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Diggs v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 17, 2009

HUSSIEN DIGGS, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2009

Before Judges Cuff and Fisher.

Appellant Hussien Diggs is an inmate of the New Jersey State Prison in Trenton, serving a fifty-year term for murder, armed robbery, aggravated assault and other offenses. He appeals a final agency determination that he committed disciplinary infraction *.203, possession or introduction of any prohibited substances, such as drugs, intoxicants or related paraphernalia not prescribed by medical or dental staff, N.J.A.C. 10A:4-4.1. We affirm.

The record reveals that, on March 3, 2008, two corrections officers conducted a search of a housing unit at the prison and found in Diggs's cell three small square plastic bags containing what was believed to be a controlled dangerous substance. The bags were seized. The next day, Diggs was served with the disciplinary report. At that time, Diggs asked if the seized materials were to be tested. In response, the investigating officer asked if the substances consisted of drugs and Diggs said, "Yeah, it's drugs, but I ain't using them." The seized materials were then sent to a lab for testing. In the interim, Diggs was placed in pre-hearing detention.

On April 9, 2008, a report was received from the New Jersey State Police Office of Forensic Sciences, indicating that the seized materials consisted of heroin. A hearing on the disciplinary charge was conducted a few days later. At the hearing, Diggs argued for dismissal because of the delay; he also claimed that the drugs were planted in his cell. The hearing officer concluded that the delay was reasonable in light of the need to test the seized materials. The hearing officer also found, after examining the area, that it was unlikely that someone could have reached into the cell and placed the items in the particular location where they were found by the corrections officers.

Diggs argues on appeal that his due process rights were violated when he was placed in detention pending the hearing and because of the delay in the conducting of the hearing. We also discern from Diggs's brief that he claims the hearing officer's findings of fact are against the weight of the evidence.

We find insufficient merit in Diggs's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D). We add only that we are satisfied that Diggs's placement in pre-hearing detention and the delay in the hearing caused by the need to test the seized substances did not constitute a violation of the limited due process rights available to a prison inmate. See Avant v. Clifford, 67 N.J. 496 (1975). And we further observe that our intervention in such matters is limited to those circumstances where the agency's decision is arbitrary, capricious or unsupported by substantial credible 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). Substantial evidence is defined as "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). Because the record contains substantial evidence to support the agency's findings, we must defer.

Affirmed.

20090217

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