February 20, 2008
JOSEPH BORDLEY, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 14, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Appellant Joseph Bordley appeals the December 19, 2006, final decision of the Department of Corrections affirming the imposition of sanctions. Because substantial evidence in the record supports the finding that appellant committed three disciplinary infractions and was accorded all due process in the disciplinary hearings, we affirm.
On December 2, 2006, a corrections officer observed multiple inmates in the janitor's closet during tier sanitation. He ordered them to leave the closet. Appellant said, "Fuck you motherfucker, we'll fuck you up." The officer called a code and attempted to subdue appellant, but appellant resisted his efforts to handcuff him. A second officer came to assist but appellant continued to punch and kick at both officers. Another inmate became involved in the fracas, assaulting the second officer. Eventually appellant was subdued and he and three officers went to the medical clinic for evaluation, including the first officer. The prison was locked down for approximately four hours as a result of the code and the investigation.
Appellant was charged with two prohibited acts *.002, assault, on the first officer and one prohibited act *.306, disruptive conduct interfering with security or orderly running of the correctional facility. Appellant was served with the disciplinary charges on December 3, 2006, and was read his use-immunity rights. Appellant pled "not guilty" but did not make a statement or request any witness statements that day. The first hearing date was December 4, 2006, but it was postponed because appellant requested witness statements. While before the hearing officer, appellant was again advised of use immunity for criminal proceedings and this time made no plea to the charges.
He declined the opportunity for in-person confrontation of the adverse witnesses. Appellant's counsel substitute asked that the second *.002 "be repetitive" to the first and signed each of the adjudication reports indicating that the information in the report accurately reflected the events of the proceeding.
On December 6, 2006, the hearing officer reviewed all of the evidence and adjudicated appellant guilty of all three disciplinary infractions. The hearing officer combined the sanctions for the *.002 offenses and imposed detention for fifteen days with credit for time served, loss of commutation credit for 365 days and administrative segregation for 365 days. On the *.306 infraction the hearing officer imposed detention for fifteen days, loss of recreation privileges for thirty days, loss of commutation credit for 365 days and administrative segregation for 365 days, all to run consecutively to the *.002 sanctions.
On December 19, 2006, the associate administrator upheld the guilty findings and the sanctions imposed, finding that "[t]here [was] substantial evidence from numerous witnesses that saw [appellant] assaulting other staff members" and that this conduct caused the prison to be locked down. A plea for leniency on December 21, 2006, was also denied and this appeal was filed.
Appellant contends that he was innocent of the infractions charged against him, that there was no evidence of an assault, that he was denied due process when he was tried in absentia on December 6, 2006, that the hearing officer never completed a Form 252, that his signature on his administrative appeal documents was forged, depriving him of the opportunity to participate in the appeal, and that the assistant administrator erred in finding that he assaulted more than one person because he was charged with assaulting only one officer.
The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquires:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. [George Harms Const. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
Accordingly, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't of Human Servs., Div. of Med. Asst., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987)).
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that appellant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
We affirm substantially for the reasons expressed by the agency in its written decisions of December 6, 19, and 21, 2006. The findings and conclusions of the agency are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999). We add only that the assistant administrator's comment that "[t]here was substantial evidence from numerous witnesses that saw [appellant] assaulting other staff members" is a correct statement of the evidence before the hearing officer even though appellant was charged only with two *.002 infractions based on two incidents of assault upon the first officer. The fact that there were assaults on other officers is evidence that supports the *.306 infraction and, thus, we find no error in the denial of the administrative appeal. There was substantial evidence of the assaults on the first officer and the other staff members as well. The record does not support that appellant was tried in absentia on December 6, 2006, or that he was deprived of the opportunity to participate in the appeal. Certainly, the correctional facility would not have filed an appeal on appellant's behalf and if his signature was "forged," the appeal documents were signed on his behalf by his counsel substitute. Thus, he did participate in the appeal through his counsel substitute.
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