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Garcia v. New Jersey Dep't of Corrections

September 9, 2009

AGUSTIN GARCIA, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Determination of the New Jersey Department of orrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 11, 2009

Before Judges Lihotz and Baxter.

This is an appeal from an October 28, 2008 final agency decision of the New Jersey Department of Corrections (DOC), in which DOC imposed disciplinary sanctions upon Trenton State Prison inmate, Agustin Garcia. The hearing officer found Garcia guilty of committing prohibited act.210, possession of anything not authorized for retention or receipt by an inmate or not issued through regular correctional facility channels. After finding Garcia guilty of the.210 charge, the hearing officer recommended a sanction of ten days detention, with credit for time served, and sixty days loss of commutation credit.*fn1 Garcia appealed the hearing officer's adverse decision to the prison administrator, who on October 28, 2008, affirmed the guilty finding of the sanction imposed by the hearing officer. We affirm.

I.

On October 16, 2008, during a routine search of Garcia's cell, a corrections officer found a razor blade in the top right air vent. He charged Garcia with violating *.202, possession of a weapon or unauthorized tool, and placed him in pre-hearing detention. Garcia had been transferred to that cell two months earlier. The day after the razor blade was found, a sergeant served a written copy of the charges on Garcia, conducted an investigation and referred the matter to a hearing officer for disposition. Because Garcia was charged with an asterisk offense, counsel substitute was assigned to represent him.

Garcia was offered, but declined, the opportunity to call witnesses on his behalf at the October 20, 2008 hearing, and also declined the opportunity to confront and cross-examine adverse witnesses. His waiver of those rights is noted on the hearing officer's report, which bears his counsel substitute's signature on line 16, acknowledging that the hearing officer's report accurately reflected what occurred at that disciplinary hearing.

After hearing testimony and reviewing all of the evidence, the hearing officer dismissed the *.202 charge and instead found Garcia guilty of the lesser.210 violation, possession of anything not authorized for retention or receipt by an inmate.

On October 22, 2008, Garcia filed his institutional appeal from the hearing officer's adverse October 20, 2008 decision. The next day, Garcia submitted what he described as a "redated" administrative appeal accompanied by a lengthy written statement adding numerous arguments he had not raised in the administrative appeal he filed the day before. Because applicable administrative regulations do not authorize inmates to file a second and amended administrative appeal, Garcia's October 23, 2008 submission was not presented to, or considered by the Assistant Superintendent before he rendered his October 28, 2008 decision upholding the decision of the hearing officer.

Although not presented in separate point headings as required by Rule 2:6-2(a)(5), Garcia raises eleven arguments on appeal.*fn2 Specifically, he now argues that DOC's October 28, 2008 decision must be reversed because his due process rights were violated when: 1) the searching officer failed to provide details of the procedures of the search or describe the item found; 2) the hearing officer assigned Garcia a counsel substitute without one being requested; 3) Garcia was not afforded the opportunity to meet with counsel substitute prior to the hearing; 4) he was denied confrontation of witnesses; 5) the evidence did not demonstrate the requisite "knowledge and control" of the contraband in question; 6) his right to twenty-four hours notice of the disciplinary hearing was violated; 7) he was not informed of the hearing officer's guilty finding at the hearing; 8) he was charged with possession of contraband in retaliation for his role in a class action lawsuit filed by inmates against DOC; 9) he was denied a property loss claim; 10) his request for a polygraph was wrongly denied; and 11) he was found guilty of possessing a razor blade so rusty that it must have been placed in the air vent by a prior occupant of the cell.

Only the last two of these eleven arguments were presented to the Assistant Superintendent for consideration in connection with Garcia's October 22, 2008 administrative appeal. The other nine were raised only in Garcia's second administrative appeal submitted on October 23, 2008, which prison officials never forwarded to the Assistant Superintendent for his consideration.

II.

Our scope of review is a narrow one, and Garcia's contentions are reviewed in accordance with that standard. We must affirm unless the agency's decision was arbitrary, capricious, unreasonable or unsupported by credible evidence in the ...


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