May 7, 2008
PETER TARDIBUONO, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2008
Before Judges Lintner and Alvarez.
Peter Tardibuono, an inmate currently confined at South Woods State Prison, appeals from a determination of the Department of Corrections (Department), finding him guilty of committing prohibited act .254, refusing to work or to accept a program or housing unit assignment, N.J.A.C. 10A:4-4.1(a).*fn1 The Department imposed a sanction of ten days' detention, with credit for time served, sixty days' loss of commutation credit, and ninety days' administrative segregation, suspended for sixty days. On appeal, Tardibuono contends that the hearing officer's decision was not based on substantial credible evidence in the record.
On June 26, 2007, Tardibuono was assigned to an upper bunk. He advised the housing officer that he wanted a bottom bunk because he had medical problems. A June 26, 2007, note from Julie Daly, R.N., indicated that although Tardibuono had a temporary lower bunk restriction for three days in 2004, he did not at the time of the alleged violation have a lower bunk restriction. Because he was unable to provide any documentary medical support, he was ordered to be "locked in." Tardibuono responded, "f--- that I'm not staying here lock me up." Tardibuono was then escorted off the unit, without incident. Tardibuono pled not guilty to the infractions and counsel substitute was appointed.
At the hearing held on July 5, 2007, Tardibuono stated that he suffered from insomnia and had a lower bunk restriction with no expiration date from Central Reception and Assignment Facility (CRAF). Counsel substitute reported that Tardibuono was under the belief that he had a lower bunk restriction that was given to him by the doctor when he first got to the facility. Hearing Officer Kathy Ireland found Tardibuono guilty of the infraction, noting in the Summary of Evidence: "Medical no lower bunk restriction."
Tardibuono filed an Administrative Appeal on July 5, 2007, seeking a plea of leniency. In his explanation, he again claimed that he had been assigned a lower bunk restriction that was not honored by the facility. He also asserted that the incident was minor and the sanctions imposed were disproportionate. Assistant Superintendent Amadu Jalloh upheld the decision of the hearing officer and affirmed the sanctions imposed by the hearing officer. He noted in his decision that Tardibuono "failed to demonstrate to Custody that there was a medical restriction in place for a lower bunk assignment."
On appeal, in support of his argument that the hearing officer's decision was not based on substantial evidence, Tardibuono attaches a Central Reception & Assignment Facility-Main Test Form (Test Form) dated October 28, 2004, noting that Yue Wang, M.D., authorized a Department of Corrections housing restriction, "Lower Bunk Only," for Tardibuono. The form lists the "Start Date: 10/27/04" and the "Priority: Normal." Next to "Instructions" are the designations "Temp/Perm: ___" and "Duration: ___," both of which are blank. However the record established that a second Test Form dated November 8, 2004, authorized by Nancy Gottwald, R.N., noted "T" next to the designation "Temp/Perm" and "3 Days" next to "Duration"
The Department asserts, in part, that Tardibuono's arguments should be disregarded because his administrative appeal only sought leniency and he did not produce a doctor's statement at the hearing. "Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Throughout both the hearing stage and administrative appeal Tardibuono continually claimed that he had a lower bunk medical restriction. Thus his contention is appropriately raised on appeal. However, that said, the State's records established that Tardibuono's restriction was temporary and thus not in force and effect on June 26, 2007. Moreover, Tardibuono does not deny his abusive verbal reaction to the Correction Officer's order.
We are satisfied from our review of the entire record that the decision of the Department is supported by substantial credible evidence in the administrative record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Petitioner was accorded the appropriate safeguards and protections during the procedure in accordance with Avant v. Clifford, 67 N.J. 496, 522-30 (1975). Tardibuono's contentions to the contrary lack sufficient merit warrant further discussion in a written decision. R. 2:11-3(e)(1)(D) & (E).