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Durham v. New Jersey Department of Corrections

August 18, 2009

MILTON P. DURHAM, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 May 12, 2009

Before Judges Wefing and Parker.

Petitioner Milton P. Durham appeals from a final administrative decision of the Department of Corrections (DOC) dated December 22, 2006, affirming the hearing officer's decision finding petitioner guilty of a violation of *.005, threatening another with bodily harm or with any offense against his or her person or his or her property. N.J.A.C. 10A:4-4.1.

The charge arose from an incident that occurred on December 6, 2006 in Trenton State Prison, when a senior corrections officer (SCO) supervising meal movement reported that petitioner stated to him, "You do not have to be so mean." The SCO instructed petitioner to keep moving but petitioner responded, stating, "I can say anything I want. Don't tell me what to say. I'll kick your ass. I do what I want to." The SCO thereafter charged petitioner with the infraction.

The notices were appropriately served on petitioner and a hearing was held on December 13, 2006. The adjudication report stated as follows:

Inmate pleads not guilty. Inmate also requested the HO review any videotape, however, A-3 (INV. Leonard) indicates that no video coverage of the area in question. HO relies on report from SCO Patrick stating that while supervising the mess movement at NJSP the inmate passes the officer in the WC Rotunda area and stated to the officer "You don't have to be so mean." Upon informing the inmate to keep moving, the inmate stated "I'll kick your ass." Inmate argued that he was allowed to return to his housing unit and therefore no immediate threat was made. He also notes witness statements d-1, d-2, d-1A which provide conflicting statements. Inmate Morris initially stated that the inmate was wrong, however, in h[i]s secon[d] statement he stated that no threat was made. Additionally, inmate McCray initially stated that he was not in the area at the exact time of the incident, however, the second statement indicates that no threat was made. Du[e] to the conflicting statements provided the HO relies on report fro[m] SCO Patrick indicating that during the movement the inmate made the threatening statement. HO also notes that the incident took place during the mess movement and to allow the inmate to continue to move from the area was prudent and wise to avoid any further escalation of the incident. Therefore based on the evidence presented there is substantial evidence to support the charge. The incident took place during a mass movement and maintained the ability to carry out the threat.

Petitioner was sanctioned fifteen days detention, 180 days administrative segregation and 180 days loss of commutation time.

Petitioner appealed the hearing officer's decision, arguing that the hearing officer abused his discretion and the decision was not supported by the evidence because "3 persons to 1 have stated that Appellant did not make any threat and there is no other evidence that any infraction occurred." He further argued that the hearing officer failed to address his request for a polygraph; failed to address his request to have inmate Morris brought to the hearing as a fact witness; failed to obtain a video of the rotunda area; failed to provide him with competent representation; failed to provide equal protection of the law; conducted an unfair, partial hearing; committed alleged racial discrimination because "all staff persons are . . . Caucasian and [he] is African American;" and "suspected retaliation" for an incident that occurred in 2001.

The DOC affirmed the hearing officer's decision, stating:

The evidence presented clearly substantiates the charge as written. The witness statements provided were conflicting and therefore lacked significant credibility, further enhancing the credibility of the reporting officer's statement. The Appellant claims that his ID was not secured immediately following the incident and offers that in mitigation. This act does little to negate the Appellant's culpability, in that there is no question regarding Appellant's identity, only that the mass movement necessitated allowing the Appellant to move along after the threat to avoid an escalation of the incident. No evidence presented indicates that the Appellant requested a polygraph during the hearing process. Although the Appellant alleges that witness statements were not permitted by the hearing officer, documented evidence indicates to the contrary. As such, nothing indicated within the hearing process appeared to hinder the Appellant's ability to prepare an adequate defense to the charge.

The Appellant's request for a video of the incident was addressed by the hearing officer within the adjudication summary of evidence. Also, there appears no question that the statement made by the Appellant, and the venue in which it was made constituted a substantial threat worthy of the charge. The fact that the Appellant complied with subsequent orders does not negate the severity of the threat made during a mass movement in the presence of other inmates and in an area vulnerable to significant disturbance.

Lastly there is no merit to Appellant's claim of retaliation. The hearing process was predicated upon factual and credible information. The Appellant's actions will not be tolerated and the imposed sanction is viewed as ...


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