On appeal from a Final Agency Decision of the Department of Corrections.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2005
Before Judges Cuff, Parrillo and Holston, Jr.
This prison disciplinary appeal requires us to examine when an administrator should grant an inmate's request for a polygraph examination. We hold that an inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process.
Wilson Ramirez, an inmate currently incarcerated at East Jersey State Prison, appeals the final agency decision of the Department of Corrections (DOC) upholding the decision of the hearing officer finding Ramirez guilty and imposing disciplinary sanctions for committing prohibited acts *.803/*.002, attempting to commit an assault on any person in violation of N.J.A.C. 10A:4-4.1(a). Ramirez was found guilty of the offense and the sanction of fifteen days detention (with credit for time served), 180 days administrative segregation, and ninety days loss of commutation time was imposed.
On January 12, 2005 at approximately 9:00 a.m., Ramirez was sent back from the gym at Bayside State Prison (BSP) for failure to comply with a "written rule or regulation of the correction facility," i.e., having his "ID under his coat." This is known as "on the spot discipline." He was told to report to the housing area. As he was walking to the East Arcade "frisk shack," Ramirez was overheard by Senior Corrections Officer (SCO) Robinson to say, "this is bullshit, these fucking cracker police around here have something coming to them." When SCO Robinson questioned Ramirez about the statement, Ramirez replied, "that's right, I said it, you motherfuckers have something coming." SCO Robinson then ordered Ramirez to turn around and place his hands on the wall. According to SCO Robinson, Ramirez responded to the order by stating, "fuck you," and then came at him with clenched fists. SCO Robinson and SCO Koerner attempted to restrain him, Ramirez resisted, and when ultimately restrained, Ramirez was placed in handcuffs and thereafter charged. Ramirez denied the charge and contended that he did not assault SCO Robinson but had himself been assaulted by the officer.
Ramirez contends that his due process rights were violated during the DOC disciplinary proceedings because (1) he was denied the right to present documentary evidence that would have been exculpatory, namely a videotape of the "frisk shack," and (2) the prison administrator denied his request for a polygraph examination, even though credibility was an issue since the veracity of the charge was his word against that of two officers. Lastly, Ramirez asserts that the hearing officer's decision lacked substantial credible evidence because the decision failed to disclose why the "frisk shack" video was not investigated and why Ramirez was denied polygraph testing.
Ramirez' contention that he was denied his due process right to present documentary evidence lacks merit. The limited due process rights to which inmates of our prisons who are charged with disciplinary infractions are entitled were enumerated by our Supreme Court in Avant v. Clifford, 67 N.J. 496, 525-30 (1975). Among the rights granted by Avant is the limited right to "present documentary evidence in their defense when such procedure will not be unduly hazardous to institutional safety or correctional goals." Id. at 529.
Ramirez contends that a video of the "frisk shack" would show that not only did he not assault SCO Robinson but that he was assaulted by SCO Robinson. We are satisfied that, if there were a videotape of the "frisk shack," the videotape would constitute the type of documentary evidence that Avant indicates an inmate charged with a disciplinary infraction would be entitled to present in his defense. The record, however, confirms that the hearing officer required that the existence of a videotape of the "frisk shack" be investigated and that the hearing officer intended to review it, if a tape had existed. The investigation, however, revealed that the "frisk shack" is not under "video camera watch."
The initial hearing was held on January 14, 2005, but was postponed to determine whether video of the incident existed. A handwritten note dated January 14, 2005 from Hearing Officer Shepperd to Sgt. Chavik reads, "Ramirez states there was a video camera in the frisk area and that this incident is on tape.
Check with BSP to see if a videotape of this incident. If there is one, we need to view it." A note on BSP stationary dated January 14, 2005 from Sgt. Kenney to the hearing officer in reply to the hearing officer's inquiry states, "The frisk shack located in the East Arcade area is not under videocamera watch. This incident (*.803/*.002) was not videotaped. The escort of inmate Ramirez from the holding cell to the transport vehicle in BSP's intake area was done on camera by SID." We are satisfied that Ramirez' due process right to present documentary evidence was fully protected by the hearing officer's efforts to accommodate Ramirez' request for what was determined to be a non-existent videotape of the incident.
We also disagree with Ramirez' second contention that his due process rights were denied when his request for a polygraph examination was denied. On January 18 and 19, 2005, the disciplinary hearing was postponed a second ...