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Rivera v. Dep't of Corrections


October 7, 2008


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

Per curiam.


Submitted September 17, 2008

Before Judges Parrillo and Lihotz.

This is a prison disciplinary appeal. Marcos Rivera, an inmate currently confined at East Jersey State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the facility, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

The evidence established that on October 4, 2007, Senior Correction Officer (SCO) Johnson observed a prison recreation yard brawl involving separate groups of inmates, numbering about ten in all. Responding to Johnson's call of a Code 1033, SCO Raimato saw Rivera striking other inmates "with closed fists and leg kick." According to SCO Centi, after the fighting was broken up, the inmates involved, including Rivera, were taken to the prison medical station to be evaluated.

Originally, Rivera was charged with a *.002 infraction (assaulting any person) later downgraded to a *.004 infraction, fighting, along with the *.306 violation. Rivera, who was provided the assistance of counsel substitute, pled not guilty to both charges. The matter was heard on October 11, 2007, at which time Rivera denied involvement in the fracas, but declined to confront or cross-examine adverse witnesses, or call any witnesses on his behalf. After reviewing the evidence, the hearing officer dismissed the *.004 charge; adjudicated Rivera guilty of the *.306 charge; and recommended sanctions of: fifteen days Detention with credit for time served; 90 days of Administrative Segregation to be served concurrent; 90 days loss of commutation credits; and 60 days loss of recreation privileges to be served concurrent. On administrative appeal, the guilty finding and imposition of sanctions were upheld.

On this appeal, Rivera argues that the finding that his conduct disrupted the orderly running of the prison was not based on substantial evidence and that he was denied procedural due process when the hearing officer failed to provide a summary of evidence which supported the finding of guilt. After reviewing the record in light of the arguments advanced by the parties, we conclude that the issues presented by Rivera are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). The decision issued by the DOC is supported by substantial, credible evidence in the record, Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980), and Rivera was provided adequate due process protections in the filing, processing and hearing of the charge against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).

As to the former, Rivera simply argues that if he was not guilty of "fighting", he could not reasonably have been found guilty of disrupting the orderly running of the prison. We disagree. The two infractions constitute separate and distinct offenses. In other words, Rivera could be engaged in conduct which is disruptive of the prison's orderly operation that does not amount to the offense of fighting. Apparently, a review of the videotape of the October 4, 2007 incident did not clearly sustain the offense of fighting. Nevertheless, it was evident from the reports of the officers that at the very least, Rivera, by using physical force, participated in disruptive conduct that necessitated the corrections officers on duty to call a Code 1033, and thereafter to escort the participating inmates to a medical station for evaluation.

As for the alleged due process violation, Rivera received timely notice of the charges against him and a hearing before a neutral tribunal, at which he was represented by a counsel substitute. Rivera and his counsel substitute were shown the adjudication sheets and the evidence utilized by the hearing officer, were permitted to put on a defense, and were afforded the opportunity to confront adverse witnesses. In a word, Rivera was afforded all the process due him.



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