On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2006
Before Judges Skillman and Holston, Jr.
These are consolidated appeals from final agency decisions of the Department of Corrections (DOC). Appellant, Inmate (IM) Drew Camarota, appeals from the January 11, 2006 disposition of the DOC adjudicating him guilty of disciplinary infraction .701, unauthorized use of mail or telephone contrary to N.J.A.C. 10A:4-4.1. Appellant also appeals the January 24, 2006 DOC classification decision, resulting from appellant's .701 violation, which changed appellant's custody status from gang minimum to gang medium and removed appellant from his higher paying job as a paralegal to a lower paying janitorial position. We affirm both agency decisions.
On December 15, 2005, at 1:35 p.m., Senior Corrections Officer (SCO) Fawcett observed appellant at the telephone bank at South Woods State Prison. IM Castillo was talking on a telephone. Castillo handed appellant the telephone and SCO Fawcett overheard appellant saying, "who is the team leader." SCO Fawcett concluded that appellant had made an unauthorized use of the telephone by speaking, on the telephone, to a person called by Castillo. Appellant was thereafter charged with disciplinary infraction .701 for unauthorized use of the telephone.
Appellant denied the charge. Appellant contended he made his own call after Castillo completed his call and Castillo simply handed him the telephone. Appellant asserts that his voice would not be heard on an internal affairs tape of Castillo's telephone calls.
After three adjournments, a hearing on the charge was completed by Hearing Officer (HO) Maguire on December 30, 2005.
The December 30, 2005 Adjudication of Disciplinary Charge signed by the HO summarized the evidence relied upon by him in reaching his decision. The HO found that SCO Fawcett saw Castillo hand appellant the telephone and then heard appellant speak into the telephone. The HO determined SCO Fawcett credible and the sequence of events clarified by confrontation answers given by SCO Fawcett at appellant's request. The HO also found that although Castillo's Inmate Personal Identification Number (IPIN) was used to make a call, appellant made no calls using his own IPIN on the day in question. Only Castillo's IPIN was used for the time period in question.
The HO determined that the rules contained in the South Woods State Prison Inmate Handbook clearly indicate inmates are precluded from making third-party calls and that each inmate has a separate IPIN for calls. The HO concluded that it was a clear violation of the IM rules for appellant to be on the telephone during a call that used Castillo's IPIN.
Appellant argues that his adjudication of guilt was not supported by substantial evidence, that the IM handbook does not make the act allegedly committed by him a .701 offense, and that HO Maguire's failure to disqualify himself resulted in him not being provided a fair tribunal.
The South Woods State Prison Inmate Handbook sets forth that each inmate will be issued an IPIN that must be used for making telephone calls out of the institution. Inmates may submit a list of up to ten telephone numbers of family and friends and telephone numbers of two attorneys that will be linked to their IPIN. In order to make a telephone call, an inmate must enter his own IPIN number. The inmate handbook also states, "[t]here may be no third-party . . . calls to any person."
We are convinced, after an examination of the applicable sections of the inmate handbook dealing with telephone usage, that an inmate is prohibited from speaking by telephone with anyone, except for the ten friends and family members and two attorneys contained on the inmate's IPIN list. We are further satisfied that the restriction would be violated if an inmate spoke to someone ...