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Lutalo v. Dep't of Corrections

August 24, 2007

OJORE LUTALO, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges C.S. Fisher and Grall.

Appellant Ojore Lutalo is an inmate incarcerated at New Jersey State Prison in Trenton. He is serving a forty-year sentence, twenty years of which he was required to serve without possibility of parole. He appeals from final decisions of the Department of Corrections (Department) finding him guilty of disciplinary infractions, N.J.A.C. 10A:4-4.1(a). We affirm in part and reverse in part.

On May 19, 2005, Lutalo was charged with possession of flyers, a card, a catalog, a magazine, paperback books and photos of machine guns and rifles that the Department alleged were related to a security threat group (STG). The materials were forwarded to the Department's Special Investigation Department (SID), but its officers determined that the materials did not qualify as STG materials. Lutalo was found not guilty.

Lutalo's cell was searched again on June 1, 2005 and additional written materials, including handmade posters in various stages of completion and a bag containing newspaper clippings used to produce the posters, were seized. Based on possession of the materials seized in May and June, on June 10, 2005, Lutalo was charged with disciplinary infraction *.803/.206, attempting, aiding or planning conduct that disrupts or interferes with the security or orderly operations of the correctional facility. On July 11, 2005, he was found guilty and received a sanction of 15 days' detention, 365 days' administrative segregation and 365 days' loss of commutation credit. On July 14, 2005, his administrative appeal from that determination was denied and the finding of guilt and sanction were upheld.

On August 5, 2005, Lutalo was charged with the following additional infractions: *.704, perpetrating fraud, deceptions, confidence games, riots or escape plots; .705, operating a business or non-profit enterprise without approval of the Superintendent, and .706, soliciting funds or contributions except as permitted by the Administrator. On August 29, 2005, Lutalo was found guilty of all three charges and received a sanction equivalent to time he had served pending adjudication of the charge. In addition, he was required to forfeit funds deposited in his account and his typewriter and its ribbons. On September 1, 2005, his administrative appeal was denied and the finding of guilt and sanction were upheld.

Lutalo filed a notice of appeal from the July 14 and September 1, 2005 final decisions on March 2, 2006. On March 20, 2006, this court granted Lutalo leave to file the appeal as within time. After he filed his brief on the merits, the Department moved for a remand to permit further review of the *.803/.206 charge. That motion was initially denied but subsequently granted on the Department's motion for reconsideration. On remand, a hearing officer reviewed the evidence and concluded that the charge should be downgraded from *.803/.206, attempting, aiding or planning conduct that disrupts or interferes with the security or orderly operations of the correctional facility, to .210, possession of materials not authorized for retention. The officer went to Lutalo's cell in a "close custody housing unit," spoke to him at his cell door and "advised him that the charge had been downgraded to OTSC [an on-the-spot correction] with a sanction of confiscation." Subsequently, this court granted the Department's motion to supplement the record with the hearing officer's report and reserved decision on the Department's motion to dismiss Lutalo's appeal from the *.803/.206 charge as moot.

Lutalo, who is represented on this appeal, raises the following arguments:

I. THE JUNE [2005] AND AUGUST 2005 DISCIPLINARY SANCTIONS MUST BE VACATED BECAUSE THEY WERE NOT BASED ON SUBSTANTIAL EVIDENCE THAT MR. LUTALO COMMITTED A PROHIBITED ACT AND VIOLATED PRINCIPLES OF FAIRNESS.

II. MR. LUTALO'S JUNE 2005 DISCIPLINARY SANCTIONS, BASED IN PART ON HIS POSSESSION OF ITEMS THAT FORMED THE BASIS OF HIS MAY 2005 DISCIPLINARY CHARGE, VIOLATED PRINCIPLES OF FUNDAMENTAL FAIRNESS.

III. DISGUISED AS DISCIPLINE FOR REGULATIONS VIOLATIONS THE ACTIONS HERE IMPROPERLY DEPRIVE MR. LUTALO OF EXPRESSIVE RIGHTS.

The issue raised in Point II of Lutalo's brief lacks sufficient merit to warrant more than the brief comment that follows. See R. 2:11-3(e)(1)(E). Neither the law nor the record supports the claim. Because "[p]rison disciplinary hearings are not part of a criminal prosecution, Wolff v. McDonnell, 418 U.S. 539, 556[,] 41 L.Ed. 2d 935, [951,] 94 S. Ct. 2963[, 2975] (1974), and therefore do not implicate double jeopardy concerns, see Breed v. Jones, 421 U.S. 519, 528, 44 L. Ed. 2d 346[, 354-55,] 95 S.Ct. 1779[, 1785] (1975) (application of the double jeopardy clause is limited to proceedings which are 'essentially criminal')." Lucero v. Gunter, 17 F.3d 1347, 1351 (10th Cir. 1994). The Department issued the June charges after a second search of Lutalo's cell and confiscation of additional materials adequate to support the charge. Thus, the infraction was based, at ...


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