November 14, 2008
RONALD DANIELS, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2008
Before Judges Carchman and Simonelli.
Appellant Ronald Daniels appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing a prohibited act *.005, threat with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a).
On appeal, Daniels raises the following contention: ARGUMENT THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE APPELLANT DANIELS WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND FUNDAMENTAL FAIRNESS WHEN THE HEARING EXAMINER DENIED APPELLANT OF HIS CONSTITUTIONAL AND PROTECTED RIGHT TO CONFRONT AND CROSS-EXAMINE ANY/ALL STATE WITNESSES THAT ARE AGAINST APPELLANT AND OF HIS CONSTITUTIONAL AND PROTECTED RIGHT TO CALL ANY/ALL DEFENSE WITNESSES WHO MAY DESIRE TO TESTIFY ON APPELLANT'S BEHALF.
We reject this contention and affirm.
Daniels is an inmate at East Jersey State Prison. He is serving a sentence*fn1 for his conviction for possession of a controlled dangerous substance and for parole violation.
Daniels was fired from his kitchen job for stealing food. He blamed inmate Taylor for reporting the theft. On November 25, 2007, Senior Corrections Officer (SCO) Oreo spoke to Daniels about being fired from the kitchen and about the problem Daniels was having with Taylor. Daniels responded, "first chance I get I'm gonna fuck that motherfucker [Taylor] up." SCO Tamagni was present at the time. Daniels was cuffed, frisked and placed into a holding cell. Taylor refused the offer of protective custody because he did not feel threatened.
As a result of his indirect threat to Taylor, on November 26, 2007, Daniels was charged with *.005 threatening another with bodily harm or with any offense against his or her person and *.306 conduct which disrupts or interferes with the security or orderly running of the correctional facility. The charges were served on Daniels on November 26, 2007. Daniels pled not guilty.
A disciplinary hearing was held on November 28, 2007. A counsel substitute represented Daniels. The hearing officer granted Daniels' request for witness names, provided Taylor's written statement that Daniels did not threaten him and provided a written statement from inmate Atkinson indicating Atkinson lacked knowledge of what had occurred.*fn2 No other witnesses were requested or acknowledged. Daniels declined the hearing officer's offer to confront adverse witnesses.
At the hearing, Daniels stated he did not threaten Taylor. His substitute counsel stated the conflict between Daniels and Taylor had been resolved, and there was no reason for Daniels to threaten Taylor. The hearing officer substantiated the *.005 charge after considering Daniels' and his attorney substitute counsel's statements, the charges, the Preliminary Incident Report and Pre-Hearing Detention Form, Tamagni's report, SCO Guaciaro's report, the written statements of Daniels, Taylor and Atkinson, Taylor's Refusal of Protective Custody form and the Hold-In form.*fn3 In a written decision, the hearing officer concluded
Although [Daniels] denies threatening to harm  Taylor he can provide no factual/reliable evidence to support his [not guilty] plea. [The hearing officer] otherwise notes: there is a serious conflict [between Daniels and Taylor] which gives motive for the threat. His threatening [statement, first] chance I get, I'm gonna [f]uck that [motherfucker up], is said to SCO Oreo, and in the presence of SCO Tamagni. Staff have no reason to misrepresent themselves nor have cause to be prejudiced toward [Daniels]. Staff are credible. [Charge] is substantiated.
Daniels received a sentence of 15 days detention with credit for time served, 365 days of administrative segregation, 270 days loss of commutation time and 30 days loss of recreation privileges. The hearing officer reasoned the institution "[cannot] minimize [or] condone such misconduct [and] risk of carrying-out this threat." The hearing officer also reasoned the institution has a zero tolerance policy, the absence of accountability was an additional concern, there was a need to deter and there were clear safety and security concerns.
On November 28, 2007, Daniels administratively appealed. On December 4, 2007, the hearing officer's substantiation of the charges was upheld but the sanctions were modified to reflect the reduction of administrative segregation to 300 days. This appeal followed.
Daniels contends that he was denied due process because the hearing officer denied him the right to confront and cross-examine Oreo and Tamagni. He also contends the hearing officer denied him the right to produce, confront and cross-examine Taylor, who rebutted the claim he was threatened. We disagree.
A prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses and present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.] Id. at 529-30.
Based upon our review of the record, we are satisfied Daniels was afforded all due process protections required by Avant, supra, 76 N.J. at 525-33. We are also satisfied the hearing officer's decision was based on substantial evidence that Daniels committed a prohibited act, and the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10a:4-9.15(a). It is irrelevant that Taylor did not feel threatened by Daniels. Daniels threatened Taylor indirectly and the threat was confirmed by Oreo and Tamagni.