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Gerrard v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 7, 2008

THOMAS J. GERRARD, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2008

Before Judges Lisa and Lihotz.

In this prison disciplinary appeal, inmate Thomas J. Gerrard appeals from a final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited acts .701, unauthorized use of mail or telephone and .702, unauthorized contacts with the public in violation of N.J.A.C. 10A:4-4.1(a). Gerrard admits he used the inmate personal identification number (IPIN) of another inmate to call the inmate's grandmother. According to Gerrard, his friend, Rahee White, requested Gerrard call White's grandmother to explain that White was in detention for possessing a photograph of a female corrections officer and would be transferred to another prison. After Gerrard's call, White's relative visited the prison and expressed concern for White's safety prompting an investigation and transfer of the female guard.

During the proceeding before Hearing Officer (HO) Morales, Gerrard requested and was permitted confrontation of Investigator Gregory Riggs. Gerrard's examination challenged whether inmates were informed that one inmate is prohibited from using the IPIN of another, with permission.

HO Marales determined Gerrard was guilty of both offenses and recommended sanctions of fifteen-days' detention, ninety-days' administrative segregation, sixty-days' loss of commutation credit, and ninety-days' loss of phone privileges. Assistant Administrator Davis upheld the HO's determination and sanctions.

On appeal Gerrard presents these arguments for our review:

POINT ONE

DEPARTMENT OF CORRECTIONS VIOLATED THE ADMINISTRATIVE PROCEDURES ACT N.J.S.A. 52:14B IN DETERMINING APPELLANT'S GUILT TO A NONEXISTENT RULE AND IN DOING SO VIOLATED APPELLANT'S DUE PROCESS RIGHTS UNDER THE NEW JERSEY CONSTITUTION AND THE U.S. CONSTITUTION.

POINT TWO

APPELLANT WAS DENIED A FAIR HEARING AND DUE PROCESS UNDER THE FOURTEENTH AMENDMENT WHEN THE HEARING OFFICER DETERMINED GUILT ABSENT SUBSTANTIAL CREDIBLE EVIDENCE THAT APPELLANT VIOLATED ANY WRITTEN RULE.

POINT THREE

DEPARTMENT OF CORRECTIONS UPHELD A SANCTION ABSENT SUBSTANTIAL CREDIBLE EVIDENCE THAT APPELLANT VIOLATED ANY PUBLISHED RULE IN VIOLATION OF THE U.S. CONSTITUTION AMENDMENT FOURTEEN.

We have reviewed defendant's arguments and considered the submissions of both parties, in light of the record and applicable law, and we find the arguments advanced by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We present these limited comments.

When entering the custody of the DOC, each inmate receives a copy of the Handbook on Discipline and is advised in writing of those acts and activities, which are prohibited. N.J.A.C. 10A:4-2.1(a). Additionally, at the time of admittance, each correctional facility provides prisoners with a copy of the Inmate Handbook, which contains the facility's rules and procedures. N.J.A.C. 10A:4-2.1. Memoranda updating prison policy and providing instructions to inmates regarding procedures are periodically distributed. DOC's policies expressly state that each prisoner must use his assigned IPIN to place a telephone call. Gerrard ignored this when he used White's IPIN. Further, Gerrard's use of White's IPIN did not properly identify him as the one placing the collect call to White's family.

We reverse an agency decision only when it is arbitrary, capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The adjudication of guilt here meets none of those requirements for reversal. Also, we discern no departure from due process requisites. N.J.A.C. 10A:4-9.1 to -9.28; McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 217 (1995); Avant v. Clifford, 67 N.J. 496, 528-29 (1975).

Affirmed.

20080307

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