August 18, 2009
MILTON P. DURHAM, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 appropriate in line with the Appellant's disciplinary record.
In this appeal, appellant argues:
POINT I APPELLANT WAS DENIED DUE PROCESS THROUGHOUT THE AGENCY HEARING, IN VIOLATION OF THE ADMINISTRATIVE CODE
a. THE HEARING WAS NOT HELD WITHIN THREE DAYS
b. APPELLANT WAS DENIED CONFRONTATION
c. THE HEARING OFFICER FAILED TO ACCURATELY RECORD THE PROCEEDINGS
d. APPELLANT WAS DENIED COMPETENT REPRESENTATION
POINT II THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE
POINT III APPELLANT WAS DENIED DUE PROCESS AS HIS HEARING WAS CONDUCTED BY TWO DIFFERENT HEARING OFFICERS (NOT RAISED BELOW)
POINT IV APPELLANT WAS DENIED DUE PROCESS BY THE ABSENCE OF A VERBATIM RECORD (NOT RAISED BELOW)
POINT V APPELLANT WAS DENIED DUE PROCESS ON APPEAL
Petitioner failed to raise a number of these arguments either before the hearing officer or in his appeal to the DOC. Consequently, we will not entertain those arguments. R. 2:6-2. With respect to petitioner's argument that the hearing was not held timely, the incident occurred on December 6, 2006, and on December 7 an investigation was conducted. Petitioner was charged and the hearing began on December 11, 2006. When petitioner pled not guilty, the hearing was adjourned to obtain the witness statements and the videotape he had requested. On December 13, the hearing proceeded to conclusion. Consequently, any delay in the conclusion of the hearing was a result of petitioner's requests.
He further claims that two different hearing officers addressed the matter on two different days and that he was prejudiced thereby. The first officer who heard the matter on December 11 heard no testimony and the matter was simply adjourned to allow defendant to obtain the witness statements and to seek a videotape of the incident. The fact that the hearing was conducted by a second officer who heard all of the testimony had no impact on the findings. There was no violation of petitioner's due process rights with respect to the hearing. Petitioner further argues that he was denied competent representation or a polygraph. He is entitled to counsel substitute but there is no Sixth Amendment right that attaches to an inmate's disciplinary hearing. Avant v. Clifford, 67 N.J. 496, 522 (1975). Similarly, he is not entitled to a polygraph to defend the disciplinary charges. Moreover, petitioner does not have a right to a verbatim transcript in a disciplinary hearing. Id. at 531.
Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We have carefully considered petitioner's arguments in light of the record and the applicable law and we are satisfied that there was sufficient credible evidence in the record to support the DOC decision. R. 2:11-3(e)(1)(D).
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