September 5, 2008
TERRENCE SINGLETON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Administrative Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2008
Before Judges Messano and Chambers.
Terrence Singleton appeals from the administrative determination that he committed the disciplinary infraction of threatening a corrections officer in violation of N.J.A.C. 10A:4-4.1(a) *.005.
Corrections Officer Robert Maretz contends that on May 7, 2007, he observed Singleton, an inmate at the East Jersey State Prison, leaving the prison dining hall early. When he attempted to ask Singleton why he left the dining hall early, Singleton started to walk away. When Maretz called Singleton back and told him to remain in his work area, he contends that Singleton approached him "with a clenched fist and threatening manner and stated 'fuck that, you don't tell me shit!'"
Singleton explains that he was excused early from his work area and was returning to his housing unit carrying eggs and juice when he was confronted by Maretz. He denies saying anything to the Officer and he denies clenching his fist. He attributes the wrongful charge to retaliation by Maretz for civil litigation Singleton had brought against Maretz and others arising out of disciplinary incidents in 2005.
The incident was observed by Corrections Officer R. Williams, who reported that he saw Maretz attempt to question Singleton and then saw Singleton walk away. At that point, he saw Singleton turn and walk toward Maretz saying something, although he could not hear what was being said. He was about fifteen feet from the confrontation and did not see whether or not Singleton had a closed fist.
Singleton was charged with committing a prohibited act in violation of N.J.A.C. 10A:4-4.1(a) *.005; namely, "threatening another person with bodily harm or any offense against his or her person or his or her property." He was also charged with the prohibited act of being in an unauthorized area in violation of N.J.A.C. 10A:4-4.1(a) .402, but this charge was later dismissed.
Apparently, at the hearing, Singleton argued that he could not have made a fist since he was holding juice and a bowl of eggs from the kitchen. The hearing officer's decision states that Maretz demonstrated how Singleton could carry both items and have one hand free. Singleton maintains that the items should have been provided at the hearing so that the hearing officer could have better evaluated his ability to hold both items and clench his fist.
After the hearing was held on May 14, 2007, the hearing officer found that Singleton had made a threatening gesture with a closed fist to the officer, and found him guilty of the *.005 offense of threatening a person. Singleton was sanctioned ten days in detention, 120 days in administrative segregation, and ninety days of loss of commutation time. On appeal to the associate administrator, the decision was affirmed on May 18, 2007.
In this appeal, Singleton raises the following issues:
THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS WAS NOT BASED UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW BUT ALSO LACKS THE NECESSARY ELEMENTS TO SUSTAIN GUILT BASED UPON SUBSTANTIAL CREDIBLE & RELIABLE EVIDENCE IN THE RECORD AS [A] WHOLE.
THE DISCIPLINARY HEARING OFFICER IN THIS MATTER VIOLATED APPELLANT'S RIGHT TO OFFER AND PRESENT MITIGATING EVIDENCE ON HIS BEHALF.
THE HEARING OFFICER WAS AWARE OF, AND SHOULD HAVE CONSIDERED GIVING WEIGHT TO, THE FACT THAT APPELLANT HAD NAMED SCO MARETZ IN A CIVIL LAWSUIT AND SCO MARETZ HAD ACTED IN RETALIATION.
At the outset, we note that the hearing officer's finding of guilt relied on Maretz's testimony that Singleton approached him with a closed fist and in a "threatening manner" and said "fuck that, you don't tell me shit!" Such conduct is sufficient to constitute "threatening another person with bodily harm" in violation of N.J.A.C. 10A:4-4.1(a) *.005. See Jacobs v. Stephens, 139 N.J. 212, 222-24 (1995) (agreeing that N.J.A.C. 10A:4-4.1(a) *.005 was violated where the inmate made heated, abusive, and profane statements, including "I'll fuck you up," directly to the corrections officer). "The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear." Id. at 222.
Singleton argues that this account of the incident by Maretz was not confirmed by Williams, the corrections officer who also witnessed the incident. However, Williams indicated in his report that he could not hear what was being said, and the record does not indicate that he was in a position to see whether or not Singleton had a clenched fist. On this point, the hearing officer noted that "SCO Williams saw the incident, and while he was not close enough to hear [what] was said or see if there was a fist, he was concerned enough to approach to see what was happening." As a result, the fact that Williams could not corroborate Maretz's account that Singleton had a clenched fist does not provide evidence that it did not happen.
Singleton contends that he could not have held up a clenched fist, because he was carrying a bowl of eggs and juice at the time, which required the use of both of his hands. He maintains that similar items should have been produced at the hearing. Maretz demonstrated at the hearing how Singleton managed to carry these items and also clench his fist. The hearing officer found that demonstration believable.
Singleton also argues that Maretz filed the charges in retaliation for a civil lawsuit Singleton filed against Maretz and others. However, the hearing officer noted that this prior history between the two and Singleton's perceived mistreatment by Maretz could explain why Singleton made the threatening gesture to Maretz.
This court will not reverse a decision of an administrative agency unless the decision is "arbitrary, capricious or unreasonable or  is not supported by substantial credible evidence in the record as a whole." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). The hearing officer's findings in an inmate's disciplinary hearing must be based on "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). We are required to give a "careful and principled consideration of the agency record and findings." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000). Since the record, as discussed above, reveals substantial evidence to support the finding of guilt, we affirm.
© 1992-2008 VersusLaw Inc.