May 31, 2007
LOUIS MARRERO, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 24, 2007
Before Judges Skillman and Holston, Jr.
This is the appeal of Inmate Louis Marrero from the May 9, 2006 disposition of disciplinary appeal by the administrator of South Woods State Prison. The administrator upheld the May 8, 2006 decision of the hearing officer (HO), who after a disciplinary hearing found appellant guilty of a violation of prohibited act *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, contrary to N.J.A.C. 10A:4-4.1. The HO imposed and the administrator upheld a sanction of fifteen days detention, 120 days loss of commutation credit and 120 days of administrative segregation.
After Marrero filed his notice of appeal with this court on May 25, 2006, we granted, on October 17, 2006, the Department of Correction's (DOC) motion for remand, in light of our holding in DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006),*fn1 to allow the HO to consider Marrero's claim of self defense. At the rehearing held December 5, 2006, statements requested by Marrero from inmates Alfano, Mungro, Owens, Montanez and Sergeant Goslin were considered by the HO. The HO, based on Marrero's own statement, concluded that a "self defense argument was not supported or requested from inmate Marrero." After reviewing all the evidence presented by the reporting officers and Marrero, the HO again adjudicated Marrero guilty of the infraction and reimposed the previously imposed sanctions.
The May 4, 2006 disciplinary report of Senior Corrections Officer (SCO) Harris states, "On . . . 5/4/06 at approximately 7:40 p.m., this officer observed inmates Marrero and Montanez arguing in dayroom 1136. I went to the dayroom to remove the inmates and Inmate Marrero stated that he would have his (Muslim brothers) take care of Inmate Montanez." A May 5, 2006 investigative report by Sergeant Ballurio indicates that Marrero pleaded not guilty and claimed he had been previously threatened by Montanez. However, Ballurio concluded that "Marrero's comment witnessed by SCO Harris would warrant the charge."
At the May 8, 2006 disciplinary hearing, Marrero stated that for several weeks he had voiced complaints to prison authorities about inmates in his cell smoking and talking when he was trying to pray, which got to the point where they were threatening him. After he put in a grievance form, Montanez learned Marrero had written requests against him and "got into his face." Marrero stated that when he complained to SCO Harris,
[Harris] told him to go to the dayroom where "Montanez came in with 12 guys from Latin King and surrounded me and they tried to resolve the problems too many gang members and we left the room and he said what are you going to [do] get the Muslims and officer singled out Montanez and me . . . it seems Montanez keeps picking on Muslims they apparently picked me out to be picked on and officer picked me because of remedys written when in fact I was the one being threatened."
At the disciplinary hearing, Marrero's counsel substitute stated that Marrero went to SCO Harris three times and asked to speak to the sergeant about Montanez. Counsel substitute also argued that although Marrero denied making the statement "that statement does not rise to [the level] of [a] threat and requests leniency."
In finding Marrero guilty of the infraction, the HO considered Marrero's statement and that of his counsel substitute. However, the HO determined that SCO Harris' eyewitness report, along with Sergeant Goslin's report, supported the charge. Sergeant Goslin's report stated that Harris called Goslin via radio at 7:50 p.m. and told him Marrero and Montanez were involved in a heated dispute in the dayroom and that Harris told him that when Harris questioned the inmates, Marrero stated, "I'll get my Muslim brothers and take care of this." The HO further noted that witness statements did not support Marrero's claim of being surrounded or threatened by Montanez. Those statements were from inmates Alfano, Mangro and Owens. Alfano's statement read, "I have no knowledge of any incident or event concerning an inmate by the name of Marrero, or anything that occurred on May 4, 2006 [at the dayroom]." Mangro wrote: "Reference to an incident on May 4th 2006 at app. 7:40 p.m. didn't see or hear anything." Owens, a paralegal in the law library, reported:
On 5-4-06 at approximately 1:15 p.m. I was in the law library when the above reference I/M approached me about advice on how to resolve a problem with his cell-mate's smoking in the cell. I advised him to speak with his housing officer and then if necessary the Unit Sgt. I further advised him not to get into a confrontation with the guy's in his cell, because it would not be worth the trouble.
After adjudicating Marrero guilty of prohibited act *.005, the HO imposed the sanction of fifteen days detention, 120 days loss of commutation time, and 120 days administrative segregation. The HO's reason for the sanction was that Marrero had two previous disciplinary charges, one of which was a weapons charge. The HO stated: "Inmate capable of carrying out threat and must be deterred."
In Marrero's appeal to the prison administrator, Marrero claimed he had been the subject of prior threats by Montanez arising from Montanez and other inmates smoking in his four man cell while Marrero was praying. Marrero further wrote the administrator:
At no time did I ever say that my [M]uslim brother's would take care of the matter. It was inmate Montanez who uttered to me, "what are you going to [do,] get the [M]uslims?" This charge did not rise to the level of a threat. The hearing officer used charges from a prior bid as her reasons for not giving me any consideration. Since I have returned back, I have not received any charges (2-years). Please take into consideration my good disciplinary adjustment as well as my progress reports.
In the administrator's May 9, 2006 disposition of disciplinary appeal, the administrator upheld the decision of the HO and made the following determination: "I have reviewed your request for leniency, as well as the entire charge package. I find no misinterpretation of the facts and no compelling reason to amend the sanction. Sanction is proportionate to the offense, appeal is denied."
At the remand hearing, pursuant to DeCamp, Marrero again denied that he was guilty of the prohibited act charged. He stated that after SCO Harris told him to go to the dayroom, he told Harris that he wanted "to go get my Sahih Muslim Book." Montanez came into the dayroom along with several other inmates. At that time "Muslim Mangro" got into an argument with Montanez, which Harris observed. Marrero claims he then decided to leave the dayspace. He did not intend to "relate any fear to this individual. I just wanted him to understand the prayer [and not to smoke]." Marrero contends that Harris misunderstood what he said and what he, in fact, said was "I wanted to engage with fellow Muslims and others there and authorities about my concerns about daily worship. Officer thought I said I am going to go get the Muslims - this statement does not constitute a threat of fear."
In addressing our admonition in DeCamp that, "[w]hen an inmate raises self-defense as an issue, the [HO] must consider this defense, and make specific findings in support of his/her ultimate conclusion," 386 N.J. Super. at 631, the HO summarized Marrero's position as follows:
[T]he department wants me to plead to self defense. I am not pleading to that because I am not guilty. . . . I am 50 years old.
I am not a thug and I have an excellent record. I was there 2 years charge free and request [you] consider that as I see it there was no evidence that I made a threat against this individual and requests [you] exonerate me because [my] intent was not to harm anyone and am not capable of such a thing.
The HO relied on the following "summary evidence" in re-adjudicating Marrero guilty:
D4 Inmate's remedy form filed 4/26/06 complains about smoking in cell loud talking - no mention of any threats. D5 Note inmate submitted a citizen's complaint against Montanez July 7, 2006 - long after the alleged threat from Montanez, 5/4/06. D6 Montanez statement requested by IM he says he was arg[u]ing with Marrero because he would not give him his space in the 4 man cell then he went into the dayroom and started talking to his Muslim brothers about jumping him. In the dayroom in front of him he told his Muslim brothers that he is tired of Montanez and he does not want him in the room anymore and that he wanted them to help him jump him. D7 Sgt. (Housing Sgt.) report at no time did inmate Montanez or Marrero approach him concerning threats or problems with [each] other prior to the incident on 5/4/06. D8 Inmate remedy form of 4/11/06 also complains of smoking - no mention of threats or harassment from Montanez. Inmate's claims of being threatened are not supported. Inmate was witnessed threatening another inmate. Substantial evidence to support charge - Self defense not supported or requested from inmate.
In reimposing the sanctions previously imposed the HO stated as her reasons: "Threats must be deterred. Inmate capable of carrying out threat. Note prior 306, 267, 202 weapon and 004 fighting charges on the record."*fn2
Appellant presents the following arguments for our consideration:
LACK OF COMPLIANCE WITH DEPARTMENTAL STANDARDS ON INMATE DISCIPLINE PURSUANT TO N.J.A.C. 10A:1.
A MORE THOROUGH REVIEW OF THE SEQUENCE OF EVENTS THAT GIVE RISE TO THIS APPEAL WILL DEMONSTRATE THAT APPELLANT'S BEHAVIOR NEVER ROSE TO THE LEVEL OF ANY THREAT TO CAUSE DISRUPTION OF THE ORDERLY RUNNING OF THE INSTITUTION.
SOUTH WOODS STATE PRISON DOES NOT ALLOW COUNSEL SUBSTITUTE TO ADEQUATELY PREPARE IN THE PRESENTATION OF INMATE'S DEFENSE AS OUTLINED IN N.J.A.C. 10A:4-9.12, THEREBY VIOLATING DUE PROCESS.
THERE WAS A MISINTERPRETATION OF THE FACTS ON THE PART OF THE DISCIPLINARY REPORTING OFFICER FOR FAILURE TO REPORT THAT APPELLANT'S STATEMENT WAS TO "RETRIEVE BOOKS," WHICH NEVER RAISED TO THE PROTOCOL OF BEING CONSIDERED A THREAT, THEREBY DENYING A PROPER INVESTIGATION AS OUTLINED IN N.J.A.C. 10A:9-5.
THE COURTLINE HEARING OFFICER'S AGGRAVATING FACTORS WERE BASED SOLELY ON CHARGES RECEIVED DURING THE MONTHS OF APRIL AND OCTOBER OF THE YEAR 2000, DURING A PRIOR SENTENCE, WHICH THE APPELLANT SERVED THE MAXIMUM TERM.
ADJUDICATION WAS NOT BASED ON SUBSTANTIAL EVIDENCE AS OUTLINED IN N.J.A.C. 10A:4-9.15. POINT VII.
BEING A "NON-SMOKER," APPELLANT WAS BEING FORCED TO ENDURE "PASSIVE" EXPOSURE TO TOBACCO SMOKE, AT THE RISK OF HIS HEATH, IN A FACILITY WHERE SMOKING HAS BEEN PROHIBITED INDOORS.
WHILE OFFICERS HAD KNOWLEDGE OF PRISONERS CONGREGATING IN THE HOUSING UNIT, IN UNAUTHORIZED ROOM AREAS, AND THAT WHILE THERE HAD BEEN ASSAULTS ON THE UNIT, THEY WERE NEGLIGENT WITH "DELIBERATE INDIFFERENCE" TOWARDS THE APPELLANT'S RIGHTS.
APPELLANT SHOWED THERE WAS A PERVASIVE RISK FROM OTHER PRISONERS IN HIS SUBMISSION OF REQUEST AND REMEDY FORMS BY SPEAKING TO THE UNIT'S DAY SHIFT OFFICER, HOUSING SERGEANT, AND BY INFORMING OFFICER L. HARRIS, JR., AT THREE DIFFERENT TIMES.
HEARING OFFICER ERRED WHEN SHE FAILED TO CONSIDER THAT OFFICER L. HARRIS, JR. MAY HAVE BECOME APPALLED AND IRRITATED BY THE MERE FACT THAT A MUSLIM PRISONER WAS REQUESTING TO SPEAK TO THE SERGEANT IN CHARGE. THE HEARING OFFICER FURTHER EXHIBITED BLATANT EPISODES OF BIAS AND PREJUDICE WHEN SHE STATED IN HER REASONS FOR SANCTIONS THAT INMATE WAS CAPABLE OF CARRYING OUT THREAT AND MUST BE DETERRED. POINT XI.
ALTHOUGH THE COURT REQUIRES THAT PRISON OFFICIAL "SHOW 'DELIBERATE INDIFFERENCE' TO PRISONERS, IN ORDER TO BE LIABLE FOR FAILURE TO PREVENT HARM [THIS REQUIREMENT] IS SATISFIED BY SOMETHING LESS THAN ACTS OR OMISSIONS FOR THE VERY PURPOSE OF CAUSING HARM OR WITH KNOWLEDGE THAT HARM WILL RESULT."
PRISON OFFICIAL DOES NOT ESCAPE LIABILITY IF EVIDENCE SHOWS HE MERELY REFUSED TO VERIFY UNDERLYING FACTS THAT HE STRONGLY SUSPECTED TO BE TRUE OR DECLINED TO CONFIRM INFERENCES OF RISK THAT HE STRONGLY SUSPECTED TO EXIST. POINT XIII.
THE APPELLANT'S RIGHT TO BE PROTECTED FROM VIOLENCE DOES NOT REQUIRE THAT HE BE ACTUALLY ASSAULTED, HE NEED ONLY TO SHOW A PERVASIVE RISK FROM OTHER PRISONERS.
APPELLANT STATES THAT OFFICER L. HARRIS, JR. EXERCISED EXTREME BIAS AND WANTON PREJUDICE REPUGNANT TO THE CONSCIENCE OF MANKIND WITH A DEFAMATION OF CHARACTER WHEN HE "POINTED AT THE APPELLANT AND CALLED HIM BIN LADEN."
SANCTIONS IMPOSED FAR EXCEEDED THE LIMITS AS OUTLINED IN N.J.A.C. 10A:1, WITHOUT SUBSTANTIAL EVIDENCE FOR ADJUDICATION.
THERE IS NO SUBSTANTIAL EVIDENCE TO SUSTAIN THE ARBITRARY DECISION BY THE COURTLINE HEARING OFFICER AND AS UPHELD BY THE ASSISTANT ADMINISTRATOR AT SOUTH WOODS STATE PRISON.
In his reply brief, appellant presents the following additional arguments for our consideration:
VIOLATION OF APPELLANT'S DUE PROCESS RIGHTS, RESPONDENT CONTINUES TO DEMONSTRATE A FAILURE TO SATISFY THE REQUIREMENTS FOR A FINDING OF GUILT CONCERNING APPELLANT'S *.005 CHARGE.
MISINTERPRETATION OF THE FACTS ON THE PART OF THE REPORTING OFFICER AND THE HEARING OFFICER.
RISK OF HARM TO PRISONERS FROM PASSIVE EXPOSURE TO TOBACCO SMOKE.
A SUBJECTIVE APPROACH TO DELIBERATE INDIFFERENCE DOES NOT REQUIRE A PRISONER SEEKING 'A REMEDY' FOR UNSAFE CONDITIONS [TO] AWAIT A TRAGIC EVENT [SUCH AS] AN ACTUAL HARM OR ASSAULT BEFORE OBTAINING RELIEF. HELLING, SUPRA, 509 U.S. AT 33-34. POINT V.
MISCARRIAGE OF JUSTICE AND CONFLICT OF INTEREST.
INAPPROPRIATE LABELING, DEFAMATION OF CHARACTER AND SLANDER.
Marrero contends that the DOC failed to comply with the administrative code during the investigation and subsequent hearing on the *.005 charge against him. Specifically, Marrero asserts that substitute counsel was denied adequate time to prepare. He contends investigation into the alleged threat was faulty because it was based on a misinterpretation of facts. He claims the HO relied on prior disciplinary charges in finding him guilty and that the HO's finding did not consider exculpatory or exonerating evidence. He asserts possible anti-Muslim bias on the part of the officers and that the HO's findings lack substantial credible evidence.
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to limited procedural protections prior to being subjected to disciplinary sanctions, which are articulated in Avant, id. at 525-33, and which have been reaffirmed by the Supreme Court in McDonald v. Pinchak, 139 N.J. 188, 192 (1995). We are satisfied, after a thorough review of the record, that the Avant/McDonald procedural protections were met and that Marrero was offered all of the procedural protections to which he was due.
Pursuant to N.J.A.C. 10A:4-9.12, an inmate charged with an asterisk offense must be afforded counsel substitute. Because the charge against Marrero was an asterisk offense, he was afforded the assistance of counsel substitute during the hearing.
Marrero now questions the effectiveness of his counsel substitute and argues that his counsel substitute was not permitted an adequate amount of time to prepare his defense. However, Marrero had twenty-four hours after the delivery of his charge before the commencement of the first adjudication hearing to prepare, which is the amount of preparation time required by N.J.A.C. 10A:4-9.2. Furthermore, neither Marrero nor his counsel substitute requested additional time to prepare. Had additional time been requested, the HO would have had the ability to consider the request and order any necessary postponements. In addition, the DeCamp remand hearing was not completed until December 5, 2006, seven months after the delivery of the disciplinary charge. Thus, Marrero and his counsel substitute received adequate time to prepare prior to the hearing on a potential claim of self defense. Indeed, the initial rehearing date of November 21, 2006 was postponed in order to obtain additional witness statements. See N.J.A.C. 10A:4-9.9.
Marrero further contends that a misinterpretation of facts by SCO Harris on the disciplinary report resulted in a faulty investigation of the incident. However, pursuant to N.J.A.C. 10A:4-9.5, Sergeant Ballurio conducted an investigation within forty-eight hours of the disciplinary report being served on Marrero by a supervising officer. After completing a factual investigation, Sergeant Ballurio referred the matter to courtline for adjudication because, in his experience, the comment made by Marrero as witnessed by Harris warranted the "threatening" charge. The HO can request further investigation of a disciplinary charge pursuant to N.J.A.C. 10A:4-9.6. However, the HO reviewed the investigation and determined further investigation of the charges was not warranted. The investigation report was properly written and a basic understanding of the incident was set forth. We are satisfied, therefore, that Marrero's argument that the investigation was faulty is without merit.
Marrero's case was heard by an HO who was a member of the Department's Central Office staff. Thus, Marrero was provided an impartial tribunal. At the hearing, both Marrero and his counsel substitute were permitted to make statements on Marrero's behalf. The record indicates that Marrero's statement was taken into consideration by the HO. Marrero requested statements from inmates Alfano, Mangro, Owens, Montanez and Sergeant Goslin during the adjudication process. Marrero declined the opportunity for in-person confrontation during the investigation and adjudication. Marrero pleaded not guilty to the *.005 charge and argued in his defense that he was subjected to threats and harassment by Montanez in the past because of his Muslim faith and the corrections' staff failed to respond to his complaints. Marrero further asserted that Harris had misinterpreted the statement he made to be a threat. Finally, Marrero stated he had an excellent institutional record and was innocent of the charges. Thus, Marrero was permitted to fully explain to the HO his version of the events leading up to his being cited with the *.005 disciplinary infraction. Marrero and counsel substitute were shown the adjudication report and counsel substitute's signature on line sixteen acknowledges that the information contained on lines one through fifteen accurately reflects what took place at the disciplinary hearing.
Marrero also claims that the HO used prior disciplinary charges as "aggravating factors" in finding him guilty of the disciplinary charge. However, while the HO did consider his past history of correctional facility adjustment in determining the appropriate sanctions pursuant to N.J.A.C. 10A:4-9.17, the prior adjudications were not mentioned in the summary of evidence considered by the HO in finding Marrero guilty. We are satisfied Marrero was adjudicated guilty on May 8, 2006 based on substantial credible evidence that he threatened Montanez as contained in the statement of SCO Harris and the investigating report of Sergeant Ballurio, as well as the lack of corroborative support of the witnesses of Marrero's version of being threatened by Montanez. We are likewise satisfied that the HO appropriately considered Marrero's past disciplinary history in determining what sanctions to impose.
Marrero also argues that the sanctions he received were excessive and fall outside the parameters established in the administrative code in light of his "exemplary" past disciplinary history. However, a review of Marrero's disciplinary record established that Marrero has received disciplinary charges for several asterisk offenses in the past, including conduct that disrupts the orderly running of the correctional institution, fighting with another person and three charges for possession or introduction of a weapon. Pursuant to N.J.A.C. 10A:4-4.1, "Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions." Thus, Marrero's characterization of his disciplinary history as "exemplary" is not supported by his record. In addition, the sanctions Marrero received do not exceed the fifteen-day limit for time spent in detention, nor the one-year limit for loss of commutation time and administrative segregation prescribed by N.J.A.C. 10A:4-5.1(a).
Marrero further argues that the HO found him guilty on the remand hearing without substantial evidence. Specifically, Marrero asserts that his behavior did not constitute a threat. Marrero additionally contends that the HO failed to consider "exculpatory or exonerating evidence" such as fabricated or biased testimony given by the officers.
Only where an agency's decision is arbitrary, capricious or unsupported by credible evidence in the record may it be reversed. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). An adjudication of guilt of an infraction must be supported by "substantial" evidence. Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald, supra, 139 N.J. 188; Avant, supra, 67 N.J. 496; codified at N.J.A.C. 10A:4-9.15(a). 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."
Our review of the record on remand convinces us that there was sufficient credible evidence in the record to support the finding of guilt as articulated by the HO in the "summary of evidence relied on" section contained in the adjudication of disciplinary charge of December 5, 2006.
On May 4, 2006, while in the dayroom, SCO Harris indicates in his report that he clearly heard Marrero state that, ". . . he would have his (Muslim brothers) take care of inmate Montanez. . ." Regardless of Marrero's explanation of the meaning of this statement, SCO Harris' eyewitness account, along with inmate Montanez' statement that Marrero indicated he was going to get his Muslim brothers to jump him, support the conclusion of the HO that Marrero made a threat.
Additionally, in adjudicating the *.005 charge, the HO provided a clear, concise and complete summary of the evidence that she relied upon in finding Marrero guilty. The HO noted that she relied on SCO Harris' eyewitness report of the threat along with the sergeant's report of the incident. The HO found that two of the witnesses' statements given on Marrero's behalf indicated that they had no knowledge of the incident. A third witness' statement indicated that in response to Marrero's request for advice on how to resolve an issue regarding the smoking habits of his cellmates, Marrero was advised to talk to the sergeant and not to become involved in a confrontation with his cellmates.
Although Marrero denies that he was raising an argument of self defense, he claims that he was threatened by Montanez and his other cellmates prior to the incident in the dayroom on May 4, 2005 and, therefore, he was being threatened by Montanez. In considering Marrero's statement, the HO noted Montanez' statement indicated that he and Marrero argued and Marrero threatened to involve "his Muslim brothers." The HO also noted that the two inmate remedy forms filed by Marrero regarding Montanez and his cellmates and their smoking and interfering with his right to prayer did not mention Marrero's allegation of harassment by his cellmates. Finally, the HO noted that the report of Sergeant Goslin stated that "at no time did inmate Montanez or Marrero approach [him] concerning threats or problems with each other prior to the incident on May 4, 2006." Therefore, the HO concluded, "[i]nmate's claim of being threatened are not supported[.] Inmate was witnessed threatening another inmate[.] Substantial evidence to support charge."
We are satisfied that Marrero's disciplinary hearings comported with the standards of due process and the finding of guilt in the initial hearing before the HO, on administrative appeal to the prison administration and at the hearing on remand were supported by substantial credible evidence. Henry, supra, 81 N.J. at 579. Therefore, the final administrative decision of the Department of Corrections is affirmed.
The remaining arguments raised in Marrero's brief and reply brief are not properly before this court because he failed to raise them below. Neider v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973). Additionally, they are not relevant to the disciplinary adjudication that is the subject of this appeal.