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Powell v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2008

KYLE POWELL, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, NORTHERN STATE PRISON, RESPONDENT.

On appeal from a Final Agency Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 2, 2008

Before Judges Payne and Alvarez.

Appellant, Kyle Powell, appeals from a final decision of the Department of Corrections finding that he had committed disciplinary infractions *.306 (conduct that disrupts or interferes with the security or orderly running of the correctional facility) and *.803/.002 (assaulting any person), see N.J.A.C. 10A:4-4.1(a), and from disciplinary sanctions of fifteen days of detention, ninety days of loss of commutation time and ninety days of administrative segregation for the *.306 charge, imposed consecutively to sanctions of fifteen days of detention, 210 days of loss of commutation time and 210 days of administrative segregation for the *803/.002 charge.

The charges stem from an incident occurring on August 7, 2007. According to the disciplinary report of Senior Corrections Officer (SCO) Good, at 11:50 a.m. on that date, during lunch, Powell left his cell door open. When Good asked why Powell had done so, Powell yelled: "I'm waiting for my cellie." After Good informed Powell that his cellmate was eating in the day room and ordered Powell to shut his cell door, Powell attempted to strike Good. Powell was then "taken to the floor" but "continued to struggle until finally subdued." SCO Crawford corroborated Good's account. Corrections Sergeant Nelson likewise provided corroboration, stating in his disciplinary report that Powell had "attempted to assault SCO Good by swinging a closed fist at him." As a result, a "code 33" was called, the lunch mess movement was stopped, and the inmates were locked in. Staff members were required to respond from various areas of the facility to assist in restraining Powell and escorting him from the unit to the holding cell. During the incident, Good sustained a swollen and sore right hand and experienced pain in his left shoulder. Powell had a swollen left eye and several small abrasions on the face and scalp. Powell received medical treatment for his injuries. The record does not reflect medical treatment to Good.

Powell contested the officers' version of events, stating that Good entered his cell and attacked him without provocation. Good, assisted by Crawford and others, then beat Powell to the ground, continuing the attack for approximately five minutes and delivering "no less than 100" blows. However, the investigating officer, Sergeant Bernstein, observed that if Powell had actually been hit 100 times, his injuries would have been more substantial. Instead, they were deemed consistent with Powell's efforts to resist handcuffing and detention.

At the courtline hearing conducted in the matter, Powell was represented by counsel substitute. He did not call any witnesses and did not request confrontation. The hearing officer, crediting the corrections officers' evidence, sustained the charges and imposed the discipline that has previously been described. Both disposition and discipline were affirmed on administrative appeal.

In the present appeal to us, Powell contests the hearing officer's findings of fact, claiming without supporting evidence that corrections officers at South Woods State Prison regularly assault inmates and then cover up their actions. Powell additionally asserts that, despite the lack of any request, he should have been given a polygraph and an opportunity to view the prison's videotape of common areas, taken at the time of the incident.

We reject Powell's arguments. Deference must be accorded to the hearing officer's findings of fact, which were supported by substantial evidence in the record. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also McDonald v. Pinchak, 139 N.J. 188, 199-202 (1995). Powell's remaining arguments were not raised before the agency and thus are not cognizable here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, we find no abuse of discretion in the failure of the prison administrator to order a polygraph sua sponte. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). And finally, we have been provided with no evidence that would suggest that a videotape of the prison's common areas would have captured events occurring within Powell's cell.

Affirmed.

20080915

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