On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Chambers.
Appellant Jermaine Smith, an inmate at New Jersey State Prison, appeals from a final administrative determination that he attempted to assault a corrections officer, thereby committing disciplinary infraction *.803/*.002*fn1 in violation of N.J.A.C. 10A:4-4.1(a).*fn2 He received sanctions of fifteen days detention, 365 days of administrative segregation and a loss of 365 days of commutation and work credits.
On April 14, 2007, Smith requested treatment from the medical department. After examining him, the nurse determined that no further medical treatment was needed at that time. When Smith became agitated, Sgt. Berry was called to the area. According to Smith, Sgt. Berry took him to the physical therapy room and "smacked" him. The hearing officer's summary of the evidence dated May 8, 2007, states that Sgt. Berry denied that he took Berry to the physical therapy room and slapped him. The nurse, however, confirmed Smith's testimony that Berry took him to the physical therapy room, although she was unaware of any physical altercation between the two.
Sgt. Jackson then reported to the medical clinic, and he and Sgt. Berry escorted Smith away. While doing so, they came upon Officer Rivera in hallway 1B. According to the hearing officer's summary of the evidence, Jackson, Rivera, and Berry testified that Smith swung a fist at Jackson in hallway 1B. Smith, however, testified that Jackson and Berry assaulted him in hallway 1B. Due to the discrepancy, Smith requested that he be given a polygraph test. That request was denied.
Thereafter, the hearing officer determined that Smith had committed a *.803/*.002 offense, finding substantial evidence to support the charge that Smith had swung a closed fist at Jackson. This decision was upheld by Assistant Superintendent Al Kandell on May 17, 2007.
On appeal, Smith argues that:
NEW JERSEY STATE PRISON HEARING OFFICER MANISCALCO AND THE ASSISTANT ADMINISTRATOR ABUSE THEIR DISCRETION WHERE THE EVIDENCE SUBMITTED IN CONFRONTATION SHOWED THAT SERGEANT BERRY, OFFICER JACKSON AND OFFICER RIVERA GAVE INCONSISTENT STATEMENTS AND IN LIGHT OF THE EVIDENCE THAT INMATE JERMAINE SMITH'S SANCTIONS SHOULD HAVE BEEN REDUCED GIVING THE BENEFIT OF THE DOUBT THAT SOMETHING TRANSPIRED OTHER THAN INMATE SMITH ACTING OUT IN A MANNER THAT WAS ALLEGEDLY AGGRESSIVE BUT PROTECTING HIMSELF FROM ABUSIVE STAFF OR AFFORDED A POLYGRAPH IN THE ALTERNATE.
Smith contends that the administrative determination was an abuse of discretion due to inconsistencies in the evidence, and he contends that his request for polygraph testing should have been granted.
We will first address the denial of Smith's request to take a polygraph test. We note that in serious disciplinary matters involving matters of credibility, the administrator or designee may request polygraph tests, N.J.A.C. 10A:3-7.1, and 10A:4-11.4(d). While inmates may request a polygraph test, they do not have an unqualified right to one. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); see N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient cause for granting the request.")
The allowance of a polygraph examination falls within the administrator's discretion and will not be overturned unless the exercise of that discretion was "arbitrary, capricious or unreasonable." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). In exercising that discretion, the administrator must consider whether denial of the request "will impair the fundamental fairness of the disciplinary proceeding." Ibid. Factors that may impair the fairness of the proceeding include inconsistencies in statements of corrections officers, and other documentary or testimonial evidence that goes to credibility of statements by other inmates or staff members on the inmate's behalf. Ibid. On the other hand, where serious questions of credibility are not present due to sufficient corroborating evidence, then concerns of fundamental fairness are not implicated by denial of the request for a polygraph test. Ibid.
In Engel v. N.J. Dep't of Corr., 270 N.J. Super. 176 (App. Div. 1994), we remanded a prisoner's disciplinary matter for polygraph testing where the only evidence against the inmate on charges of planning an escape was the uncorroborated assertions of an informant. Here three corrections officers testified to the attempted assault by Smith, and the hearing officer had the opportunity to determine their credibility and that of Smith. While there was some discrepancy between the nurse's testimony and that of Berry, that ...