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Seay v. New Jersey Dep't of Corrections

August 7, 2009

LUTHER SEAY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 22, 2009

Before Judges Yannotti and Lyons.

Luther Seay (Seay), an inmate at South Woods State Prison, appeals from a final decision issued by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person or his or her property," in violation of N.J.A.C. 10A:4-4.1(a). Because we find that Seay was afforded all appropriate procedural guarantees and that there is substantial credible evidence in the record to support the DOC's decision, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On July 21, 2008, Sergeant Ferguson conducted a tour of inmate Seay's wing. During his tour, he discussed Seay's request to have his housing assignment changed. Following that conversation, Seay exited his cell and walked over toward Officer Ayars and Sergeant Ferguson. At that time, according to Officer Ayars and Sergeant Ferguson, Seay stated in a loud and belligerent voice, "this is bullshit, I've had enough of you and this place. If you don't get me off this unit, I'm gonna hurt you or somebody else. I'm not taking this shit anymore." Sergeant Ferguson, in response, immediately placed Seay in restraints and escorted him off the unit. Seay was then placed in pre-hearing detention after clearance by the medical department.

On July 23, 2008, Seay was served with charges. The charges were a violation of *.005 and *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility" in violation of N.J.A.C. 10A:4-4.1(a).

The first scheduled hearing date was July 23, 2008. Seay entered a plea of not guilty, requested the assistance of a counsel substitute, which was granted, and the hearing was postponed to allow a professional report to be obtained. On July 25, 2008, the hearing was again postponed in order to allow for a requested confrontation and cross-examination of witnesses to be scheduled. Later that day, Seay withdrew his request for confrontation and cross-examination, in writing, stating, "I have changed my mind after considering all the factors."

On July 28, 2008, the hearing was held and concluded. The evidence included the incident reports from Sergeant Ferguson and Officer Ayars, a medical evaluation, the reports of the five escorts who transported Seay, as well as Seay's written statement denying the offense. According to the DOC's Adjudication of Disciplinary charges form, Seay stated at the hearing:

I have 12 years of a 13 stip in and I didn't and wouldn't say that. They just wanted me off the unit, and I asked to be moved and they wouldn't. My cellmate mimicked me and I asked him to stop. I told them my cellmates had been harassing me.

The counsel substitute at the hearing stated, "[Seay] doesn't want confrontation any more. He is just asking for leniency and that there be no [loss of commutation time.]" Although Seay was offered a chance to call witnesses, no other witnesses were produced by him at the hearing.

The hearing officer found Seay guilty of *.005, stating:

[Seay] pled not guilty but he is found guilty. While [Seay] denies ever making a threatening statement, there is substantial credible evidence that [Seay] did indicate that he intended to hurt someone. Considering he was having difficulties with his cellmates and he was not being given the cell change he wanted, the Ayars' [sic] report and Ferguson report are credible.

The hearing officer imposed the following sanctions: fifteen-days detention; ninety days of loss of commutation time; (sixty days of which was suspended); and ninety days of administration segregation. Seay was found not guilty of charge *.306 after the hearing ...


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