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Miller v. New Jersey Dep't of Corrections

June 28, 2007

JOSEPH MILLER, PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Agency Decision of the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2007

Before Judges A. A. Rodríguez and Collester.

Joseph Miller, an inmate currently incarcerated at South Woods State Prison in Bridgeton, appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.202, possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On December 30, 2005, Miller was incarcerated at Northern State Prison in Newark. On that day a random search was conducted of the cell he shared with his cellmate, Andre Dyer. Senior Correction Officer Dawn Grant discovered between two foot lockers an altered toothbrush with two razor blades melted into the plastic handle to form what is known in prison as a "shank." The following day the charge was personally delivered to Miller by Sergeant James Slaughter. Miller claimed he was not guilty of the charge and had no knowledge of the instrument found in the cell. Slaughter also interviewed Dyer, who stated that the weapon belonged to Miller. The matter was then referred to courtline. Miller requested and received the assistance of a counsel substitute.

The courtline hearing began on January 3, 2006, but was postponed for a psychological evaluation report. Subsequently, it was again postponed on Miller's request to submit written questions to cross-examine Correction Officer Grant and Sergeant Joseph Marino. Miller also requested and obtained written statements from three inmates as witnesses. One wrote that he knew nothing about the incident. The second stated that he knew Miller for over four years and did not believe that the weapon belonged to him. The third wrote that Miller had no problems with anyone in the prison unit so that he had no need for a shank. Miller's own statement at the hearing as reflected in notes from the hearing officer was as follows: "I've been down 18 years. Between the two lockers. It was my cellmate's property, not mine." Miller's counsel substitute stated: "Please show leniency and give no more time than cellmate if case is found guilty."*fn1

Hearing Officer Earlie-Colay adjudicated Miller guilty of disciplinary charge *.202, adding that, "Inmate shared cell with inmate Dyer, A., and both are responsible for items in their cell." The sanction imposed was fifteen days detention with credit for time served, 180 days administrative segregation, and 180 days loss of commutation time. Miller was also referred for a psychological evaluation. The hearing officer noted the following reasons: "Inmate's record of explanation noted. C-1 [confidential psychological evaluation] also noted. Sanction imposed to deter inmates from possession of illegal contraband, in addition [to] remind inmates they are responsible for items in their cell."

Miller filed an administrative appeal, and on January 28, 2006, the assistant superintendent upheld the decision stating: "There was compliance with the N.J.A.C. Title 10A on inmate discipline, which prescribes procedural safeguards. The decision of the hearing officer was based on substantial evidence." This appeal followed.

Miller argues the following points on appeal:

POINT I -- THE CONDUCT OF PLAINTIFF'S DISCIPLINARY HEARING BY THE DEFENDANTS DENIED HIM THE DUE PROCESS OF LAW.

1. COMPLIANCE WITH STATE DISCIPLINARY PROCEDURES.

2. DENIED REQUEST FOR POLYGRAPH.

3. DENIED REQUEST FOR ...


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