On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Fall and Yannotti.
Ali Shabazz (Shabazz) is an inmate in the State's correctional system. Shabazz was placed in a halfway house and while there Shabazz was charged with a disciplinary infraction.
Shabazz was returned to prison and thereafter found guilty of using abusive or obscene language to a staff member. Shabazz filed a notice of appeal from that determination and, while the appeal was pending, the Department of Corrections (Department) reconsidered its decision and found that he was not guilty of the charge. However, Shabazz was not returned to the halfway house. He argues that he has a liberty interest in remaining in the halfway house that is protected by the Due Process Clause. We disagree and therefore dismiss the appeal.
We briefly summarize the relevant facts. Shabazz is presently an inmate at a State correctional facility. He is serving a custodial sentence after having been convicted of aggravated assault, unlawful possession of weapons, possession of controlled dangerous substances and receipt of stolen property. At some point during his incarceration, Shabazz was re-assigned to Tremont House, a halfway house facility.
On August 26, 2004, Linda Fulcher (Fulcher), Shabazz's ex-girlfriend, contacted the Tremont House Service Director Qiyyim Abdul Jabbar (Jabbar) and informed him that Shabazz left threatening messages on her answering machine. An investigation followed immediately. Jabbar listened to Fulcher's recorded messages and identified Shabazz's voice. Shabazz was informed of his use immunity rights but he elected not to make a statement at the time. Shabazz was charged with threatening another with bodily harm, which is a prohibited act *.005. See N.J.A.C. 10A:9-2.11(c)(2). Because he was charged with a "major disciplinary violation," Shabazz was returned to prison. N.J.A.C. 10A:20-4.19(d). On August 27, 2004, Shabazz was transferred to the Central Reception and Assignment Facility and later incarcerated at Northern State Prison.
Hearing officer Don Wiater conducted a hearing on the charge on September 8, 2004. Shabazz pled not guilty. Shabazz was informed again of his use immunity rights. Shabazz requested a counsel substitute and one was provided. At the hearing, counsel substitute asserted that Fulcher accused him of making threats because she believed that Shabazz had "neglected" her. Fulcher submitted a letter dated September 1, 2004, in which she stated that her allegations were a lie. Fulcher said:
I was very angry with [Shabazz] for messing around. It is not easy letting go of a twenty year relationship. I am very sorry for what I have caused. If there is anything else that you need or that I need to do, please let me know. Again I am truly sorry.
The hearing officer modified the charge to prohibited act .304, using abusive or obscene language to a staff member. See N.J.A.C. 10A:9-2.11(d)(23). In the adjudication report, the hearing officer noted that, once Fulcher realized that Shabazz could be returned to prison from the halfway house, Fulcher recanted but the hearing officer found that the charge had been proven because Shabazz left a message with abusive language on Fulcher's answering machine. The hearing officer imposed ten days of detention and 60 days loss of commutation time but suspended the latter sanction.
On September 8, 2004, Shabazz filed an administrative appeal. Shabazz denied that he threatened anyone. He asserted that the incident occurred because he was breaking off his relationship with Fulcher. Shabazz noted that the charge had been downgraded to using "bad language" with a staff member but Shabazz stated that Fulcher was not a staff member. Moreover, Shabazz asserted that Fulcher fabricated the story "because she was hurt knowing that I would not take her back." Shabazz said that Fulcher admitted to lying and fabrication. He asked that all charges be dismissed.
On September 8, 2004, the Assistant Superintendent upheld the hearing officer's finding that Shabazz had committed prohibited act .304. He refused to dismiss the charges but modified the hearing officer's decision by reducing the sanctions to 5 days detention ...