August 7, 2009
LUTHER SEAY, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 officer determined there was insufficient evidence to support that charge.
Seay immediately appealed the decision of the hearing officer to the South Woods State Prison Administrator. Seay stated he wished to appeal the decision of the hearing officer based upon "a plea of leniency." He stated in his administrative appeal:
I did not make any threats. There is no evidence that I made any threats. I have no history of hurting anyone. I attempted to go through the proper channels, and as a result of such, I became a target. I did not do anything wrong. I request leniency in this matter. Please suspend the Ad-Seg time.
On July 30, 2008, the DOC upheld the decision of the hearing officer and this appeal ensued.
On appeal, Seay presents numerous arguments for our consideration. Specifically, he argues that his due process rights were violated because the hearing officer attempted to hold in absentia hearings; his counsel substitute was ineffective; he was denied confrontation; and he received his disciplinary charge outside the time frame prescribed by the Administrative Code. He also claimed he was denied a cell change; he was denied an inmate handbook; that the officers submitted false reports; and that the hearing officer denied him a fair hearing. Seay also asserts that there was a lack of substantial credible evidence to support a finding of guilt.
We note at the outset that "[c]courts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Id. at 579-80. We must determine:
"whether the findings made could reasonably have been reached on sufficient credible evidence present in the record," considering "the proofs as a whole," with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor. [Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).]
We find that Seay was afforded all of the recognized protections that an inmate facing disciplinary charges is entitled to receive. McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Seay received written notice of the alleged violation; a written statement of the evidence relied on; the reasons for the disciplinary action taken; a right to call witnesses; a right to present evidence; and a right to assistance from a counsel substitute. Id. at 195.
Seay's arguments, therefore, that his due process rights were violated, are without merit. We find that there was sufficient credible evidence in the record for the DOC to make its determination.
A number of issues raised by Seay were not the proper subject for this appeal. In particular, the inmate's complaints regarding "State pay" and his denial of a requested housing transfer are not properly before us. They were not the subject of the disciplinary action, and, we therefore, will and need not address them.
Seay's argument that the DOC officers filed false reports and placed false information into the records is without factual support and can simply be viewed as an attack on the officer's credibility. As stated above, because there is sufficient credible evidence in the record to support the credibility findings of the DOC, we will not question them. See In re Taylor, 158 N.J. 644, 657-58 (1999).
Lastly, Seay argues that, pursuant to N.J.A.C. 10A:4-9.2, the disciplinary report was not served upon him within forty-eight hours after the violation. It appears from the record that the report was served approximately forty-nine hours and thirty-five minutes after the incident. Seay argues that this time violation would mandate the dismissal of his charges. We disagree.
First of all, N.J.A.C. 10A:4-9.2 provides that the disciplinary report shall be served on an inmate within forty-eight hours after the violation, unless there are exceptional circumstances. As the DOC argues in this case, following the incident, Seay was placed on constant watch status by the medical staff and was therefore unable to receive the delivery of the disciplinary charge in time. Moreover, N.J.A.C. 10A:4-9.9(a) provides that "[t]he failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge." Under this regulation, the disciplinary hearing officer may, in his discretion, dismiss a charge because of a violation of time limits. The regulation provides, though, that such discretion shall be guided by the following factors: the length of the delay; the reason for the delay; prejudice to the inmate in preparing his defense; and the seriousness of the alleged infraction. In this case, there was no request for a dismissal, but it is obvious, given the de minimis delay, and the lack of any apparent prejudice to the inmate in preparing his defense and the seriousness of the charge, that a dismissal would have been an abuse of discretion.
Accordingly, because we conclude that the agency's decision is neither arbitrary, capricious or unreasonable given the facts presented and that the decision is supported by substantial credible evidence in the record as a whole, and because we find that the balance of Seay's arguments are without sufficient merit to warrant discussion in a written opinion, we affirm. See Henry, supra, 81 N.J. at 579; R. 2:11-3(e)(1)(E).
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