On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Wefing and Parker.
Jose Quintana is an inmate in the custody of the Department of Corrections. He appeals from a Final Decision imposing disciplinary sanctions for violating rule *.005, making a threatening statement to a corrections officer. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Quintana was charged with this disciplinary infraction based upon an incident which occurred on February 6, 2006. Senior Corrections Officer Fragoso was taking the mid-morning census of inmates and approached Quintana's cell. He was lying on his bunk listening to the radio through his headphones. He did not immediately move or respond to her verbal statements.
What happened next was disputed. Quintana said that Fragoso tapped on his bed three times with her stick and that he responded, "Yes." He maintained that the officer said he had an "attitude" and that she just wanted to do her job and go home, to which he responded, "And?" He said she completed her count and then returned to charge him with an infraction.
Fragoso, on the other hand, said that when Quintana did not respond, she knocked her stick on his locker and that he leaped out of bed, saying, "I will fuck you up if you ever wake me up like this." Fragoso then filed the disciplinary charge against him, and Quintana was placed in prehearing detention at 12:15 p.m. on February 6.
This is the third time Quintana's appeal has been before us. The disciplinary hearing was held early the following morning. According to the sheets prepared at the time, Quintana, who was represented by counsel substitute, waived the provision for twenty-four hours notice. Those sheets do not indicate when the hearing commenced but do note that it concluded at 7:45 a.m. At the hearing, Quintana presented the statement of one inmate in his defense; in that statement, the inmate said he had heard nothing.
Quintana filed an administrative appeal in which he contended that he had been unaware at the time of the hearing that another inmate paralegal was collecting statements of additional inmates on his behalf. Quintana attached those statements to his administrative appeal papers. The finding of guilt was upheld, but the sanctions were modified.
Quintana then appealed to this court. We remanded the matter to the Department so that it might consider the impact, if any, of these additional statements. The remand was conducted on the administrative level, and the findings of the original hearing officer were upheld.
Quintana again appealed. We again remanded the matter to permit a new hearing at which the hearing officer could consider the impact, if any, of these additional statements. The hearing officer again found Quintana guilty of this disciplinary infraction, noting various inconsistencies in the statements Quintana offered. Quintana has again appealed.
Quintana makes the following contention on appeal:
THE DECISION OF THE ADMINISTRATOR IN DENYING APPELLANT'S APPEAL OF THE ARBITRARY AND UNREASONABLE ADJUDICATION PROCESS HELD IN LESS THAN 24-HOURS OF THE CHARGE DENIED APPELLANT OF AN OPPORTUNITY TO GATHER NINE (9) WITNESSES STATEMENTS AND A PREPARED DEFENSE, OPERATED TO ...