Patrick Pantusco v. New Jersey Department of Corrections
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Opinion
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1680-22
PATRICK PANTUSCO,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. __________________________
Argued March 5, 2024 – Decided March 13, 2024
Before Judges Haas and Natali.
On appeal from the New Jersey Department of Corrections.
Patrick Pantusco, appellant, argued the cause pro se.
Dorothy M. Rodriguez, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Janet Greenberg Cohen, Assistant Attorney General, of counsel; Katherine Ellen Chrisman, Deputy Attorney General, on the brief).
PER CURIAM Appellant Patrick Pantusco appeals from the denial of his grievance by
the New Jersey Department of Corrections (DOC) in which he sought back pay,
work credits, and reinstatement to his previous position as a food service worker.
For the following reasons, we remand this matter to DOC for further proceedings
consistent with this opinion.
Appellant is currently incarcerated at Northern State Prison in Newark,
where he is serving a maximum fifty-year sentence, with a thirty-year period of
parole ineligibility for felony murder, aggravated manslaughter, aggravated
assault, robbery, burglary, and theft. See State v. Pantusco, 330 N.J. Super. 424
(App. Div. 2000), certif. denied, 165 N.J. 527 (2000). Beginning in December
2020, appellant was assigned to work in the kitchen seven days per week at a
wage of $3.20 per day. On August 19, 2022, DOC charged appellant with
committing prohibited act *.011, "possession or exhibition of anything related
to a security threat group."
Appellant was thereafter placed in prehearing disciplinary housing
(PHDH). Due to his pending disciplinary charge and relocation to PHDH,
appellant could not report to work, and on September 14, 2022, DOC formally
removed him from his kitchen job. Following hearings on August 24, 2022;
A-1680-22 2 September 9, 2022; and September 21, 2022; a disciplinary hearing officer found
appellant not guilty of prohibited act *.011, concluding it was "unsupported."
Appellant filed a grievance on November 4, 2022, in which he sought back
pay and work credits pursuant to N.J.A.C. 10A:13-4.2(e) for the time he was
placed in PHDH prior to being adjudicated not guilty. The record before us does
not reflect what action, if any, DOC took with respect to this grievance.
Subsequently, on December 8, 2022, appellant filed the grievance subject
to the instant appeal, stating:
I am writing pursuant to N.J.A.C. 10A:13-4.2(e). I submitted an inquiry over a month ago about receiving my back pay and work credits for the time I was not permitted to[] report to work due to being placed on PHDH on [August 19, 2022] through [September 22, 2022] when I was found [n]ot [g]uilty.
The Administrative [C]ode mandates that I receive the pay and work credits for the time I was unable to report to work due to a disciplinary charge for which I was found not guilty. Furthermore, I was taken off of the food[ ]service roster due to being placed on PHDH, but since I was found NOT GUILTY I should be reinstated and begin working on the line again. There is an opening on my unit.
The last inquiry to your office was forwarded to [c]lassification and has been overdue for weeks. I have not been paid in month[.] Please address as soon as possible. Thank you[.]
A-1680-22 3 Having received no response to his December 8 grievance, appellant
submitted an additional grievance on December 16, 2022 requesting the same
relief, to which the DOC responded on December 19, 2022, that the matter was
"referred to Administration for review and any action [was] deemed
appropriate." DOC then closed the December 8 grievance on January 4, 2023,
stating simply "[c]lassification has been made aware of your request."
Appellant administratively appealed the decision the same day, asserting
he was "entitled to the back pay due to being found NOT GUILTY, it is not
discretionary." On January 18, 2023, DOC rejected the appeal, stating only
"[y]our [a]ppeal has been received and the response noted was deemed to be
appropriate. Case closed. Thank you for your concerns." In February 2023,
appellant was assigned to work in tier sanitation five days per week at a rate of
$1.30 per day.
As best we can discern from the record, DOC made the following
payments to appellant relevant to his grievance: $25.20 on September 15, 2022
for eighteen days in August 2022 at $1.40 per day; $41.60 on October 17, 2022
for thirteen days from September 1 to 14, 2022 at $3.20 per day; $18.20 on April
19, 2023 for thirteen days in August 2022 at $1.40 per day; and $137.80 on May
10, 2023 for 106 days between September 2022 and February 2023 at $1.30 per
A-1680-22 4 day. DOC also awarded appellant the following work credits: 6.2 days for
August 2022, 5.4 days for September 2022, 4 days for October 2022, 3.8 days
for November 2022, 4.2 days for December 2022, 4 days for January 2023 , and
3.8 days for February 2023.
Our review of administrative action is "limited." Zimmerman v. Diviney,
477 N.J. Super. 1, 14 (App. Div. 2023). Accordingly, our role is only to
determine "(1) whether the agency's decision conforms with relevant law; (2)
whether the decision is supported by substantial credible evidence in the record;
and (3) whether, in applying the law to the facts, the administrative agency
clearly erred in reaching its conclusion." Conley v. N.J. Dep't. of Corrs., 452
N.J. Super. 605, 613 (App. Div. 2018) (citing In re Stallworth, 208 N.J. 182, 194
(2011)).
"A state agency rendering a final agency decision must explain the
specific reasons for its determination." In re Orban/Square Props., LLC, 461
N.J. Super. 57, 77 (App. Div. 2019). We have previously noted "DOC is not
immune" from the requirement that an agency "adequately set forth its rationale
in support of a final determination." Blackwell v. Dep't. of Corrs., 348 N.J.
Super. 117, 122-23 (App. Div. 2002).
A-1680-22 5 We initially address and reject, for two reasons, DOC's contention that the
appeal is moot because appellant received back pay and work credits. First,
appellant disputes he received all work credits due or that he was compensated
properly at the rate of $3.20 per day, for a seven-day work week. Second, he
argues DOC improperly terminated him from his position in the kitchen and that
he is entitled to reinstatement to that job. We are satisfied from the limited
record these disputed issues have not been resolved and thus the issues on appeal
remain justiciable. See Comando v. Nugiel, 436 N.J. Super. 203, 219 (App. Div.
2014) ("A case is technically moot when the original issue presented has been
resolved, at least concerning the parties who initiated the litigation." (quoting
Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010))).
As to appellant's substantive challenges to the DOC's decision, we
conclude the record before us is wholly insufficient to perform a meaningful
review.
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