September 9, 2009
AGUSTIN GARCIA, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Determination of the New Jersey Department of orrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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 record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
We turn to the first of the two arguments considered by the Assistant Superintendent, namely that the razor blade found in Garcia's cell was so rusty that it must have been placed in the air vent by a prior resident of that cell. Applicable prison regulations hold inmates responsible for all contraband found in their cell. Obviously, inmates are unlikely to keep contraband in plain view and instead tend to hide such items in places unlikely to be discovered by corrections officers. Were we to accept Garcia's argument that the item must have been placed there by a prior inmate, no inmate could ever be held responsible for contraband hidden in his cell. Moreover, the rusty condition of the blade does not negate the conclusion that it was Garcia who placed it in the air vent. Thus, DOC's finding that Garcia possessed the razor blade found in his cell is based upon substantial and credible evidence in the record, and is entitled to our deference.
In his October 22, 2008 administrative appeal, Garcia also asserted that prison officials improperly denied his request for polygraph testing. We reject this claim as meritless because nothing in the record demonstrates that Garcia ever made such a request. Moreover, even if such a request was made, prison officials were not required to grant it as there was no "serious question of credibility and the denial of the [polygraph] examination" failed to "compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 20 (App. Div. 2005).
Relying on Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), DOC urges us to decline to consider Garcia's remaining arguments because those claims were not considered by the Assistant Superintendent before he rendered his October 28, 2008 decision. Because only one day elapsed between the filing of Garcia's two administrative appeals, we see no reason why prison officials could not have presented Garcia's October 23, 2008 submission to the Assistant Superintendent, especially because the Assistant Superintendent had not yet rendered his decision and in fact did not do so for five more days. We therefore reject DOC's argument that Garcia's additional contentions should not be considered.
These remaining claims can, however, be determined without extended discussion, and we address them in the same sequence in which Garcia has presented them. First, the searching officer was not required to describe his search procedure and Garcia was provided with a photograph of the razor blade found in his cell. Second, the record presents no facts that would enable us to consider Garcia's claim that a counsel substitute should not have been assigned because he did not so request. Third, as to the claim that the hearing officer denied Garcia an opportunity to confer with counsel substitute prior to the hearing, the record is devoid of any evidence that Garcia ever made such a request. Fourth, Garcia explicitly declined to exercise his right of confrontation, and thus no action of prison officials interfered with the exercise of such right. Fifth, applicable regulations do not require DOC to demonstrate "knowledge and control" of the contraband before an inmate is found guilty of a.210 offense.
Sixth, contrary to Garcia's claim to the contrary, he did receive twenty-four hours notice of the charge prior to the hearing because the charge was delivered to him at 7:45 a.m. on Friday, October 17, 2008, and the hearing was not held until Monday, October 20, 2008. Seventh, Garcia has presented no authority in support of his contention that the hearing officer was required to adjudicate the charge at the hearing, rather than shortly thereafter. Furthermore, Garcia was able to file an administrative appeal in a timely fashion, and thus there was no due process violation even if he did not learn of the hearing officer's guilty determination until after the hearing. Eighth, Garcia's claim that he was charged with the violation as retaliation for his role in class action litigation does not change the fact that the charge in question was supported by substantial and credible evidence in the record. Thus, there is no merit to this assertion. Last, Garcia's contention that he was denied due process when prison officials rejected his property loss claim concerning his Bible has no bearing on the charge under review.