls these
"multipurpose activity modules." The inmates call them cages, and they have refused to use them for
group meals or recreation, which they would be allowed one or two evenings a week.
" I t 's d e gr ad in g, " s ai d L u mumba. "It's something for dogs." So the inmates eat in their cells,
and forgo the chance to leave the cells -for socializing or playing cards or chess.
MCU inmates are allowed five hours of outdoor recreation and two visits each week. Like other
inmates, they are allowed, to have radios and TV sets in their cells; some have typewriters or personal
computers, which they use to write political pamphlets or to prepare appeals of their convictions.
Inmates say the MCU is much quieter than other prison housing. Reading is a popular pastime.
Roberts said he's had time to read books he wouldn't have gotten to outside of prison, including politi-
cal tracts by Thomas Hobbes and Adam Smith, as well as Sidney Sheldon novels. "Generally, the men
they commit to this unit have pretty good minds," he said.
The inmates' mail, magazines, and books are censored for ideas prison officials deem dangerous.
Lutalo, who does not belong to the ANU, has had copies of Soldier of Fortune magazine and books on
firearms and paramilitary training confiscated. Other censored materials seem more innocuous — such
as an ANU pamphlet _on African history, and newsletters of radical political groups.
What's wrong with segregating violent criminals on the basis of their political and religious beliefs?
"I think it is a central threat to human rights," said Bonnie Kerness, who works in the New Jersey
office of the American Friends Service Committee, the social action arm of the Quaker church. "It's
arbitrary state power, and there is nothing anybody can do about it. There is something fundamentally wrong with that."
"A good number of these guys are going to be let out, and we are going to have to deal with them,"
said Bomse. "If you treat somebody like an animal, does it surprise you that he doesn't treat people like
humans when, he gets out of prison?"
Beyer said that since the MCU curbs violence, he is not worried about the complaints of inmate
advocates. "We will keep it open and filled as long as the need is there and continues to exist," he
said. "Just like out on the street, there are a few bad apples that have to be dealt with."
JON S. CORZINE
Governor
State of New Jersey
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
ANNE MILGRA
Attorney Genera
DIVISION OF LAW
25 MARKET STREET
P O Box 112
TRENTON.
NJ 08625-0112
February 19, 2009
Joseph H. Orlando, Clerk
Superior Court
of New Jersey
Appellate
Division
Richard J. Hughes
Justice Complex
P.O. Box 006
Trenton, New Jersey 08625
Re: Ojore Lutalo v. Department
of Corrections Docket No.
A-5496-07T3
Civil Action: On Appeal from a Final
Decision of the Department of
ROBERT J. GILS
Director
Corrections
Letter Brief on Behalf 'of Respondent
Department of Corrections in Support of
Respondent's
Motion
to
Dismiss
the
Appeal for Appellant's Failure to
E x h a u s t Administrative Remedies, Pursuant
to R. 2:2-3(a) (2), and on the Merits of
the Appeal.
Dear Mr. Orlando:
Please accept this letter brief on behalf of
respondent Department of Corrections in support of
its Motion to Dismiss the Appeal for appellant's
failure to exhaust administrative remedies and on
the merits of the appeal.
HUGHES JUSTICE COMPLEX • TELEPHONE: (609) 633-7786 • FAX:(609) 777-3607
New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and
Recyclable
Notice of Classification Decision, Initial Management
Control Unit Placement, dated November 23, 2005,
with attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ra40
P
age 2 TABLE OF CONTENTS
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS
3
ARGUMENT
POINT I
LUTALO'S APPEAL SHOULD BE DISMISSED BECAUSE
HE FAILED TO EXHAUST ALL ADMINISTRATIVE
REMEDIES
AVAILABLE TO HIM ..................................... 6
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL:
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED WITH ALL DUE PROCESS
REQUIREMENTS ...............................
CONCLUSION ...................................................
20
APPENDIX
Inmate Face Sheet
..........................................
Inmate Progress Notes
......................................
Ral
Ras
Authorization for Prehearing MCU, dated July 30, 1992 .
Ra31
Memo from Donald Mee to Shift Commander,
dated October 18, 2005 ...............................
Ra32
Memo from Ronald Cathel to Ojore Lutalo,
dated October 21, 2005 • ..............................
Ra33
Request for Counsel Substitute, dated October 18, 2005
. Ra34
Notice of SS-MCU Classification Hearing ...................
Ra35
Criteria Record Sheet, dated October 17, 2005 ............. Ra36
Page 3
Notice of Classification Decision, Routine Review of
Management Control Unit Placement, dated May 29,
2008,
with attachments ..................................... Ra78
CONFIDENTIAL APPENDIX'
Psychology Department MCU Assessment,
dated October 21, 2005 ............................... Cral
Special Investigations Division Administrative Investigation,
dated August 9, 2005 ................................. Cra3
Special Investigations Division Administrative Investigation,
dated May 30, 2008 .................................. Cral2
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS2
Appellant
Ojore
incarcerated at New
Lutalo
Jersey
is
State
an
inmate
Prison
in
currently
Trenton,
New
Jersey. (Ral). He is serving a forty-eight-year, seven-month
and
thirteen
day
sentence
for
robbery,
possession
of
a
weapon for an unlawful purpose, unlawful possession of a
weapon, and two counts of aggravated assault. (Ra2). He is
appealing the final agency decision of the Department of
Corrections
rendered
on
May
29,
2008,
continuing
his
placement on the Management Control Unit ("MCU"). (Ra78).
Lutalo
readily
admits
being
associated
with
the
Black Liberation Army, the Anarchist Black Cross Foundation
and the American Friends Service Committee and identifies
himself as "a political prisoner having done nothing wrong"
despite being
'The confidential appendix is filed simultaneously with
this brief under separate cover.
2The
Procedural. History and Counterstatement of Facts
are combined for the convenience of the court as they are
substantially related.
Page 4
lawfully
convicted
of
several
crimes.
(Ra43).
An
investigation
participant
determined
in
the
that
Lutalo
has
aforementioned
been
groups,
an
active
including
recruitment and fund raising.' (Ra43, Cra3-Cral2). The these
groups' sole purpose is to overthrow legitimate governmental
agencies
through
violence.
(Ibid.)
Throughout
his
incarceration, Lutalo has received literature and materials
relative to the purchase of weapons, firearm information and
disruptive tactics such as strikes and guerilla warfare.
(Ra38, Ra43). Between February 2002. and February 2005, there
were thirty-four mailroom seizures of contraband/prohibited
material
sent to Lutalo from these groups. (Ra38). Lutalo received
approximately
$2,099.15
between
2000
and
2005
from
the
Anarchist Black Cross Federation. (Ibid.)
The investigation also determined that while Lutalo
was incarcerated at NJSP, a videotape was fraudulently made
espousing Lutalo's political views and soliciting money .
(Ra39). The money was to be sent to Bonnie Kerness, care of
American Friends Service Committee.
(Ibid.)
Ms.
Kerness
has visited Lutalo. (Ibid.) During visits she has acted
inappropriately at a window session, and notably, appeared
naked during a visit session in September
1993.
(Ibid.)
Lutalo has received monies generated by this
'Although
a
non-confidential
summary
of
this
investigation is provided at Ra38-Ra39; the court is
encouraged to review the investigation report in its
entirety as attached in the confidential appendix at
Cra3-Crall.
Page 5
videotape and from other sources through the American
Friends Service Committee. (Ibid.); In addition, Lutalo has
received
materials
violence,
contain
from
this
information
groupon
that
weapons
espouse
and
military
tactics as well as other information that could be used
during an escape. (Ibid.)
Because
of
Lutalo's
continued
involvement
with
organizations whose sole function is to disrupt legitimate
governmental agencies, on November 23, 2005, the Management
Control
Unit
Review
Committee
("MCURC")
determined
that
Lutalo should be placed in the MCU. (Ra43).
Since Lutalo's initial placement in the MCU, the MCURC
has conducted both annual and routine reviews in order to
determine whether he should remain in MCU or return to the
general population of the prison. (Ra26-Ra29). On May 29,
2008, the MCURC conducted a routine review of Lutalo's case.
(Ra78). Despite being afforded the opportunity to attend
this review hearing, Lutalo refused to attend the hearing.
(Ibid.) The MCURC determined that Lutalo should remain in
the MCU. (Ibid.)
In
rendering
its
decision.,
the
MCURC
considered
the
documents concerning Lutalo's initial placement in the MCU,
his
disciplinary
reports,
services,
medical
housing
reports.
and
program
participation,
psychological
(Ibid.)
In
social
interview,
addition,
the
and
MCURC
considered Lutalo's compliance with the revised MCU placement
phases. (Ibid.) After considering all the evidence,
Pa
ge 6 the MCURC determined that Lutalo remains a threat to
the safe,
secure and orderly operation of New Jersey State Prison,
and therefore, he should remain in the MCU. (Ibid.)
Not only did Lutalo refuse to attend his May 29, 2008
MCU r o u t i n e
review
hearing,
Lutalo
also
failed
to
f i l e a n administrative appeal of that decision.
On July 18, 2008, Lutalo filed an appeal directly with
this court.
ARGUMENT
POINT I
LUTALO'S
APPEAL
SHOULD
BE
DISMISSED
BECAUSE
HE
FAILED
TO
EXHAUST
ALL
ADMINISTRATIVE REMEDIES AVAILABLE TO HIM
The exhaustion of administrative remedies requirement of
R.
2:2-3(a) (2) precludes appeals to this court as long as
there
remains
"available
a
right
of
review
before
the
administrative agency."
Before
an
Division, he
Administrator
inmate
has
or
files
the
option
constitutes
necessary
for
an
appeal
of
with
the
requesting
Appellate
the
prison
designee to review the decision of the
MCURC pursuant to N.J.A.C.
appeal
an
the
10A:5-2.7. Such an administrative
final
inmate
to
agency
exhaust
decision
his
which
is
administrative
remedies. Trantino v. New Jersey State Parole Bd., 154 N.J.
19, 29 (1998) (noting that because an administrative appeal
of a parole hearing had been pending before the Board, this
Page 7
court
had
dismissed
Trantino's
appeal
so
that
he
could
first "exhaust his administrative remedies").
Here, Lutalo did not appeal the MCURC's May 29, 2008,
decision continuing his placement in the MCU. (Ra78).
Instead,
he
immediately filed an appeal to this court.
Since Lutalo failed to administratively appeal the' MCURC's
decision to continue his placement in the MCU to the prison
administrator, there is no final agency decision for this
court to consider.
Lutalo
appeal
to
now
the
claims
that
he
Commissioner,
but
filed
an
offers,
administrative
no
evidence
to
support his claim. (Ab1). He supplies no date .of service
and no copy of any such appeal. Furthermore, an appeal to
the Commissioner is not an administrative appeal pursuant to
N.J.A.C. 10A:5-2.7,because such an appeal is to be sent to
the
prison
Administrator.
Therefore,
by
appellant's
own
admission, he failed to properly exhaust his administrative
remedies by filing an appeal with the Administrator of New
Jersey State Prison.
Because there is no final agency decision from which
Lutalo can appeal, his appeal should be dismissed for failure
to exhaust his administrative remedies.
Page 8
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD, BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL
UNIT
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED
WITH
ALL
DUE
PROCESS
REQUIREMENTS
The MCURC's May 29, 2008, decision that Lutalo should
remain in the MCU is supported by substantial, credible
evidence and should be affirmed.' Lutalo claims that the
Department's decision was based on disciplinary charges that
were
dismissed
or
downgraded
and
on
Lutalo's
political
beliefs, and therefore, he should be released from the MCU.
These arguments are without merit because the Department's
decision was supported by substantial credible evidence and
comported with due process requirements.
Only
where
an
agency's
decision
is
arbitrary
or
capricious or unsupported by credible evidence in the record
may it be reversed. Henry v. Rahway State Prison, 81 N.J.
571, 579 (1980). Unless a
action
was
arbitrary,
court finds that the agency's
capricious,
or
unreasonable,
agency's ruling should not-be disturbed. In re
N.J.
644,
657
(1999);
Barone
v.
Department
the
Taylor, 158
of
Human
Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd,
107 N.J. 355 (1987).
'Although
Appellant
addresses
several
previous
decisions by the MCURC in his brief, the only decision before
the court is the May 29, 2008 decision, and for that reason,
Respondent shall limit its discussion to that decision.
Page 9
As explained in In re Application of Hackensack Water
Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial
evidence
is
"such
evidence
as
a
reasonable
mind
might
accept as adequate to support a conclusion." See also In re
Public Service Elec. & Gas, 35 N.J. 358, 376 (1961); Mead
Johnson & Co. v. Borough of South Plainfield,
Super.
455,
466
(App.
Div.
1967).
The
95
N.J.
substantial
evidence standard permits an agency to apply its expertise
where the evidence supports more than one conclusion. "Where
there is substantial evidence in the record to support more
than one regulatory conclusion, 'it is the agency's choice
which
governs.'"
In
re
Vineland
Chemical
Co.,
243
N.J.
Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323
(1990) (quoting De Vitis
v. New Jersey Racing Comm'n, 202 N.J.
Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337
:(1985)).
In this case there was substantial, credible evidence
to support the MCURC's conclusion. Pursuant to N.J.A.C.
10A:5-2.10(e), at each review, the MCURC shall again
review the information upon which the decision was based to
assign
the
inmate
to
the
MCU.
Such
information
include:
1.
Disciplinary reports;
2.
Program participation such as, but
not
limited
to,
education,
counseling
and
recreation
shall
activities;
3.
Records of the inmate's behavior
and attitude while in the Unit such
as, custody and professional staff
reports
which
must
periodically
be
filed
.256, refusing to obey an order of any staff member.
(Ibid.) In
Page 10
describing pertinent observations,
both positive and negative, of the
inmate's behavior and attitude while
in the MCU.
The MCURC considered Lutalo's disciplinary history. In
his
brief,
Lutalo
states
that
he'has
a
"nearly
perfect
disciplinary record during his nearly [twenty-five] years
of confinement." (Ab2). However, the record is clear that
while in both the MCU and general population at New Jersey
State
Prison,
Lutalo
has
committed
multiple
disciplinary
infractions, some of which were serious offenses, denoted
by an asterisk.
In
May
1990,
Lutalo
was
adjudicated
guilty
of
.210,
possession of anything not authorized for retention or receipt
by
an
inmate.
adjudicated
(Ball).
guilty
of
In
.210
August
1991,
possession
of
he
was
twice
anything
not
authorized for retention or receipt by an i nma te. (Ra1 2) .
In Se pte mb er 1 991 , Lut al o wa s a ga in adjudicated guilty
of .210, possession of anything not authorized for retention
or receipt by an inmate. (Ibid.) In October 1991, he was
adjudicated guilty of *.202, possession or introduction of a
weapon,
such
as,
but
not
limited
to,
a
sharpened
instrument,
knife or unauthorized tool.
(Ibid.)
In November 1991, he was
again adjudicated guilty of .210, possession of anything
not
authorized for retention or receipt by an inmate.
(Ra13)
.
In
November 1993, Lutalo was adjudicated guilty of *.002,
assaulting
any person.
January
(Ibid.)
1999,
he
In November 1995, he was found guilty of
Page 11
was
adjudicated
guilty
of
*.803,
attempting to commit an infraction. (Ibid.) In April 1999,
he was adjudicated guilty of .210, possession of anything not
authorized for retention or receipt by an inmate. (Ra14,
Ra84). In November 2000, he was again found guilty of a .210
violation.
(Ibid.)
In
November
2005,
he
was
adjudicated
guilty of .705, commencing or operating a business or group
for
profit
enterprise
or
commencing
without
the
or
approval
operating
of
the
a
nonprofit
Superintendent.
(Ibid.)
Lutalo's disciplinary history exhibits a long pattern
of disobeying the rules, even while he was assigned to the
MCU. He even committed an assault while in the MCU, and
continued to disregard authority by refusing to obey orders
and
attempting
occasions.
to
possess
(Ra13).
contraband
These
items
infractions
on
multiple
demonstrate
an
attitude which shows an inability to follow the rules and an
inability to house with other inmates in a nondisruptive and
nondestructive manner.
Lutalo
claims
that
the
Department
should
not
have
considered disciplinary infractions from July and September
2005, which were eventually reversed by this court and removed
from Lutalo's record. (Ab4-Ab6). This argument fails for two
reasons.
First,
while
the
MCURC
did
consider
Lutalo's:
disciplinary record during their routine review of his MCU
placement on May 29, 2008, the disputed charges were not part
of that record because they were previously
Page 12
expunged
and
were
therefore
not
considered.
(Rall-Ra14).
Second, although the aforementioned disciplinary charges that
were reversed and expunged from Lutalo's disciplinary record,
Lutalo nevertheless participated in the fraudulent making of
a video espousing his political views and soliciting funds,
and receipt of deposits to his prison account. Therefore, the
MCURC was entirely correct in considering Lutalo's prison
behavior
contained
confidential
in
Special
the
criteria
Investigation
record
sheet
Division
and
reports
regarding his fraudulently making a video and soliciting
funds.
The MCURC also considered the reports concerning
Lutalo's •
housing, work and program assignments.
"the
highest
available
and
to
a
characterization
most
New
is
Lutalo claims he holds
satisfactory
Jersey
belied
by
behavioral
prisoner;"
the
record.
rating
however,
(Ab2,
this
Ra80).
Lutalo's adjustment to the MCU unit is labeled as "good."
However, this does not negate his inability to follow the
rules and obey orders and does not mean that he should be
placed in general population. (Ra80). In addition, Lutalo
has not yet participated in any of the programming required
for consideration of release from the MCU, such as,
behavior
modification or anger management. (Ra78, Ra80).
Nor has Lutalo participated in psychological or individual
counseling
or
cognitive
behavior
strategies.
(Ra80).
Furthermore, Lutalo has continued to
refuse to attend his routine review hearings.
(Ibid.) Clearly,
Pag
e 13 Lutalo has not done everything possible to advance out of
the MCU,
and there remain steps Lutalo can take to demonstrate his
efforts
towards positive adjustment.
Pursuant to N.J.A.C. 10A:5-2.10(f),
An inmate shall be released from the MCU
when, in the opinion of the MCURC, the
inmate no longer poses a substantial
threat:
1.
2.
To the safety of others;
Of damage to or destruction of
3.
After
properly
property; Or,
Of interrupting the operation of a
State correctional facility.
considering the above factors, the
concluded
that
there
was
substantial
MCURC
credible
evidence that, if placed in the general population, Lutalo
would pose a substantial threat to the safety of others, and
would
interrupt
correctional
the
facility.
safe
and
Lutalo
secure
claims
operation
that
of
the
the
MCURC's
decision was improper because it did not rely on any current
information
regarding
his
behavior.
This
argument
fails
because the MCURC properly considered Lutalo's history and
behavior as an inmate. His radical views and ability to
influence other inmates support the MCURC's decision.
Throughout his brief, Lutalo, continually refers to
his
placement
"administrative
in
the
MCU
segregation."
as;
This
a
is
placement
an
in
incorrect
statement. Placement in the MCU does not occur as a result
of punitive measures. The MCU is
Page 14
a close custody unit to which an inmate
may be assigned if the inmate poses a
substantial threat to the safety of
others; of damage to or destruction of
property;
or
of
interrupting
th e
ope ra tio n o f a St at e co rr e cti on al
facility.
[N.J.A.C. 10A:5-1.3].
In contrast, administrative segregation refers to "removal
of an inmate from the general popul4tion of a correctional
facility to a c l o s e
more
custody
disciplinary
unit
infractions."
because
(Ibid.)
one
In
or
Lutalo's
case, the MCURC has determined, pursuant to N.J.A.C. 10A:52.5(a), to continue his placement in the MCU in order to
insure the safety and security of the correctional facility
and not to punish Lutalo.
Therefore, Lutalo's arguments that he should be removed
from the MCU because he can only be held in administrative
segregation following due processes that he did not receive
are without merit,
because
Lutalo
is
not
being
held
in
administrative segregation. (Ab13-Ab19).
Lutalo
Liberation
argues
that
Organization
his
and
membership
the
in
Anarchist
the
Black
Black
Cross
Foundation and his possession of materials related to these
groups can not be the basis for his placement in the MCU.'
(Ab20-Ab29). Lutalo relies
'In support of this argument, appellant relies on
previous decisions by the MCURC which are not the subject of
this appeal. Appellant is appealing the MCURC's May 29, 2008
decision
on
their
routine
review
of
appellant's.MCU
placement. Therefore, the court should disregard appellant's
references to any previous decisions by the MCURC.
Page 15
heavily upon on Balagun v. New Jersey Department of
Corrections, 361 N.J. Super. 199, 203 (App. Div. 2003). In
Balaqun, the Hearing Officer relied on the conclusions of a
senior investigating officer in finding an inmate guilty of
disciplinary infractions. The court held that the Hearing
Officer
failed
to
adequately
explain
his
decision
and
stated that "while an administrative decision is entitled to
deference, we will not perfunctorily review and rubber stamp
the agency's decision." Balaqun, supra, 361 N.J. Super. at
203-04.
In
this
matter,
the
MCURC
did
not
rely
solely
on
Lutalo's political affiliations with anti-government groups,
but rather the threatening and disruptive behavior in which
he
engaged
in
furtherance
of
the
views
of
these
organizations, as well as Lutalo's failure to complete any
of
the
necessary
programs
required
for
consideration
of
release from the MCU. (Ra78). The reports of the Special
Investigation Division which describe Lutalo as an active
participant with the Black Liberation Army, the Anarchist
Black
Cross
Committee
Foundation
and
detail
and
his
the
American
activities
Friends
Service
these
subserve
with
groups. (Ra78, Cra3- Cral3). In fact, these reports directly
refute
Lutalo's
claims
that
he
has
not
"proselytize" or "advocate" membership in
attempted
these
groups
to
to
fellow inmates. (Ab29, Cra3-Cra13).
Lutalo remained engaged in recruitment and fund raising
for these anti-government organizations, whose sole purpose
is to
Page 16
overthrow
legitimate
governmental
agencies
through
violence.
(Cra3-Cral3).
Throughout
his
incarceration,
Lutalo has received literature and materials relative to
the
purchase
of
weapons,
firearm
information
and
disruptive, tactics such as strikes and guerilla warfare
that could be used during an escape. (Ibid.) Moreover, the
investigation
also
incarcerated
making
a
at
video
determined
NJSP,
he
inciting
that
while
participated
violence
and
Lutalo
in
was
fraudulently
soliciting
money.
(Ibid.)
Accordingly,
the
MCRUC
was
appropriately
concerned
by
Lutalo's admitted allegiance to the Black Liberation Army and
the
Anarchist
Black
groups,
resulting
safety
and
incite
violence.
Cross
in
Foundation,
behaviors
security
of
the
Therefore,
which
and
other
threatened
correctional
the
similar
MCURC
facility
has
the
and
properly
continued Lutalo's placement in the MCU.
Lutalo also appears to argue that the MCURC's reliance
upon the material and/or writings to or from
the anti-
government organizations of which Lutalo is a member was
unconstitutional. (Ab28). In support of this argument, Lutalo
relies upon Procunier v.
overruled by Thornburgh v.
Procunier,
the
Court
Martinez,
416
U.S.
396
(1974),
Abbott, 490 U.S. 401 (1989). In
found
unconstitutional
prison
regulations, which "barred writings that `unduly complain'
or
'magnify
grievances,'
express
'inflammatory
Political,
racial, religious pr other views,' or are 'defamatory' or
'otherwise
inappropriate."'
Procunier,
supra,
416
U.S.
at
415.
Page 17
Those regulations "invited prison officials and employees to
apply
t h ei r o wn pe rs on a l p re ju d ic es a n d o pi ni o ns a s s ta n da rd s
for
prisoner mail censorship." Ibid.
Conversely, in Thornburgh, the Court upheld as
constitutional
prison
regulations,
which
"generally
permit[ted]
an
inmate to subscribe to, or to receive, a publication without
prior
approval,
publication
but
...
authorize[d]
'if
it
is
the
warden
determined
to
reject
detrimental
a
to
the:security, good order, or discipline of the institution or
if it might facilitate criminal activity.'" T h o r n b u r g h , s u p r a ,
4 9 0 U . S . a t 4 1 9 . I n d o i n g s o , t h e C o u r t recognized that
the
constitutional
exercised
with
rights
due
of
prison
regard
for
inmates
the
"must
be
'inordinately
difficult undertaking' that is modern prison administration.'"
Id. at 419,
q u ot i ng
C o ur t
T ur ne r
v.
explained
S af le y ,
that
482
"[p]rison
U.S.
78,
85
officials
(1 9 87 ) .
may
T he
conclude
that certain proposed interactions [between outside people
and/organizations
with
inmates],
though
seemingly
innocuous
to
laymen,
have
potentially
significant
implications for the order and security of
the prison."
Thornburgh, supra, 490 U.S. at 407.
The Court
further acknowledged that "the judiciary is 'ill equipped' to
deal
with the difficult and delicate problems of prison management"
and
that the Court "has afforded considerable deference to
the
determinations of prison administrators who, in the interest of
Page 18
security, regulate the relations between prisoners and the
outside world." Id. at 407-08, citing Turner, supra, 482
U.S. at 404-05.
As articulated in Thornburgh, the MCURC determined that
the
material
Lutalo
received
from
the
anti-government
organizations to which he is a member are inappropriate and
not authorized for retention on "the basis of their potential
implications for prison security." Id. at 416. Throughout
his
incarceration,
materials
relative
Lutalo
has
to
purchase
the
received
of
literature
weapons,
and
firearm
information and disruptive tactics such as strikes and guerilla
warfare, all of which could be used to as an attempt to
escape and/or to jeopardize the safety and security of the
prison.
(Cra3-Cral2).
Accordingly,
the
MCURC
rightly
considered the nature of the materials possessed by Lutalo in
determining the appropriateness of continuing his placement
in the MCU.
Finally,
liberty
an
inmate
interest
in
has
no
remaining
constitutional
in
any
protected
particular
custody
status, and therefore, no due process rights regarding his
placement
in
restrictive
custody
as
long
as
that
custody is within the parameters of his sentence. Sandin v.
Conner, 515 U.S. 472 (1995); White v. Fauver, 219 N.J. Super.
170
(App.
Div.
1987).
Instead,
Lutalo
has
limited
due
process rights granted to him by the regulations contained
in the New Jersey Administrative Code. See Layton v. Beyer,
953 F.3d 539 (3rd Cir. 1992). Those rights are limited to
the scope of rights granted by regulation.
Page 19
The
contained
applicable
at
regulations
N.J.A.C.
for
10A:5-2.10,
MCURC
et
hearings
seq.
Pursuant
are
to
N.J.A.C. 10A:5-2.10(a), an inmate placed in the MCU must be
reviewed every three months. In this case, the MCURC had
previously reviewed Lutalo's case on March 5, 2008, and
scheduled
the'
next
hearing
for
May
2008.
(Ra29).
Therefore, he was routinely reviewed. A written record of the
proceedings was maintained by the MCU pursuant to N.J.A.C.
10A:5-2.10(b).
In
addition,
Lutalo
was
afforded
the
opportunity to appear and make a statement on his own behalf
although he declined to do so, pursuant to N.J.A.C. 10A:52.10(c).
(Ra78).
As for the remaining requirements of this Code section,
the MCURC properly considered Lutalo's records pursuant to
N.J.A.C.
10A:5-2.10(e), as discussed above. Thus, Lutalo
received all the process due to him.
Pag
e 20 CONCLUSION
For
dismissed
the
reasons
because
administrative
Department's
stated
appellant
remedies,
final
agency
or
above,
the
failed
in
the
decision
to
appeal
to
should
be
exhaust
his
alternative,
the
continue
Lutalo's
placement in the MCU should be affirmed.
Respectfully submitted,
ANNE MILGRAM
ATTORNEY GENERAL OF NEW
JERSEY
B
4Air
Su n
S • t
Deputy Attorney General cspmail@dol.lps.state.nj.us
Melissa H. Raksa
Assistant Attorney General
Of Counsel
c: Ojore Lutalo, #59860/901548, New Jersey State Prison
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Respondent
Letter
Department
Brief
of
and
Appendix
Corrections
op
in
Respondent's Motion to Dismiss the Appeal
Behalf
Support
for
of
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10 Braeburn
Drive
Princeton, New Jersey 08540
V))M atk ,
Burnette
D. Bussey
1-
Dated:
,
February 20, 2009
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5)
copies
Respondent
of
a
Letter
Department
Brief
of
and
Appendix
Corrections
Respondent's Motion to Dismiss the Appeal
on Behalf
of
Support
of
in
for
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10
Braeburn Drive
Princeton, New Jersey 08540
Burnette D. Bussey
Dated:
February 20, 2009
JON S. CORZINE
Governor
State of New Jersey
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
ANNE MILGRAM
Attorney Genera
DIVISION OF LAW
25
MARKET STREET
P O Box 112
TRENTON, NJ 08625-0112
February 19, 2009
Joseph H. Orlando, Clerk
Superior Court
of New Jersey
Appellate
Division
Richard J. Hughes
Justice Complex
P.O. Box 006
Trenton, New Jersey 08625
Re: Ojore Lutalo v. Department
of Corrections Docket No.
A-5496-07T3
Civil Action: On Appeal from a Final
Decision of the Department of
Corrections
ROBERT J. GILSO
Director
Letter Brief on Behalf 'of Respondent
Department of Corrections in Support of
Respondent's
Motion
to
Dismiss
the
Appeal for Appellant's Failure to
E x h a u s t Administrative Remedies, Pursuant
to R. 2:2-3(a) (2), and on the Merits of
the Appeal.
Dear Mr. Orlando:
Please accept this letter brief on behalf of
respondent Department of Corrections in support of
its Motion to Dismiss the Appeal for appellant's
failure to exhaust administrative remedies and on
the merits of the appeal.
HUGHES .JUSTICE COMPLEX • TELEPHONE: (609) 633 -7786 • FAY : (60 9) 777 -3607
New Jersey Ls. An Equal Opportunity Employer Printed on Recycled Paper and Recyclable
Notice of Classification Decision, Initial Management
Control Unit Placement, dated November 23, 2005,
with attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ra40
P
age 2 TABLE OF CONTENTS
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS
3
ARGUMENT
POINT I
LUTALO'S APPEAL SHOULD BE DISMISSED
BECAUSE HE FAILED TO EXHAUST ALL
ADMINISTRATIVE REMEDIES
AVAILABLE TO HIM ..................................... 6
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL:
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED WITH ALL DUE PROCESS
REQUIREMENTS ....................................... 8
CONCLUSION ................................................... 20
APPENDIX
Inmate Face Sheet
.......................................... Ral
Inmate Progress Notes
...................................... Ra5
Authorization for Prehearing MCU, dated July 30, 1992 .
. Ra31
Memo from Donald Mee to Shift Commander,
dated October 18, 2005 ............................... Ra32
Memo from Ronald Cathel to Ojore Lutalo,
dated October 21, 2005 . .............................. Ra33
Request for Counsel Substitute, dated October 18, 2005
. Ra34
Notice of SS-MCU Classification Hearing ................... Ra35
Criteria Record Sheet, dated October 17, 2005 ............. Ra36
Page 3
Notice of Classification Decision, Routine Review of
Management Control Unit Placement, dated May 29,
2008,
with attachments ..................................... Ra78
CONFIDENTIAL APPENDIX'
Psychology Department MCU Assessment,
dated October 21, 2005 ............................... Cral
Special Investigations Division Administrative Investigation,
dated August 9, 2005 ................................. Cra3
Special Investigations Division Administrative Investigation,
dated May 30, 2008 .................................. Cral2
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS2
Appellant
Ojore
Lutalo
is
an
inmate
currently
incarcerated at New
Jersey
State
Prison
in
Trenton,
New
Jersey. (Ral). He is serving a forty-eight-year, seven-month
and
thirteen
day
sentence
for
robbery,
possession
of
a
weapon for an unlawful purpose, unlawful possession of a
weapon, and two counts of aggravated assault. (Ra2). He is
appealing the final agency decision of the Department of
Corrections
rendered
on
May
29,
2008,
continuing
his
placement on the Management Control Unit ("MCU"). (Ra78).
Lutalo
readily
admits
being
associated
with
the
Black Liberation Army, the Anarchist Black Cross Foundation
and the American Friends Service Committee and identifies
himself as "a political prisoner having done nothing wrong"
despite being
'The confidential appendix is filed simultaneously with
this brief under separate cover.
'The Procedural History'and Counterstatement of Facts
are combined for the convenience of the court as they are
substantially related.
Page 4
lawfully
convicted
of
several
crimes.
(Ra43).
An
investigation
participant
determined
in
the
that
Lutalo
has
aforementioned
been
groups,
an
active
including
recruitment and fund raising.' (Ra43, Cra3-Cral2). The these
groups' sole purpose is to overthrow legitimate governmental
agencies
through
violence.
(Ibid.)
Throughout
his
incarceration, Lutalo has received literature and materials
relative to the purchase of weapons, firearm information and
disruptive tactics such as strikes and guerilla warfare.
(Ra38, Ra43). Between February 2002 and February 2005, there
were thirty-four mailroom seizures of contraband/prohibited
material
sent to Lutalo from these groups.
approximately
$2,099.15
between
(Ra38).
2000
and
Lutalo received
2005
from
the
Anarchist
Black Cross Federation.
(Ibid.)
The investigation also determined that while Lutalo
was incarcerated at NJSP, a videotape was fraudulently made
espousing Lutalo's political views and soliciting money .
(Ra39). The money was to be sent to Bonnie Kerness, care of
American Friends Service Committee.
(Ibid.)
Ms.
Kerness
has visited Lutalo. (Ibid.) During visits she has acted
inappropriately at a window session, and notably, appeared
naked during a visit session in September
1993.
(Ibid.)
Lutalo has received monies generated by this
'Although
a
non-confidential
summary
of
this
investigation is provided at Ra38-Ra39; the court is
encouraged to review the investigation report in its
entirety as attached in the confidential appendix at
Cra3-Crall.
Page 5
videotape
and
from
other
sources
through
the
American
Friends Service Committee. (Ibid.) , In addition, Lutalo
has received materials
violence,
contain
from
this
information
on
group-
that
espouse
and
military
weapons
tactics as well as other information that could be used
during an escape. (Ibid.)
Because
of
Lutalo's
continued
involvement
with
organizations whose sole function is to disrupt legitimate
governmental agencies, on November 23, 2005, the Management
Control
Unit
Review
Committee
("MCURC")
determined
that
Lutalo should be placed in the MCU. (Ra43).
Since Lutalo's initial placement in the MCU, the MCURC
has conducted both annual and routine reviews in order to
determine whether he should remain in MCU or return to the
general population of the prison. (Ra26-Ra29). On May 29,
2008, the MCURC conducted a routine review of Lutalo's case.
(Ra78). Despite being afforded the opportunity to attend
this review hearing, Lutalo refused to attend the hearing. (Ibid.)The MCUR
should remain in the MCU.
(Ibid.)
In rendering its decision, the
MCURC
considered
the
documents concerning Lutalo's initial placement in the MCU,
his
disciplinary
reports,
services,
medical
housing
reports.
and
program
participation,
psychological
(Ibid.)
In
social
interview,
addition,
the
and
MCURC
considered Lutalo's compliance with the revised MCU placement
phases. (Ibid.) After considering all the evidence,
Pa
ge 6 the MCURC determined that Lutalo remains a threat to
the safe,
secure and orderly operation of New Jersey State Prison,
and therefore, he should remain in the MCU. (Ibid.)
Not only did Lutalo refuse to attend his May 29, 2008
MCU r o u t i n e r e v i e w h e a r i n g , L u t a l o a l s o f a i l e d t o
file an
administrative appeal of that decision.
On July 18, 2008, Lutalo filed an appeal directly with
this
court.
ARGU
MENT
POINT
I
LUTALO'S
APPEAL
SHOULD
BE
DISMISSED
BECAUSE
HE
FAILED
TO
EXHAUST
ALL
ADMINISTRATIVE REMEDIES AVAILABLE TO HIM
The exhaustion of administrative remedies requirement of
R. 2:2-3(a) (2) precludes appeals to this court as long as
there
remains
"available
a
right
of
review
before
the
administrative agency."
Before
an
Division, he
Administrator
inmate
has
or
files
the
option
constitutes
necessary
for
an
appeal
of
with
the
requesting
Appellate
the
prison
designee to review the decision of the
MCURC pursuant to N.J.A.C.
appeal
an
the
10A:5-2.7. Such an administrative
final
inmate
to
agency
exhaust
decision
his
which
is
administrative
remedies. Trantino v. New Jersey State Parole Bd., 154 N.J.
19, 29 (1998) (noting that because an administrative appeal
of a parole hearing had been pending before the Board, this
Page 7
court
had
dismissed
Trantino's
appeal
so
that
he
could
first "exhaust his administrative remedies").
Here, Lutalo did not appeal the MCURC's May 29, 2008,
decision continuing his placement in the MCU. (Ra78).
Instead,
he
immediately filed an appeal to this court.
Since Lutalo failed to administratively appeal the' MCURC's
decision to continue his placement in the MCU to the prison
administrator, there is no final agency decision for this
court to consider.
Lutalo
appeal
to
now
the
claims
that
he
Commissioner,
but
filed
an
offers,
administrative
no
evidence
to
support his claim. (Abl). He supplies no date .of service
and no copy of any such appeal. Furthermore, an appeal to
the Commissioner is not an administrative appeal pursuant to
N.J.A.C. 10A:5-2.7,because such an appeal is to be sent to
the
prison
Administrator.
Therefore,
by
appellant's
own
admission, he failed to properly exhaust his administrative
remedies by filing an appeal with the Administrator of New
Jersey State Prison.
Because there is no final agency decision from which
Lutalo can appeal, his appeal should be dismissed for failure
to exhaust his administrative remedies.
Page 8
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL
UNIT
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED
WITH
ALL
DUE
PROCESS
REQUIREMENTS
The MCURC's May 29, 2008, decision that Lutalo should
remain in the MCU is supported by substantial, credible
evidence and should be affirmed.' Lutalo claims that the
Department's decision was based on disciplinary charges that
were
dismissed
or
downgraded
and
on
Lutalo's
political
beliefs, and therefore, he should be released from the MCU.
These arguments are without merit because the Department's
decision was supported by substantial credible evidence and
comported with due process requirements.
Only
where
an
agency's
decision
is
arbitrary
or
capricious or unsupported by credible evidence in the record
may it be reversed. Henry v. Rahway State Prison 81 N.J.
571,
579
(1980).
Unless
a
court
finds
that
the
agency's'action was arbitrary, capricious, or unreasonable,
the agency's ruling should not be disturbed. In re
Taylor,
158 N.J. 644, 657 (1999); Barone v. Department of Human
Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd,
107 N.J. 355 (1987).
'Although
Appellant
addresses
several
previous
decisions by the MCURC in his brief, the only decision before
the court is the May 29, 2008 decision, and for that reason,
Respondent shall limit its discussion to that decision.
Pa
ge 9 As explained in In re Application of Hackensack
Water Co., 41
N.J. Super. 408, 418 (App. Div. 1956), substantial evidence
is "such evidence as a reasonable mind might accept as
adequate to
support a conclusion." See also In re Public Service Elec. &
Gas, 35 N.J. 358, 376 (1961) ; Mead Johnson & Co. v. Borough
of South Plainfield, 95 N.J. Super. 455, 466 (App. Div.
1967).
The
substantial evidence standard permits an agency to apply
its expertise where the evidence supports more than one
conclusion. "Where there is substantial evidence in the record
to support more than one regulatory conclusion, 'it is the
agency's choice which governs.'" In re Vineland Chemical
Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127
N.J. 323 (1990) (quoting De Vitis
v. New Jersey Racing Comm'n,
202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102
N.J. 337 :(1985)).
In this case there was substantial, credible evidence
to support the MCURC's conclusion. Pursuant to N.J.A.C.
10A:5-2.10(e), at each review, the MCURC shall again
review the information upon which the decision was based to
assign
the
inmate
to
the
MCU.
Such
information
shall
include:
1.
2.
Disciplinary reports;
Program participation such as, but
not
limited
to,
education,
counseling
and
recreation
activities;
3.
Records of the inmate's behavior
and attitude while in the Unit such
as, custody and professional staff
reports
which
must
periodically
be
filed
Page 10
describing pertinent observations,
both positive and negative, of the
inmate's behavior and attitude while
in the MCU.
The MCURC considered Lutalo's disciplinary history. In
his brief, Lutalo states that he' has a "nearly perfect
disciplinary record during his nearly [twenty-five] years
of confinement." (Ab2). However, the record is clear that
while in both the MCU and general population at New Jersey
State
Prison,
Lutalo
has
committed
multiple
disciplinary
infractions, some of which were serious offenses, denoted
by an asterisk.
In
May
1990,
Lutalo
was
adjudicated
guilty
of
.210,
possession of anything not authorized for retention or receipt
by
an
inmate.
adjudicated
(Rail).
guilty
of
In
.210
August
1991,
possession
of
he
was
twice
anything
not
authorized for retention or receipt by an inma te. (Ra1 2) .
In Se pte mb er 1 991 , Lut al o wa s a ga in adjudicated guilty
of .210, possession of anything not authorized for retention
or receipt by an inmate. (Ibid.) In October 1991, he was
adjudicated guilty of *.202, possession or introduction of a
weapon,
such
as,
but
not
limited
to,
a
sharpened
instrument,
knife or unauthorized tool.
(Ibid.)
In November 1991, he was
again adjudicated guilty of' .210, possession of anything
not
authorized for retention or receipt by an inmate.
(Ra13)
.
In
November 1993, Lutalo was adjudicated guilty of *.002,
assaulting
any person.
(Ibid.)
In November 1995, he was found guilty of
.256, refusing to obey an order of any staff member.
(Ibid.) In
Page 11
January
1999,
he
was
adjudicated
guilty
of
*.803,
attempting to commit an infraction. (Ibid.) In April 1999,
he was adjudicated guilty of .210, possession of anything not
authorized for retention or receipt by an inmate. (Ra14,
Ra84). In November 2000, he was again found guilty of a .210
violation.
(Ibid.)
In
November
2005,
he
was
adjudicated
guilty of .705, commencing or operating a business or group
for
profit
enterprise
or
commencing
without
the
or
approval
operating
of
the
a
nonprofit
Superintendent.
(Ibid.)
Lutalo's disciplinary history exhibits a long pattern
of disobeying the rules, even while he was assigned to the
MCU. He even committed an assault while in the MCU, and
continued to disregard authority by refusing to obey orders
and
attempting
occasions.
to
possess
(Ra13).
contraband
These
items
infractions
on
multiple
demonstrate
an
attitude which shows an inability to follow the rules and an
inability to house with other inmates in a nondisruptive and
nondestructive manner.
Lutalo
claims
that
the
Department
should
not
have
considered disciplinary infractions from July and September
2005, which were eventually reversed by this court and removed
from Lutalo's record. (Ab4-Ab6). This argument fails for two
reasons.
First,
while
the
MCURC
did
consider
Lutalo'g
disciplinary record during their routine review of his MCU
placement on May 29, 2008, the disputed charges were not part
of that record because they were previously
Page 12
expunged
and
were
therefore
not
considered.
(Rall-Ra14).
Second, although the aforementioned disciplinary charges that
were reversed and expunged from Lutalo's disciplinary record,
Lutalo nevertheless participated in the fraudulent making of
a video espousing his political views and soliciting funds.,
and receipt of deposits to his prison account. Therefore, the
MCURC was entirely correct in considering Lutalo's prison
behavior
contained
confidential
in
Special
the
criteria
record
Investigation
sheet
Division
and
reports
regarding his fraudulently making a video and soliciting
funds.
The
Lutalo's
claims
MCURC
also
housing,
he
behavioral
holds
rating
considered
work
and
"the
the
program
highest
available
to
reports
assignments.
and
a
concerning
New
most
Lutalo
satisfactory
Jersey
prisoner;"
however, this characterization is belied by
the record. (Ab2, Ra80). Lutalo's adjustment to the MCU
unit is labeled as "good." However, this does not negate his
inability to follow the rules and obey orders and does not
mean that he should be placed in general population. (Ra80).
In addition, Lutalo has not yet participated in any of the
programming required for consideration of release from
the
MCU,
management.
such
(Ra78,
as,
behavior
Ra80).
Nor
has
modification
Lutalo
or
anger
participated in
psychological or individual counseling or cognitive behavior
strategies. (Ra80). Furthermore, Lutalo has continued to
refuse to attend his routine review hearings.
(Ibid.) Clearly,
Page 13
Lutalo has not done everything possible to advance out of the
MCU, and there remain steps Lutalo can take to demonstrate
his efforts towards positive adjustment.
Pursuant to N.J.A.C. 10A:5-2.10(f),
An inmate shall be released from the MCU
when, in the opinion of the MCURC, the
inmate no longer poses a substantial
threat:
1.
2.
To the safety of others;
Of damage to or destruction of
property; or,
3.
Of interrupting the operation of a
State correctional facility.
After considering the above factors, the
properly
concluded
that
there
was
substantial
MCURC
credible
evidence that, if placed in the general population, Lutalo
would pose a substantial threat to the safety of others, and
would
interrupt
correctional
the
facility.
safe
and
Lutalo
secure
claims
operation
that
of
the
the
MCURC's
decision was improper because it did not rely on any current
information
regarding
his
behavior.
This
argument
fails
because the MCURC properly considered Lutalo's history and
behavior as an inmate. His radical views and ability to
influence other inmates support the MCURC's decision.
Throughout his brief, Lutalo, continually refers to
his
pl ac em ent
"ad mi nis tr at iv e
in
t he
MCU
segregation."
as
This
a
pl a cem en t
is
an
in
incorrect
statement. Placement in the MCU does not occur as a result
of punitive measures. The MCU is
Page 14
a close custody unit to which an inmate may
be assigned if the inmate poses a
substantial threat to the safety of
others; of damage to or destruction of
pioperty;
or
operation of
facility.
a
of
interrupting
the
State correctional
[N.J.A.C. 10A:5-1.3].
In contrast, administrative segregation refers to "removal of an
inmate from the general population of a correctional facility
to
a
close
custody
disciplinary
MCURC
has
unit
infractions."
determined,
because
(Ibid.)
pursuant
to
In
one
Lutalo's
N.J.A.C.
or
more
case,
the
10A:5-2.5(a),
to
continue his placement in the MCU in order to insure the safety
and
security
of
the
correctional
facility
and
not
to
punish
Lutalo.
Therefore, Lutalo's arguments that he should be removed
from
the
MCU
because
he
can
only
be
held
in
administrative
segregation following due processes that he did not receive are
without
merit,
because
Lutalo
is
not
being
held
in
administrative segregation. (Ab13-Ab19).
Lutalo argues that his membership in the Black Liberation
Organization and the Anarchist Black Cross Foundation and his
possession of materials related to these groups can not be the
basis for his placement in the MCU.' (Ab20-Ab29). Lutalo relies
'In support of this argument, appellant relies on
previous decisions by the MCURC which are not the subject of
this appeal. Appellant is appealing the MCURC's May 29, 2008
decision on their routine review of appellant's` MCU placement.
Therefore, the court should disregard appellant's references
to any previous decisions by the MCURC.
heavily
upon
on
Balagun
v.
New
Jersey
Page 15
Department of
Corrections, 361 N.J. Super. 199, 203 (App. Div. 2003). In
Balagun, the Hearing Officer relied on the conclusions of a
senior investigating officer in finding an inmate guilty of
disciplinary infractions. The court held that the Hearing
Officer
failed
to
adequately
explain
his
decision
and
stated that "while an administrative decision is entitled to
deference, we will not perfunctorily review and rubber stamp
the agency's decision." Balagun, supra, 361 N.J. Super. at
203-04.
In
this
matter,
the
MCURC
did
not
rely
solely
on
Lutalo's political affiliations with anti-government groups,
but rather the threatening and disruptive behavior in which
he
engaged
in
furtherance
of
the
of
views
these
organizations, as well as Lutalo's failure to complete any
of
the
necessary
programs
required
for
consideration
of
release from the MCU. (Ra78). The reports of the Special
Investigation Division which describe Lutalo as an active
participant with the Black Liberation Army, the Anarchist
Black
Cross
Committee
Foundation
and
detail
and
his
the
American
activities
Friends
Service
these
subserve
with
groups. (Ra78, Cra3- Cral3). In fact, these reports directly
refute
Lutalo's
claims
that
he
has
"proselytize" or "advocate" membership in
not
attempted
these
groups
to
to
fellow inmates. (Ab29, Cra3-Cral3).
Lutalo remained engaged in recruitment and fund raising
for these anti-government organizations, whose sole purpose
is to
Page 16
overthrow
violence.
legitimate
governmental
(Cra3-Cral3).
agencies
Throughout
his
through
incarceration,
Lutalo has received literature and materials relative to
the purchase of weapons, firearm information and disruptive
tactics such as strikes and guerilla warfare that could be
used during an escape. (Ibid.) Moreover, the investigation
also determined that while Lutalo was incarcerated at NJSP,
he
participated
in
fraudulently
making
a
video
inciting
violence and soliciting money. (Ibid.)
Accordingly,
the
MCRUC
was
appropriately
concerned
by
Lutalo's admitted allegiance to the Black Liberation Army and
the
Anarchist
Black
groups,
resulting
safety
and
incite
violence.
Cross
in
security
Foundation,
behaviors
of
the
Therefore,
which
and
other
threatened
correctional
the
similar
MCURC
facility
has
the
and
properly
continued Lutalo's placement in the MCU.
Lutalo also appears to argue that the MCURC's reliance
upon the material and/or writings to or from
the anti-
government organizations of which Lutalo is a member was
unconstitutional. (Ab28). In support of this argument, Lutalo
relies upon Procunier v.
overruled by Thornburgh v.
Martinez,
416
U.S.
396
(1974),
Abbott, 490 U.S. 401 (1989). In
Procunier,
the
Court
found
unconstitutional
prison
regulations, which "barred writings that `unduly complain'
or
'magnify
grievances,'
express
'inflammatory
political,
racial, religious pr other views,' or are 'defamatory' or
'otherwise
inappropriate."'
Procunier,
supra,
416
U.S.
at
415.
Page 17
Those regulations "invited prison officials and employees to
apply
t h ei r o wn pe rs on a l p re ju d ic es a n d o pi ni o ns a s s ta n da rd s
for
prisoner mail censorship." Ibid.
Conversely, in Thornburgh, the Court upheld as
constitutional
prison
regulations,
which
"generally
permitted]
an
inmate to subscribe to, or to receive, a publication without
prior
approval,
publication
...
but
'if
authorize[d]
it
is
the
determined
warden
to
detrimental
reject
to
a
the-
security, good order, or discipline of the institution or if it
might facilitate criminal activity.'" T h o r n b u r g h , s u p r a , 4 9 0
U.S.
at
419. In
doing
so,
the
Court
recognized that the
constitutional rights of prison inmates "must be
exercised
with
difficult
due
regard
for
the
'inordinately
undertaking' that is modern prison administration.'" Id. at 419,
quoting
Court
Turner
explained
v.
Safley,
that
482 U.S. 78,
"[p]rison
officials
85 (1987).
may
The
conclude
that certain proposed interactions [between outside people
and/organizations
innocuous
to
with
inmates],
laymen,
have
though
seemingly
potentially
significant
implications for the order and security of
the prison."
Thornburgh, supra, 4 9 0 U . S . at 4 0 7 .
The Court
further acknowledged that "the judiciary is 'ill equipped' to
deal with the difficult and delicate problems of prison
management" and
that the Court "has afforded considerable deference to
the
determinations of prison administrators who, in the interest of
Page 18
security, regulate the relations between prisoners and the
outside world." Id. at 407-08, citing Turner, supra, 482
U.S. at 404-05.
As articulated in Thornburgh, 'the MCURC determined that
the
material
Lutalo
received
from
the
anti-government
organizations to which he is a member are inappropriate and
not authorized for retention on "the basis of their potential
implications for prison security." Id. at 416. Throughout
his
incarceration,
materials
relative
Lutalo
has
to
purchase
the
received
of
literature
weapons,
and
firearm
information and disruptive tactics such as strikes and guerilla
warfare, all of which could be used to as an attempt to
escape and/or to jeopardize the safety and security of the
prison.
(Cra3-Cral2).
Accordingly,
the
MCURC
rightly
considered the nature of the materials possessed by Lutalo in
determining the appropriateness of continuing his placement
in the MCU.
Finally,
liberty
an
inmate
interest
in
has
no
remaining
constitutional
in
any
protected
particular
custody
status, and therefore, no due process rights regarding his
placement
in
restrictive
custody
as
long
as
that
custody is within the parameters of his sentence. Sandin v.
Conner, 515 U.S. 472 (1995); White v. Fauver, 219 N.J. Super.
170
(App.
Div.
1987).
Instead,
Lutalo
has
limited
due
process rights granted to him by the regulations contained
in the New Jersey Administrative Code. See Layton v. Beyer,
953 F.3d 539 (3rd Cir. 1992). Those rights are limited to
the scope of rights granted by regulation.
Page 19
The
contained
applicable
at
regulations
N.J.A.C.
for
10A:5-2.10,
MCURC
et
hearings
seq.
Pursuant
are
to
N.J.A.C. 10A:5-2.10(a), an inmate placed in the MCU must be
reviewed every three months. In this case, the MCURC had
previously reviewed Lutalo's case on March
scheduled
the"
next
hearing
for
May
5, 2008,
2008.
and
(Ra29).
Therefore, he was routinely reviewed. A written record of the
proceedings was maintained by the MCU pursuant to N.J.A.C.
10A:5-2.10(b).
In
addition,
Lutalo
was
afforded
the
opportunity to appear and make a statement on his own behalf
although he declined
to do so, pursuant to N.J.A.C. 10A:5-2.10(c).
(Ra78).
As for the remaining requirements of this Code section,
the MCURC properly considered Lutalo's records pursuant to
N.J.A.C.
10A:5-2.10(e), as discussed above. Thus, Lutalo
received all the process due to him.
Pag
e 20 CONCLUSION
For
the
dismissed
reasons
because
administrative
Department's
stated
appellant
remedies,
final
above,
or
agency
the
failed
in
the
decision
to
appeal
to
should
be
exhaust
his
alternative,
the
continue
Lutalo's
placement in the MCU should be affirmed.
Respectfully submitted,
ANNE MILGRAM
ATTORNEY GENERAL OF NEW
JERSEY
By:
Su
Deputy Attorney General
cspmail@dol.lps.state.nj.us
Melissa H. Raksa
Assistant Attorney General
Of Counsel
c: Ojore Lutalo, #59860/901548, New Jersey State Prison
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Letter
Brief
and
Appendix
op
Behalf
of
Respondent
Department
of
Corrections
in
Respondent's Motion to Dismiss the Appeal
Support
for
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10
Braeburn Drive
Princeton, New Jersey 08540
qi)„VA)Y-atQ., Burnette
D. Bussey
Dated:
February 20, 2009
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Letter
Respondent
Department
Respondent's
Motion
to
Brief
of
and
Appendix
Corrections
Dismiss
the
Appeal
op
in
for
Behalf
Support
of
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10 Braeburn
Drive
Princeton, New Jersey 08540
q---\\PMA
Burnette D. Bussey
Dated:
February 20, 2009
BRUCE I. AFRAN
10 Braeburn Drive
Princeton, New Jersey 08540
609-924-2075
Attorney for Appellant
JON S. CORZINE
Governor
State of New Jersey
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
ANNE MILGRA
Attorney Genera
DIVISION OF LAW
25 MARKET STREET
P O Box 112
TRENTON.
NJ 08625-0112
February 19, 2009
Joseph H. Orlando, Clerk
Superior Court
of New Jersey
Appellate
Division
Richard J. Hughes
Justice Complex
P.O. Box 006
Trenton, New Jersey 08625
Re: Ojore Lutalo v. Department
of Corrections Docket No.
A-5496-07T3
ROBERT J. GILS
Director
Civil Action: On Appeal from a Final
Decision of the Department of
Corrections
Letter Brief on Behalf 'of Respondent
Department of Corrections in Support of
Respondent's
Motion
to
Dismiss
the
Appeal for Appellant's Failure to
E x h a u s t Administrative Remedies, Pursuant
to R. 2:2-3(a) (2), and on the Merits of
the Appeal.
Dear Mr. Orlando:
Please accept this letter brief on behalf of
respondent Department of Corrections in support of
its Motion to Dismiss the Appeal for appellant's
failure to exhaust administrative remedies and on
the merits of the appeal.
HUGHES JUSTICE COMPLEX • TELEPHONE: (609) 633-7786 • FAX:(609) 777-3607
New Jersey Is An Equal Opportunity Employer • Printed on Recycled Paper and
Recyclable
Notice of Classification Decision, Initial Management
Control Unit Placement, dated November 23, 2005,
with attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ra40
P
age 2 TABLE OF CONTENTS
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS
ARGUMENT
POINT I
LUTALO'S APPEAL SHOrJLD BE DISMISSED BECAUSE
HE FAILED TO EXHAUST ALL ADMINISTRATIVE
3
REMEDIES
AVAILABLE TO HIM ..................................... 6
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL:
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED WITH ALL DUE PROCESS
REQUIREMENTS ...............................
CONCLUSION ...................................................
20
APPENDIX
Inmate Face Sheet
..........................................
Inmate Progress Notes
......................................
Ral
Ras
Authorization for Prehearing MCU, dated July 30, 1992 .
Ra31
Memo from Donald Mee to Shift Commander,
dated October 18, 2005 ...............................
Ra32
Memo from Ronald Cathel to Ojore Lutalo,
dated October 21, 2005 • ..............................
Ra33
Request for Counsel Substitute, dated October 18, 2005
. Ra34
Notice of SS-MCU Classification Hearing ...................
Ra35
Criteria Record Sheet, dated October 17, 2005 ............. Ra36
Page 3
Notice of Classification Decision, Routine Review of
Management Control Unit Placement, dated May 29,
2008,
with attachments ..................................... Ra78
CONFIDENTIAL APPENDIX'
Psychology Department MCU Assessment,
dated October 21, 2005 ............................... Cral
Special Investigations Division Administrative Investigation,
dated August 9, 2005 ................................. Cra3
Special Investigations Division Administrative Investigation,
dated May 30, 2008
.................................. Cral2
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS2
Appellant
Ojore
Lutalo
is
an
inmate
currently
incarcerated at New
Jersey
State
Prison
in
Trenton,
New
Jersey. (Ral). He is serving a forty-eight-year, seven-month
and
thirteen
day
sentence
for
robbery,
possession
of
a
weapon for an unlawful purpose, unlawful possession of a
weapon, and two counts of aggravated assault. (Ra2). He is
appealing the final agency decision of the Department of
Corrections
rendered
on
May
29,
2008,
continuing
his
placement on the Management Control Unit ("MCU"). (Ra78).
Lutalo
readily
admits
being
associated
with
the
Black Liberation Army, the Anarchist Black Cross Foundation
and the American Friends Service Committee and identifies
himself as "a political prisoner having done nothing wrong"
despite being
'The confidential appendix is filed simultaneously with
this brief under separate cover.
2The
Procedural. History and Counterstatement of Facts
are combined for the convenience of the court as they are
substantially related.
Page 4
lawfully
convicted
of
several
crimes.
(Ra43).
An
investigation
participant
determined
in
the
that
Lutalo
aforementioned
has
been
groups,
an
active
including
recruitment and fund raising.' (Ra43, Cra3-Cral2). The these
groups' sole purpose is to overthrow legitimate governmental
agencies
through
violence.
(Ibid.)
Throughout
his
incarceration, Lutalo has received literature and materials
relative to the purchase of weapons, firearm information and
disruptive tactics such as strikes and guerilla warfare.
(Ra38, Ra43). Between February 2002. and February 2005, there
were thirty-four mailroom seizures of contraband/prohibited
material
sent to Lutalo from these groups. (Ra38). Lutalo received
approximately
$2,099.15
between
2000
and
2005
from
the
Anarchist Black Cross Federation. (Ibid.)
The investigation also determined that while Lutalo
was incarcerated at NJSP, a videotape was fraudulently made
espousing Lutalo's political views and soliciting money .
(Ra39). The money was to be sent to Bonnie Kerness, care of
American Friends Service Committee.
(Ibid.)
Ms.
Kerness
has visited Lutalo. (Ibid.) During visits she has acted
inappropriately at a window session, and notably, appeared
naked during a visit session in September
1993.
(Ibid.)
Lutalo has received monies generated by this
'Although
a
non-confidential
summary
of
this
investigation is provided at Ra38-Ra39; the court is
encouraged to review the investigat ion report in its
entirety as attached in the confidential appendix at
Cra3-Crall.
Page 5
videotape and from other sources through the American
Friends Service Committee. (Ibid.); In addition, Lutalo has
received
materials
violence,
contain
from
this
information
groupon
that
weapons
espouse
and
military
tactics as well as other information that could be used
during an escape. (Ibid.)
Because
of
Lutalo's
continued
involvement
with
organizations whose sole function is to disrupt legitimate
governmental agencies, on November 23, 2005, the Management
Control
Unit
Review
Committee
("MCURC")
determined
that
Lutalo should be placed in the MCU. (Ra43).
Since Lutalo's initial placement in the MCU, the MCURC
has conducted both annual and routine reviews in order to
determine whether he should remain in MCU or return to the
general population of the prison. (Ra26-Ra29). On May 29,
2008, the MCURC conducted a routine review of Lutalo's case.
(Ra78). Despite being afforded the opportunity to attend
this review hearing, Lutalo refused to attend the hearing.
(Ibid.) The MCURC determined that Lutalo should remain in
the MCU. (Ibid.)
In
rendering
its
decision.,
the
MCURC
considered
the
documents concerning Lutalo's initial placement in the MCU,
his
disciplinary
reports,
services,
medical
housing
reports.
and
program
participation,
psychological
(Ibid.)
In
social
interview,
addition,
the
and
MCURC
considered Lutalo's compliance with the revised MCU placement
phases. (Ibid.) After considering all the evidence,
Pa
ge 6 the MCURC determined that Lutalo remains a threat to
the safe,
secure and orderly operation of New Jersey State Prison,
and therefore, he should remain in the MCU. (Ibid.)
Not only did Lutalo refuse to attend his May 29, 2008
MCU r o u t i n e
review
hearing,
Lutalo
also
failed
to
f i l e a n administrative appeal of that decision.
On July 18, 2008, Lutalo filed an appeal directly with
this court.
ARGUMENT
POINT I
LUTALO'S
APPEAL
SHOULD
BE
DISMISSED
BECAUSE
HE
FAILED
TO
EXHAUST
ALL
ADMINISTRATIVE REMEDIES AVAILABLE TO HIM
The exhaustion of administrative remedies requirement of
R.
2:2-3(a) (2) precludes appeals to this court as long as
there
remains
"available
a
right
of
review
before
the
administrative agency."
Before
an
Division, he
Administrator
inmate
has
or
files
the
option
constitutes
necessary
for
an
appeal
of
with
the
requesting
Appellate
the
prison
designee to review the decision of the
MCURC pursuant to N.J.A.C.
appeal
an
the
10A:5-2.7. Such an administrative
final
inmate
to
agency
exhaust
decision
his
which
is
administrative
remedies. Trantino v. New Jersey State Parole Bd., 154 N.J.
19, 29 (1998) (noting that because an administrative appeal
of a parole hearing had been pending before the Board, this
Page 7
court
had
dismissed
Trantino's
appeal
so
that
he
could
first "exhaust his administrative remedies").
Here, Lutalo did not appeal the MCURC's May 29, 2008,
decision continuing his placement in the MCU. (Ra78).
Instead,
he
immediately filed an appeal to this court.
Since Lutalo failed to administratively appeal the' MCURC's
decision to continue his placement in the MCU to the prison
administrator, there is no final agency decision for this
court to consider.
Lutalo
appeal
to
now
the
claims
that
he
Commissioner,
but
filed
an
offers,
administrative
no
evidence
to
support his claim. (Ab1). He supplies no date .of service
and no copy of any such appeal. Furthermore, an appeal to
the Commissioner is not an administrative appeal pursuant to
N.J.A.C. 10A:5-2.7,because such an appeal is to be sent to
the
prison
Administrator.
Therefore,
by
appellant's
own
admission, he failed to properly exhaust his administrative
remedies by filing an appeal with the Administrator of New
Jersey State Prison.
Because there is no final agency decision from which
Lutalo can appeal, his appeal should be dismissed for failure
to exhaust his administrative remedies.
Page 8
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD, BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL
UNIT
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED
WITH
ALL
DUE
PROCESS
REQUIREMENTS
The MCURC's May 29, 2008, decision that Lutalo should
remain in the MCU is supported by substantial, credible
evidence and should be affirmed.' Lutalo claims that the
Department's decision was based on disciplinary charges that
were
dismissed
or
downgraded
and
on
Lutalo's
political
beliefs, and therefore, he should be released from the MCU.
These arguments are without merit because the Department's
decision was supported by substantial credible evidence and
comported with due process requirements.
Only
where
an
agency's
decision
is
arbitrary
or
capricious or unsupported by credible evidence in the record
may it be reversed. Henry v. Rahway State Prison, 81 N.J.
571, 579 (1980). Unless a
action
was
arbitrary,
court finds that the agency's
capricious,
or
unreasonable,
agency's ruling should not-be disturbed. In re
N.J.
644,
657
(1999);
Barone
v.
Department
the
Taylor, 158
of
Human
Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd,
107 N.J. 355 (1987).
'Although
Appellant
addresses
several
previous
decisions by the MCURC in his brief, the only decision before
the court is the May 29, 2008 decision, and for that reason,
Respondent shall limit its discussion to that decision.
Page 9
As explained in In re Application of Hackensack Water
Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial
evidence
is
"such
evidence
as
a
reasonable
mind
might
accept as adequate to support a conclusion." See also In re
Public Service Elec. & Gas, 35 N.J. 358, 376 (1961); Mead
Johnson & Co. v. Borough of South Plainfield,
Super.
455,
466
(App.
Div.
1967).
The
95
N.J.
substantial
evidence standard permits an agency to apply its expertise
where the evidence supports more than one conclusion. "Where
there is substantial evidence in the record to support more
than one regulatory conclusion, 'it is the agency's choice
which
governs.'"
In
re
Vineland
Chemical
Co.,
243
N.J.
Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323
(1990) (quoting De Vitis
v. New Jersey Racing Comm'n, 202 N.J.
Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337
:(1985)).
In this case there was substantial, credible evidence
to support the MCURC's conclusion. Pursuant to N.J.A.C.
10A:5-2.10(e), at each review, the MCURC shall again
review the information upon which the decision was based to
assign
the
inmate
to
the
MCU.
Such
information
include:
4.
Disciplinary reports;
5.
Program participation such as, but
not
limited
to,
education,
shall
counseling
activities;
and
recreation
6.
Records of the inmate's behavior
and attitude while in the Unit such
as, custody and professional staff
reports
which
must
periodically
be
filed
.256, refusing to obey an order of any staff member.
(Ibid.) In
Page 10
describing pertinent observations,
both positive and negative, of the
inmate's behavior and attitude while
in the MCU.
The MCURC considered Lutalo's disciplinary history. In
his
brief,
Lutalo
states
that
he'has
a
"nearly
perfect
disciplinary record during his nearly [twenty-five] years
of confinement." (Ab2). However, the record is clear that
while in both the MCU and general population at New Jersey
State
Prison,
Lutalo
has
committed
multiple
disciplinary
infractions, some of which were serious offenses, denoted
by an asterisk.
In
May
1990,
Lutalo
was
adjudicated
guilty
of
.210,
possession of anything not authorized for retention or receipt
by
an
inmate.
adjudicated
(Ball).
guilty
of
In
.210
August
1991,
possession
of
he
was
twice
anything
not
authorized for retention or receipt by an inma te. (R a1 2) .
In Se pte mb er 1 991 , Lut al o wa s a ga in adjudicated guilty
of .210, possession of anything not authorized for retention
or receipt by an inmate. (Ibid.) In October 1991, he was
adjudicated guilty of *.202, possession or introduction of a
weapon,
such
as,
but
not
limited
to,
a
sharpened
instrument,
knife or unauthorized tool.
(Ibid.)
In November 1991, he was
again adjudicated guilty of .210, possession of anything
not
authorized for retention or receipt by an inmate.
(Ra13)
.
In
November 1993, Lutalo was adjudicated guilty of *.002,
assaulting
any person.
January
(Ibid.)
1999,
he
In November 1995, he was found guilty of
Page 11
was
adjudicated
guilty
of
*.803,
attempting to commit an infraction. (Ibid.) In April 1999,
he was adjudicated guilty of .210, possession of anything not
authorized for retention or receipt by an inmate. (Ra14,
Ra84). In November 2000, he was again found guilty of a .210
violation.
(Ibid.)
In
November
2005,
he
was
adjudicated
guilty of .705, commencing or operating a business or group
for
profit
enterprise
or
commencing
without
the
or
approval
operating
of
the
a
nonprofit
Superintendent.
(Ibid.)
Lutalo's disciplinary history exhibits a long pattern
of disobeying the rules, even while he was assigned to the
MCU. He even committed an assault while in the MCU, and
continued to disregard authority by refusing to obey orders
and
attempting
occasions.
to
possess
(Ra13).
contraband
These
items
infractions
on
multiple
demonstrate
an
attitude which shows an inability to follow the rules and an
inability to house with other inmates in a nondisruptive and
nondestructive manner.
Lutalo
claims
that
the
Department
should
not
have
considered disciplinary infractions from July and September
2005, which were eventually reversed by this court and removed
from Lutalo's record. (Ab4-Ab6). This argument fails for two
reasons.
First,
while
the
MCURC
did
consider
Lutalo's:
disciplinary record during their routine review of his MCU
placement on May 29, 2008, the disputed charges were not part
of that record because they were previously
Page 12
expunged
and
were
therefore
not
considered.
(Rall-Ra14).
Second, although the aforementioned disciplinary charges that
were reversed and expunged from Lutalo's disciplinary record,
Lutalo nevertheless participated in the fraudulent making of
a video espousing his political views and soliciting funds,
and receipt of deposits to his prison account. Therefore, the
MCURC was entirely correct in considering Lutalo's prison
behavior
contained
confidential
in
Special
the
criteria
Investigation
record
sheet
Division
and
reports
regarding his fraudulently making a video and soliciting
funds.
The MCURC also considered the reports concerning
Lutalo's •
housing, work and program assignments.
Lutalo claims he holds
"the
highest
available
and
to
a
characterization
most
New
is
satisfactory
Jersey
belied
by
behavioral
prisoner;"
the
record.
rating
however,
(Ab2,
this
Ra80).
Lutalo's adjustment to the MCU unit is labeled as "good."
However, this does not negate his inability to follow the
rules and obey orders and does not mean that he should be
placed in general population. (Ra80). In addition, Lutalo
has not yet participated in any of the programming required
for consideration of release from the MCU, such as,
behavior
modification or anger management. (Ra78, Ra80).
Nor has Lutalo participated in psychological or individual
counseling
or
cognitive
behavior
strategies.
(Ra80).
Furthermore, Lutalo has continued to
refuse to attend his routine review hearings.
(Ibid.) Clearly,
Pag
e 13 Lutalo has not done everything possible to advance out of
the MCU,
and there remain steps Lutalo can take to demonstrate his
efforts
towards positive adjustment.
Pursuant to N.J.A.C. 10A:5-2.10(f),
An inmate shall be released from the MCU
when, in the opinion of the MCURC, the
inmate no longer poses a substantial
threat:
4.
To the safety of others;
5.
Of damage to or destruction of
property; Or,
6.
Of interrupting the operation of a
State correctional facility.
After considering the above factors, the
properly
concluded
that
there
was
substantial
MCURC
credible
evidence that, if placed in the general population, Lutalo
would pose a substantial threat to the safety of others, and
would
interrupt
correctional
the
facility.
safe
and
Lutalo
secure
claims
operation
that
of
the
the
MCURC's
decision was improper because it did not rely on any current
information
regarding
his
behavior.
This
argument
fails
because the MCURC properly considered Lutalo's history and
behavior as an inmate. His radical views and ability to
influence other inmates support the MCURC's decision.
Throughout his brief, Lutalo, continually refers to
his
placement
"administrative
in
the
MCU
segregation."
as;
This
a
is
placement
an
in
incorrect
statement. Placement in the MCU does not occur as a result
of punitive measures. The MCU is
Page 14
a close custody unit to which an inmate
may be assigned if the inmate poses a
substantial threat to the safety of
others; of damage to or destruction of
property;
or
of
interrupting
th e
ope ra tio n o f a St at e co rr e cti on al
facility.
[N.J.A.C. 10A:5-1.3].
In contrast, administrative segregation refers to "removal
of an inmate from the general popul4tion of a correctional
facility to a c l o s e
more
custody
disciplinary
unit
infractions."
because
(Ibid.)
one
In
or
Lutalo's
case, the MCURC has determined, pursuant to N.J.A.C. 10A:52.5(a), to continue his placement in the MCU in order to
insure the safety and security of the correctional facility
and not to punish Lutalo.
Therefore, Lutalo's arguments that he should be removed
from the MCU because he can only be held in administrative
segregation following due processes that he did not receive
are without merit,
because
Lutalo
is
not
being
held
in
administrative segregation. (Ab13-Ab19).
Lutalo
Liberation
argues
that
Organization
his
and
membership
the
in
Anarchist
the
Black
Black
Cross
Foundation and his possession of materials related to these
groups can not be the basis for his placement in the MCU.'
(Ab20-Ab29). Lutalo relies
'In support of this argument, appellant relies on
previous decisions by the MCURC which are not the subject of
this appeal. Appellant is appealing the MCURC's May 29, 2008
decision
on
their
routine
review
of
appellant's.MCU
placement. Therefore, the court should disregard appellant's
references to any previous decisions by the MCURC.
Page 15
heavily upon on Balagun v. New Jersey Department of
Corrections, 361 N.J. Super. 199, 203 (App. Div. 2003). In
Balaqun, the Hearing Officer relied on the conclusions of a
senior investigating officer in finding an inmate guilty of
disciplinary infractions. The court held that the Hearing
Officer
failed
to
adequately
explain
his
decision
and
stated that "while an administrative decision is entitled to
deference, we will not perfunctorily review and rubber stamp
the agency's decision." Balaqun, supra, 361 N.J. Super. at
203-04.
In
this
matter,
the
MCURC
did
not
rely
solely
on
Lutalo's political affiliations with anti-government groups,
but rather the threatening and disruptive behavior in which
he
engaged
in
furtherance
of
the
views
of
these
organizations, as well as Lutalo's failure to complete any
of
the
necessary
programs
required
for
consideration
of
release from the MCU. (Ra78). The reports of the Special
Investigation Division which describe Lutalo as an active
participant with the Black Liberation Army, the Anarchist
Black
Cross
Committee
Foundation
and
detail
and
his
the
American
activities
Friends
Service
these
subserve
with
groups. (Ra78, Cra3- Cral3). In fact, these reports directly
refute
Lutalo's
claims
that
he
has
"proselytize" or "advocate" membership in
not
attempted
these
groups
to
to
fellow inmates. (Ab29, Cra3-Cra13).
Lutalo remained engaged in recruitment and fund raising
for these anti-government organizations, whose sole purpose
is to
Page 16
overthrow
legitimate
violence.
governmental
(Cra3-Cral3).
agencies
Throughout
his
through
incarceration,
Lutalo has received literature and materials relative to
the
purchase
of
weapons,
firearm
information
and
disruptive, tactics such as strikes and guerilla warfare
that could be used during an escape. (Ibid.) Moreover, the
investigation
also
incarcerated
making
a
at
video
determined
NJSP,
he
inciting
that
while
participated
violence
and
Lutalo
in
was
fraudulently
soliciting
money.
(Ibid.)
Accordingly,
the
MCRUC
was
appropriately
concerned
by
Lutalo's admitted allegiance to the Black Liberation Army and
the
Anarchist
Black
groups,
resulting
safety
and
incite
violence.
Cross
in
Foundation,
behaviors
security
of
the
Therefore,
which
and
other
threatened
correctional
the
similar
MCURC
facility
has
the
and
properly
continued Lutalo's placement in the MCU.
Lutalo also appears to argue that the MCURC's reliance
upon the material and/or writings to or from
the anti-
government organizations of which Lutalo is a member was
unconstitutional. (Ab28). In support of this argument, Lutalo
relies upon Procunier v.
overruled by Thornburgh v.
Procunier,
the
Court
Martinez,
416
U.S.
396
(1974),
Abbott, 490 U.S. 401 (1989). In
found
unconstitutional
prison
regulations, which "barred writings that `unduly complain'
or
'magnify
grievances,'
express
'inflammatory
Political,
racial, religious pr other views,' or are 'defamatory' or
'otherwise
inappropriate."'
Procunier,
supra,
416
U.S.
at
415.
Page 17
Those regulations "invited prison officials and employees to
apply
t h ei r o wn pe rs on a l p re ju d ic es a n d o pi ni o ns a s s ta n da rd s
for
prisoner mail censorship." Ibid.
Conversely, in Thornburgh, the Court upheld as
constitutional
prison
regulations,
which
"generally
permit[ted]
an
inmate to subscribe to, or to receive, a publication without
prior
approval,
publication
...
but
authorize[d]
'if
it
is
the
warden
determined
to
reject
detrimental
a
to
the:security, good order, or discipline of the institution or
if it might facilitate criminal activity.'" T h o r n b u r g h , s u p r a ,
4 9 0 U . S . a t 4 1 9 . I n d o i n g s o , t h e C o u r t recognized that
the
constitutional
exercised
with
rights
due
of
prison
regard
for
inmates
the
"must
be
'inordinately
difficult undertaking' that is modern prison administration.'"
Id. at 419,
q u ot i ng
C o ur t
T ur ne r
explained
v.
S af le y ,
that
482
"[p]rison
U.S.
78,
85
officials
(1 9 87 ) .
may
T he
conclude
that certain proposed interactions [between outside people
and/organizations
innocuous
to
with
inmates],
laymen,
have
though
seemingly
potentially
significant
implications for the order and security of
the prison."
Thornburgh, supra, 490 U.S. at 407.
The Court
further acknowledged that "the judiciary is 'ill equipped' to
deal
with the difficult and delicate problems of prison management"
and
that the Court "has afforded considerable deference to
the
determinations of prison administrators who, in the interest of
Page 18
security, regulate the relations between prisoners and the
outside world." Id. at 407-08, citing Turner, supra, 482
U.S. at 404-05.
As articulated in Thornburgh, the MCURC determined that
the
material
Lutalo
received
from
the
anti-government
organizations to which he is a member are inappropriate and
not authorized for retention on "the basis of their potential
implications for prison security." Id. at 416. Throughout
his
incarceration,
materials
relative
Lutalo
has
to
purchase
the
received
of
literature
weapons,
and
firearm
information and disruptive tactics such as strikes and guerilla
warfare, all of which could be used to as an attempt to
escape and/or to jeopardize the safety and security of the
prison.
(Cra3-Cral2).
Accordingly,
the
MCURC
rightly
considered the nature of the materials possessed by Lutalo in
determining the appropriateness of continuing his placement
in the MCU.
Finally,
liberty
an
inmate
interest
in
has
no
remaining
constitutional
in
any
protected
particular
custody
status, and therefore, no due process rights regarding his
placement
in
restrictive
custody
as
long
as
that
custody is within the parameters of his sentence. Sandin v.
Conner, 515 U.S. 472 (1995); White v. Fauver, 219 N.J. Super.
170
(App.
Div.
1987).
Instead,
Lutalo
has
limited
due
process rights granted to him by the regulations contained
in the New Jersey Administrative Code. See Layton v. Beyer,
953 F.3d 539 (3rd Cir. 1992). Those rights are limited to
the scope of rights granted by regulation.
Page 19
The
contained
applicable
at
regulations
N.J.A.C.
for
10A:5-2.10,
MCURC
et
hearings
seq.
Pursuant
are
to
N.J.A.C. 10A:5-2.10(a), an inmate placed in the MCU must be
reviewed every three months. In this case, the MCURC had
previously reviewed Lutalo's case on March 5, 2008, and
scheduled
the'
next
hearing
for
May
2008.
(Ra29).
Therefore, he was routinely reviewed. A written record of the
proceedings was maintained by the MCU pursuant to N.J.A.C.
10A:5-2.10(b).
In
addition,
Lutalo
was
afforded
the
opportunity to appear and make a statement on his own behalf
although he declined to do so, pursuant to N.J.A.C. 10A:5-
2.10(c).
(Ra78).
As for the remaining requirements of this Code section,
the MCURC properly considered Lutalo's records pursuant to
N.J.A.C.
10A:5-2.10(e), as discussed above. Thus, Lutalo
received all the process due to him.
Pag
e 20 CONCLUSION
For
dismissed
the
reasons
because
administrative
Department's
stated
appellant
remedies,
final
agency
or
above,
the
failed
in
the
decision
to
appeal
to
should
be
exhaust
his
alternative,
the
continue
Lutalo's
placement in the MCU should be affirmed.
Respectfully submitted,
ANNE MILGRAM
ATTORNEY GENERAL OF NEW
JERSEY
B
4Air
Su n
S • t
Deputy Attorney General cspmail@dol.lps.state.nj.us
Melissa H. Raksa
Assistant Attorney General
Of Counsel
c: Ojore Lutalo, #59860/901548, New Jersey State Prison
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Respondent
Letter
Department
Respondent's Motion
Brief
of
and
Appendix
Corrections
op
in
to Dismiss the Appeal
Behalf
Support
for
of
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10 Braeburn
Drive
Princeton, New Jersey 08540
V))M atk ,
Burnette
D. Bussey
1-
Dated:
,
February 20, 2009
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5)
copies
Respondent
of
a
Letter
Department
Brief
of
and
Appendix
Corrections
Respondent's Motion to Dismiss the Appeal
on Behalf
of
Support
of
in
for
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10
Braeburn Drive
Princeton, New Jersey 08540
Burnette D. Bussey
Dated:
February 20, 2009
JON S. CORZINE
Governor
State of New Jersey
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
ANNE MILGRAM
Attorney Genera
DIVISION OF LAW
25
MARKET STREET
P O Box 112
TRENTON, NJ 08625-0112
February 19, 2009
Joseph H. Orlando, Clerk
Superior Court
of New Jersey
Appellate
Division
Richard J. Hughes
Justice Complex
P.O. Box 006
Trenton, New Jersey 08625
Re: Ojore Lutalo v. Department
of Corrections Docket No.
A-5496-07T3
ROBERT J. GILSO
Director
Civil Action: On Appeal from a Final
Decision of the Department of
Corrections
Letter Brief on Behalf 'of Respondent
Department of Corrections in Support of
Respondent's
Motion
to
Dismiss
the
Appeal for Appellant's Failure to
E x h a u s t Administrative Remedies, Pursuant
to R. 2:2-3(a) (2), and on the Merits of
the Appeal.
Dear Mr. Orlando:
Please accept this letter brief on behalf of
respondent Department of Corrections in support of
its Motion to Dismiss the Appeal for appellant's
failure to exhaust administrative remedies and on
the merits of the appeal.
HUGHES .JUSTICE COMPLEX • TELEPHONE: (609) 633 -7786 • FAY : (60 9) 777 -3607
New Jersey Ls. An Equal Opportunity Employer Printed on Recycled Paper and Recyclable
Notice of Classification Decision, Initial Management
Control Unit Placement, dated November 23, 2005,
with attachments . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ra40
P
age 2 TABLE OF CONTENTS
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS
ARGUMENT
POINT I
LUTALO'S APPEAL SHOULD BE DISMISSED
BECAUSE HE FAILED TO EXHAUST ALL
3
ADMINISTRATIVE REMEDIES
AVAILABLE TO HIM ..................................... 6
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL:
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED WITH ALL DUE PROCESS
REQUIREMENTS ....................................... 8
CONCLUSION ................................................... 20
APPENDIX
Inmate Face Sheet
.......................................... Ral
Inmate Progress Notes
...................................... Ra5
Authorization for Prehearing MCU, dated July 30, 1992 .
. Ra31
Memo from Donald Mee to Shift Commander,
dated October 18, 2005 ............................... Ra32
Memo from Ronald Cathel to Ojore Lutalo,
dated October 21, 2005 . .............................. Ra33
Request for Counsel Substitute, dated October 18, 2005
. Ra34
Notice of SS-MCU Classification Hearing ................... Ra35
Criteria Record Sheet, dated October 17, 2005 ............. Ra36
Page 3
Notice of Classification Decision, Routine Review of
Management Control Unit Placement, dated May 29,
2008,
with attachments ..................................... Ra78
CONFIDENTIAL APPENDIX'
Psychology Department MCU Assessment,
dated October 21, 2005 ............................... Cral
Special Investigations Division Administrative Investigation,
dated August 9, 2005 ................................. Cra3
Special Investigations Division Administrative Investigation,
dated May 30, 2008 .................................. Cral2
PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS2
Appellant
Ojore
Lutalo
is
an
inmate
currently
incarcerated at New
Jersey
State
Prison
in
Trenton,
New
Jersey. (Ral). He is serving a forty-eight-year, seven-month
and
thirteen
day
sentence
for
robbery,
possession
of
a
weapon for an unlawful purpose, unlawful possession of a
weapon, and two counts of aggravated assault. (Ra2). He is
appealing the final agency decision of the Department of
Corrections
rendered
on
May
29,
2008,
continuing
his
placement on the Management Control Unit ("MCU"). (Ra78).
Lutalo
readily
admits
being
associated
with
the
Black Liberation Army, the Anarchist Black Cross Foundation
and the American Friends Service Committee and identifies
himself as "a political prisoner having done nothing wrong"
despite being
'The confidential appendix is filed simultaneously with
this brief under separate cover.
'The Procedural History'and Counterstatement of Facts
are combined for the convenience of the court as they are
substantially related.
Page 4
lawfully
convicted
of
several
crimes.
(Ra43).
An
investigation
participant
determined
in
the
that
Lutalo
aforementioned
has
been
groups,
an
active
including
recruitment and fund raising.' (Ra43, Cra3-Cral2). The these
groups' sole purpose is to overthrow legitimate governmental
agencies
through
violence.
(Ibid.)
Throughout
his
incarceration, Lutalo has received literature and materials
relative to the purchase of weapons, firearm information and
disruptive tactics such as strikes and guerilla warfare.
(Ra38, Ra43). Between February 2002 and February 2005, there
were thirty-four mailroom seizures of contraband/prohibited
material
sent to Lutalo from these groups.
approximately
$2,099.15
between
(Ra38).
2000
and
Lutalo received
2005
from
the
Anarchist
Black Cross Federation.
(Ibid.)
The investigation also determined that while Lutalo
was incarcerated at NJSP, a videotape was fraudulently made
espousing Lutalo's political views and soliciting money .
(Ra39). The money was to be sent to Bonnie Kerness, care of
American Friends Service Committee.
(Ibid.)
Ms.
Kerness
has visited Lutalo. (Ibid.) During visits she has acted
inappropriately at a window session, and notably, appeared
naked during a visit session in September
1993.
(Ibid.)
Lutalo has received monies generated by this
'Although
a
non-confidential
summary
of
this
investigation is provided at Ra38-Ra39; the court is
encouraged to review the investigation report in its
entirety as attached in the confidential appendix at
Cra3-Crall.
Page 5
videotape
and
from
other
sources
through
the
American
Friends Service Committee. (Ibid.) , In addition, Lutalo
has received materials
violence,
contain
from
this
information
on
group-
that
espouse
and
military
weapons
tactics as well as other information that could be used
during an escape. (Ibid.)
Because
of
Lutalo's
continued
involvement
with
organizations whose sole function is to disrupt legitimate
governmental agencies, on November 23, 2005, the Management
Control
Unit
Review
Committee
("MCURC")
determined
that
Lutalo should be placed in the MCU. (Ra43).
Since Lutalo's initial placement in the MCU, the MCURC
has conducted both annual and routine reviews in order to
determine whether he should remain in MCU or return to the
general population of the prison. (Ra26-Ra29). On May 29,
2008, the MCURC conducted a routine review of Lutalo's case.
(Ra78). Despite being afforded the opportunity to attend
this review hearing, Lutalo refused to attend the hearing. (Ibid.)The MCUR
should remain in the MCU.
(Ibid.)
In rendering its decision, the
MCURC
considered
the
documents concerning Lutalo's initial placement in the MCU,
his
disciplinary
reports,
services,
medical
housing
reports.
and
program
participation,
psychological
(Ibid.)
In
social
interview,
addition,
the
and
MCURC
considered Lutalo's compliance with the revised MCU placement
phases. (Ibid.) After considering all the evidence,
Pa
ge 6 the MCURC determined that Lutalo remains a threat to
the safe,
secure and orderly operation of New Jersey State Prison,
and therefore, he should remain in the MCU. (Ibid.)
Not only did Lutalo refuse to attend his May 29, 2008
MCU r o u t i n e r e v i e w h e a r i n g , L u t a l o a l s o f a i l e d t o
file an
administrative appeal of that decision.
On July 18, 2008, Lutalo filed an appeal directly with
this
court.
ARGU
MENT
POINT
I
LUTALO'S
APPEAL
SHOULD
BE
DISMISSED
BECAUSE
HE
FAILED
TO
EXHAUST
ALL
ADMINISTRATIVE REMEDIES AVAILABLE TO HIM
The exhaustion of administrative remedies requirement of
R. 2:2-3(a) (2) precludes appeals to this court as long as
there
remains
"available
a
right
of
review
before
the
administrative agency."
Before
an
Division, he
Administrator
inmate
has
or
the
files
an
option
appeal
of
with
the
requesting
Appellate
the
prison
designee to review the decision of the
MCURC pursuant to N.J.A.C.
10A:5-2.7. Such an administrative
appeal
constitutes
necessary
for
an
the
final
inmate
agency
to
decision
exhaust
his
which
is
administrative
remedies. Trantino v. New Jersey State Parole Bd., 154 N.J.
19, 29 (1998) (noting that because an administrative appeal
of a parole hearing had been pending before the Board, this
Page 7
court
had
dismissed
Trantino's
appeal
so
that
he
could
first "exhaust his administrative remedies").
Here, Lutalo did not appeal the MCURC's May 29, 2008,
decision continuing his placement in the MCU. (Ra78).
Instead,
he
immediately filed an appeal to this court.
Since Lutalo failed to administratively appeal the' MCURC's
decision to continue his placement in the MCU to the prison
administrator, there is no final agency decision for this
court to consider.
Lutalo
appeal
to
now
the
claims
that
he
Commissioner,
but
filed
an
offers,
administrative
no
evidence
to
support his claim. (Abl). He supplies no date .of service
and no copy of any such appeal. Furthermore, an appeal to
the Commissioner is not an administrative appeal pursuant to
N.J.A.C. 10A:5-2.7,because such an appeal is to be sent to
the
prison
Administrator.
Therefore,
by
appellant's
own
admission, he failed to properly exhaust his administrative
remedies by filing an appeal with the Administrator of New
Jersey State Prison.
Because there is no final agency decision from which
Lutalo can appeal, his appeal should be dismissed for failure
to exhaust his administrative remedies.
Page 8
POINT II
THE FINAL DECISION OF THE DEPARTMENT OF
CORRECTIONS SHOULD BE AFFIRMED BECAUSE
THE
MANAGEMENT
CONTROL
UNIT
REVIEW
COMMITTEE'S DECISION IS SUPPORTED BY
SUBSTANTIAL,
CREDIBLE
EVIDENCE
AND
COMPORTED
WITH
ALL
DUE
PROCESS
REQUIREMENTS
The MCURC's May 29, 2008, decision that Lutalo should
remain in the MCU is supported by substantial, credible
evidence and should be affirmed.' Lutalo claims that the
Department's decision was based on disciplinary charges that
were
dismissed
or
downgraded
and
on
Lutalo's
political
beliefs, and therefore, he should be released from the MCU.
These arguments are without merit because the Department's
decision was supported by substantial credible evidence and
comported with due process requirements.
Only
where
an
agency's
decision
is
arbitrary
or
capricious or unsupported by credible evidence in the record
may it be reversed. Henry v. Rahway State Prison 81 N.J.
571,
579
(1980).
Unless
a
court
finds
that
the
agency's'action was arbitrary, capricious, or unreasonable,
the agency's ruling should not be disturbed. In re
Taylor,
158 N.J. 644, 657 (1999); Barone v. Department of Human
Services, 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd,
107 N.J. 355 (1987).
'Although
Appellant
addresses
several
previous
decisions by the MCURC in his brief, the only decision before
the court is the May 29, 2008 decision, and for that reason,
Respondent shall limit its discussion to that decision.
Pa
ge 9 As explained in In re Application of Hackensack
Water Co., 41
N.J. Super. 408, 418 (App. Div. 1956), substantial evidence
is "such evidence as a reasonable mind might accept as
adequate to
support a conclusion." See also In re Public Service Elec. &
Gas, 35 N.J. 358, 376 (1961) ; Mead Johnson & Co. v. Borough
of South Plainfield, 95 N.J. Super. 455, 466 (App. Div.
1967).
The
substantial evidence standard permits an agency to apply
its expertise where the evidence supports more than one
conclusion. "Where there is substantial evidence in the record
to support more than one regulatory conclusion, 'it is the
agency's choice which governs.'" In re Vineland Chemical
Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127
N.J. 323 (1990) (quoting De Vitis
v. New Jersey Racing Comm'n,
202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102
N.J. 337 :(1985)).
In this case there was substantial, credible evidence
to support the MCURC's conclusion. Pursuant to N.J.A.C.
10A:5-2.10(e), at each review, the MCURC shall again
review the information upon which the decision was based to
assign
the
inmate
to
the
MCU.
Such
information
shall
include:
4.
5.
Disciplinary reports;
Program participation such as, but
not
limited
to,
education,
counseling
and
recreation
activities;
6.
Records of the inmate's behavior
and attitude while in the Unit such
as, custody and professional staff
reports
which
must
periodically
be
filed
Page 10
describing pertinent observations,
both positive and negative, of the
inmate's behavior and attitude while
in the MCU.
The MCURC considered Lutalo's disciplinary history. In
his brief, Lutalo states that he' has a "nearly perfect
disciplinary record during his nearly [twenty-five] years
of confinement." (Ab2). However, the record is clear that
while in both the MCU and general population at New Jersey
State
Prison,
Lutalo
has
committed
multiple
disciplinary
infractions, some of which were serious offenses, denoted
by an asterisk.
In
May
1990,
Lutalo
was
adjudicated
guilty
of
.210,
possession of anything not authorized for retention or receipt
by
an
inmate.
adjudicated
(Rail).
guilty
of
In
.210
August
1991,
possession
of
he
was
twice
anything
not
authorized for retention or receipt by an inma te. (R a1 2) .
In Se pte mb er 1 991 , Lut al o wa s a ga in adjudicated guilty
of .210, possession of anything not authorized for retention
or receipt by an inmate. (Ibid.) In October 1991, he was
adjudicated guilty of *.202, possession or introduction of a
weapon,
such
as,
but
not
limited
to,
a
sharpened
instrument,
knife or unauthorized tool.
(Ibid.)
In November 1991, he was
again adjudicated guilty of' .210, possession of anything
not
authorized for retention or receipt by an inmate.
(Ra13)
.
In
November 1993, Lutalo was adjudicated guilty of *.002,
assaulting
any person.
(Ibid.)
In November 1995, he was found guilty of
.256, refusing to obey an order of any staff member.
(Ibid.) In
Page 11
January
1999,
he
was
adjudicated
guilty
of
*.803,
attempting to commit an infraction. (Ibid.) In April 1999,
he was adjudicated guilty of .210, possession of anything not
authorized for retention or receipt by an inmate. (Ra14,
Ra84). In November 2000, he was again found guilty of a .210
violation.
(Ibid.)
In
November
2005,
he
was
adjudicated
guilty of .705, commencing or operating a business or group
for
profit
enterprise
or
commencing
without
the
or
approval
operating
of
the
a
nonprofit
Superintendent.
(Ibid.)
Lutalo's disciplinary history exhibits a long pattern
of disobeying the rules, even while he was assigned to the
MCU. He even committed an assault while in the MCU, and
continued to disregard authority by refusing to obey orders
and
attempting
occasions.
to
possess
(Ra13).
contraband
These
items
infractions
on
multiple
demonstrate
an
attitude which shows an inability to follow the rules and an
inability to house with other inmates in a nondisruptive and
nondestructive manner.
Lutalo
claims
that
the
Department
should
not
have
considered disciplinary infractions from July and September
2005, which were eventually reversed by this court and removed
from Lutalo's record. (Ab4-Ab6). This argument fails for two
reasons.
First,
while
the
MCURC
did
consider
Lutalo'g
disciplinary record during their routine review of his MCU
placement on May 29, 2008, the disputed charges were not part
of that record because they were previously
Page 12
expunged
and
were
therefore
not
considered.
(Rall-Ra14).
Second, although the aforementioned disciplinary charges that
were reversed and expunged from Lutalo's disciplinary record,
Lutalo nevertheless participated in the fraudulent making of
a video espousing his political views and soliciting funds.,
and receipt of deposits to his prison account. Therefore, the
MCURC was entirely correct in considering Lutalo's prison
behavior
contained
confidential
in
Special
the
criteria
record
Investigation
sheet
Division
and
reports
regarding his fraudulently making a video and soliciting
funds.
The
Lutalo's
claims
MCURC
also
housing,
he
behavioral
holds
rating
considered
work
and
"the
the
program
highest
available
to
reports
assignments.
and
a
concerning
New
most
Lutalo
satisfactory
Jersey
prisoner;"
however, this characterization is belied by
the record. (Ab2, Ra80). Lutalo's adjustment to the MCU
unit is labeled as "good." However, this does not negate his
inability to follow the rules and obey orders and does not
mean that he should be placed in general population. (Ra80).
In addition, Lutalo has not yet participated in any of the
programming required for consideration of release from
the
MCU,
management.
such
(Ra78,
as,
behavior
Ra80).
Nor
has
modification
Lutalo
or
anger
participated in
psychological or individual counseling or cognitive behavior
strategies. (Ra80). Furthermore, Lutalo has continued to
refuse to attend his routine review hearings.
(Ibid.) Clearly,
Page 13
Lutalo has not done everything possible to advance out of the
MCU, and there remain steps Lutalo can take to demonstrate
his efforts towards positive adjustment.
Pursuant to N.J.A.C. 10A:5-2.10(f),
An inmate shall be released from the MCU
when, in the opinion of the MCURC, the
inmate no longer poses a substantial
threat:
4.
5.
To the safety of others;
Of damage to or destruction of
property; or,
6.
Of interrupting the operation of a
State correctional facility.
After considering the above factors, the
properly
concluded
that
there
was
substantial
MCURC
credible
evidence that, if placed in the general population, Lutalo
would pose a substantial threat to the safety of others, and
would
interrupt
correctional
the
facility.
safe
and
Lutalo
secure
claims
operation
that
of
the
the
MCURC's
decision was improper because it did not rely on any current
information
regarding
his
behavior.
This
argument
fails
because the MCURC properly considered Lutalo's history and
behavior as an inmate. His radical views and ability to
influence other inmates support the MCURC's decision.
Throughout his brief, Lutalo, continually refers to
his
pl ac em ent
"ad mi nis tr at iv e
in
t he
MCU
segregation."
as
This
a
pl a cem en t
is
an
in
incorrect
statement. Placement in the MCU does not occur as a result
of punitive measures. The MCU is
Page 14
a close custody unit to which an inmate may
be assigned if the inmate poses a
substantial threat to the safety of
others; of damage to or destruction of
pioperty;
or
of
interrupting
the
operation of a State correctional
facility.
[N.J.A.C. 10A:5-1.3].
In contrast, administrative segregation refers to "removal of an
inmate from the general population of a correctional facility
to
a
close
custody
disciplinary
MCURC
has
unit
infractions."
determined,
pursuant
because
(Ibid.)
to
In
one
Lutalo's
N.J.A.C.
or
more
case,
the
10A:5-2.5(a),
to
continue his placement in the MCU in order to insure the safety
and
security
of
the
correctional
facility
and
not
to
punish
Lutalo.
Therefore, Lutalo's arguments that he should be removed
from
the
MCU
because
he
can
only
be
held
in
administrative
segregation following due processes that he did not receive are
without
merit,
because
Lutalo
is
not
being
held
in
administrative segregation. (Ab13-Ab19).
Lutalo argues that his membership in the Black Liberation
Organization and the Anarchist Black Cross Foundation and his
possession of materials related to these groups can not be the
basis for his placement in the MCU.' (Ab20-Ab29). Lutalo relies
'In support of this argument, appellant relies on
previous decisions by the MCURC which are not the subject of
this appeal. Appellant is appealing the MCURC's May 29, 2008
decision on their routine review of appellant's` MCU placement.
Therefore, the court should disregard appellant's references
to any previous decisions by the MCURC.
heavily
upon
on
Balagun
v.
New
Page 15
Department of
Jersey
Corrections, 361 N.J. Super. 199, 203 (App. Div. 2003). In
Balagun, the Hearing Officer relied on the conclusions of a
senior investigating officer in finding an inmate guilty of
disciplinary infractions. The court held that the Hearing
Officer
failed
to
adequately
explain
his
decision
and
stated that "while an administrative decision is entitled to
deference, we will not perfunctorily review and rubber stamp
the agency's decision." Balagun, supra, 361 N.J. Super. at
203-04.
In
this
matter,
the
MCURC
did
not
rely
solely
on
Lutalo's political affiliations with anti-government groups,
but rather the threatening and disruptive behavior in which
he
engaged
in
furtherance
of
the
views
of
these
organizations, as well as Lutalo's failure to complete any
of
the
necessary
programs
required
for
consideration
of
release from the MCU. (Ra78). The reports of the Special
Investigation Division which describe Lutalo as an active
participant with the Black Liberation Army, the Anarchist
Black
Cross
Committee
Foundation
and
detail
and
his
the
American
activities
Friends
Service
these
subserve
with
groups. (Ra78, Cra3- Cral3). In fact, these reports directly
refute
Lutalo's
claims
that
he
has
not
attempted
to
"proselytize" or "advocate" membership in
these
groups
to
fellow inmates. (Ab29, Cra3-Cral3).
Lutalo remained engaged in recruitment and fund raising
for these anti-government organizations, whose sole purpose
is to
Page 16
overthrow
violence.
legitimate
governmental
(Cra3-Cral3).
agencies
Throughout
his
through
incarceration,
Lutalo has received literature and materials relative to
the purchase of weapons, firearm information and disruptive
tactics such as strikes and guerilla warfare that could be
used during an escape. (Ibid.) Moreover, the investigation
also determined that while Lutalo was incarcerated at NJSP,
he
participated
in
fraudulently
making
a
video
inciting
violence and soliciting money. (Ibid.)
Accordingly,
the
MCRUC
was
appropriately
concerned
by
Lutalo's admitted allegiance to the Black Liberation Army and
the
Anarchist
Black
groups,
resulting
safety
and
incite
violence.
Cross
in
security
Foundation,
behaviors
of
the
Therefore,
which
and
similar
threatened
correctional
the
other
MCURC
facility
has
the
and
properly
continued Lutalo's placement in the MCU.
Lutalo also appears to argue that the MCURC's reliance
upon the material and/or writings to or from
the anti-
government organizations of which Lutalo is a member was
unconstitutional. (Ab28). In support of this argument, Lutalo
relies upon Procunier v.
Martinez,
overruled by Thornburgh v.
Procunier,
the
416
U.S.
396
(1974),
Abbott, 490 U.S. 401 (1989). In
Court
found
unconstitutional
prison
regulations, which "barred writings that `unduly complain'
or
'magnify
grievances,'
express
'inflammatory
political,
racial, religious pr other views,' or are 'defamatory' or
'otherwise
inappropriate."'
Procunier,
supra,
416
U.S.
at
415.
Page 17
Those regulations "invited prison officials and employees to
apply
t h ei r o wn pe rs on a l p re ju d ic es a n d o pi ni o ns a s s ta n da rd s
for
prisoner mail censorship." Ibid.
Conversely, in Thornburgh, the Court upheld as
constitutional
prison
regulations,
which
"generally
permitted]
an
inmate to subscribe to, or to receive, a publication without
prior
approval,
publication
...
but
'if
authorize[d]
it
is
the
determined
warden
to
detrimental
reject
to
a
the-
security, good order, or discipline of the institution or if it
might facilitate criminal activity.'" T h o r n b u r g h , s u p r a , 4 9 0
U.S.
at
419. In
doing
so,
the
Court
recognized that the
constitutional rights of prison inmates "must be
exercised
with
difficult
due
regard
for
the
'inordinately
undertaking' that is modern prison administration.'" Id. at 419,
quoting
Court
Turner
explained
v.
Safley,
that
482 U.S. 78,
"[p]rison
85 (1987).
officials
may
The
conclude
that certain proposed interactions [between outside people
and/organizations
innocuous
to
with
inmates],
laymen,
have
though
seemingly
potentially
significant
implications for the order and security of
the prison."
Thornburgh, supra, 4 9 0 U . S . at 4 0 7 .
The Court
further acknowledged that "the judiciary is 'ill equipped' to
deal with the difficult and delicate problems of prison
management" and
that the Court "has afforded considerable deference to
the
determinations of prison administrators who, in the interest of
Page 18
security, regulate the relations between prisoners and the
outside world." Id. at 407-08, citing Turner, supra, 482
U.S. at 404-05.
As articulated in Thornburgh, 'the MCURC determined that
the
material
Lutalo
received
from
the
anti-government
organizations to which he is a member are inappropriate and
not authorized for retention on "the basis of their potential
implications for prison security." Id. at 416. Throughout
his
incarceration,
materials
relative
Lutalo
has
to
purchase
the
received
of
literature
weapons,
and
firearm
information and disruptive tactics such as strikes and guerilla
warfare, all of which could be used to as an attempt to
escape and/or to jeopardize the safety and security of the
prison.
(Cra3-Cral2).
Accordingly,
the
MCURC
rightly
considered the nature of the materials possessed by Lutalo in
determining the appropriateness of continuing his placement
in the MCU.
Finally,
liberty
an
interest
inmate
in
has
no
remaining
constitutional
in
any
protected
particular
custody
status, and therefore, no due process rights regarding his
placement
in
restrictive
custody
as
long
as
that
custody is within the parameters of his sentence. Sandin v.
Conner, 515 U.S. 472 (1995); White v. Fauver, 219 N.J. Super.
170
(App.
Div.
1987).
Instead,
Lutalo
has
limited
due
process rights granted to him by the regulations contained
in the New Jersey Administrative Code. See Layton v. Beyer,
953 F.3d 539 (3rd Cir. 1992). Those rights are limited to
the scope of rights granted by regulation.
Page 19
The
contained
applicable
at
regulations
N.J.A.C.
for
10A:5-2.10,
MCURC
et
hearings
seq.
Pursuant
are
to
N.J.A.C. 10A:5-2.10(a), an inmate placed in the MCU must be
reviewed every three months. In this case, the MCURC had
previously reviewed Lutalo's case on March
scheduled
the"
next
hearing
for
May
5, 2008,
2008.
and
(Ra29).
Therefore, he was routinely reviewed. A written record of the
proceedings was maintained by the MCU pursuant to N.J.A.C.
10A:5-2.10(b).
In
addition,
Lutalo
was
afforded
the
opportunity to appear and make a statement on his own behalf
although he declined
to do so, pursuant to N.J.A.C. 10A:5-2.10(c).
(Ra78).
As for the remaining requirements of this Code section,
the MCURC properly considered Lutalo's records pursuant to
N.J.A.C.
10A:5-2.10(e), as discussed above. Thus, Lutalo
received all the process due to him.
Pag
e 20 CONCLUSION
For
dismissed
the
reasons
because
administrative
Department's
stated
appellant
remedies,
final
agency
or
above,
the
failed
in
the
decision
to
appeal
to
should
be
exhaust
his
alternative,
the
continue
Lutalo's
placement in the MCU should be affirmed.
Respectfully submitted,
ANNE MILGRAM
ATTORNEY GENERAL OF NEW
JERSEY
By:
Su
Deputy Attorney General
cspmail@dol.lps.state.nj.us
Melissa H. Raksa
Assistant Attorney General
Of Counsel
c: Ojore Lutalo, #59860/901548, New Jersey State Prison
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Respondent
Letter
Department
Brief
of
and
Appendix
Corrections
op
in
Respondent's Motion to Dismiss the Appeal
Behalf
Support
for
of
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10
Braeburn Drive
Princeton, New Jersey 08540
qi)„VA)Y-atQ., Burnette
D. Bussey
Dated:
February 20, 2009
CERTIFICATION OF MAILING
At
the
direction
of
Susan
M.
Scott,
Deputy
Attorney General, I hereby certify that the original and five
(5) copies of a
Letter
Respondent
Department
Respondent's
Motion
to
Brief
of
and
Appendix
Corrections
Dismiss
the
Appeal
op
in
for
Behalf
Support
of
of
Appellant's
Failure to Exhaust Administrative Remedies and on the Merits
of the Appeal, Confidential Appendix and Certification of
Mailing were filed with the Clerk of the Superior Court of
New Jersey, Appellate Division and that two copies have been
sent by regular mail to:
Bruce I. Afran,
Esquire 10 Braeburn
Drive
Princeton, New Jersey 08540
q---\\PMA
Burnette D. Bussey
Dated:
February 20, 2009
BRUCE I. AFRAN
10 Braeburn Drive
Princeton, New Jersey 08540
609-924-2075
Attorney for Appellant
^