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Tally v. New Jersey Dep't of Corrections

March 10, 2009

ALLEN TALLY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 February 3, 2009

Before Judges Gilroy and Chambers.

Appellant Allen Tally appeals from the final decision of the New Jersey Department of Corrections (DOC) finding him guilty of committing three prohibited acts in violation of N.J.A.C. 10A:4-4.1(a): 1) *.708 (refusal to submit to a search); 2) *.259 (failure to comply with an order to submit a specimen for prohibited substance testing); and 3) .256 (refusing to obey an order of any staff member). We affirm.

On December 23, 2007, Senior Corrections Officer (SCO) Rieger observed appellant while in the East Jersey State Prison visiting hall. Rieger observed appellant un-tuck his shirt from his pants and place a white napkin down the back of the pants. Suspecting appellant may have unlawfully received a controlled dangerous substance (CDS), appellant was escorted from the visiting hall, strip searched, and directed to provide a urine sample for testing. No drugs were found during the search, nor detected in the urine sample.

Following the urine test, the prison's medical staff examined appellant and placed him in a "dry cell," instructing him not to use the toilet, but to defecate in a Styrofoam tray so that his feces could be examined for CDS. Contrary to the order, appellant used the toilet to defecate, soiling himself in the process. After observing feces on appellant's hands, the prison officers believed that appellant had attempted to search his feces for CDS. Appellant was escorted to the shower to clean himself. While in the shower, appellant's cell was searched, but no contraband was found. Following these events, appellant was charged with committing prohibited acts .256 and *.708.

On the following day, appellant was provided water to drink and was directed to provide a second urine sample. After two hours, appellant failed to comply. Accordingly, appellant was charged with committing prohibited act *.259.

Although the initial hearing on appellant's three charges was scheduled to begin before Hearing Officer Kathy Ireland on December 26, 2007, it was adjourned because appellant was on close watch status. As such, Ireland did not hear any testimony in the matter.

On January 7, 2008, the disciplinary hearing was conducted before Hearing Officer Zane Maguire. Appellant was provided with counsel substitute and was offered the opportunity to view the surveillance video of him in the visiting hall. Following the hearing, Maguire determined the officers' testimony credible, and based on a review of the videotape, found that there was a reasonable basis for placing appellant in a dry cell and ordering him to use the Styrofoam tray, rather than the toilet.

On the .256 charge, Maguire sanctioned appellant to fifteen days of detention with credit for time served; sixty days loss of commutation time; and ninety days of administrative segregation. Maguire also recommended that appellant be transferred to a more secure institution.

On the *.708 charge, appellant was sanctioned to fifteen days of detention; 300 days loss of commutation time; 300 days of administrative segregation. Also on this charge, appellant was again referred for transfer to a more secure institution. On the *.259 charge, appellant was sanctioned to 365 days loss of commutation time; 365 days of administrative segregation; permanent loss of contact visits; and 180 days of urine monitoring and drug programming. All sanctions were to run consecutive to each other.

On January 11, 2008, appellant appealed his disciplinary decision requesting a modification of the sanctions. On January 14, 2008, Assistant Superintendent Amadu Jalloh affirmed the hearing officer's decision, concluding that the sanctions imposed were proportionate to the offenses on which appellant was adjudicated guilty.

On appeal, appellant argues that he was denied due process because: 1) although his hearing was conducted by two officers, the second officer who adjudicated him guilty and imposed the sanctions did not possess evidence that was provided to the first hearing officer; and 2) the record does not support the ...


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