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Webster v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 15, 2009

CLAYTON WEBSTER, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 23, 2009

Before Judges Lyons and J. N. Harris.

In this case, Clayton Webster (Webster), an inmate at New Jersey State Prison (NJSP), appeals from a final decision of the New Jersey Department of Corrections (DOC) upholding the imposition of prison discipline against him. We affirm.

On August 3, 2008, Webster had a contact visit in the North Compound Visit Hall. Afterwards, at approximately 11:40 a.m., Senior Corrections Officer (SCO) Brennan conducted a strip search of Webster. During the strip search, SCO Brennan ordered Webster to lift up his testicles, and he complied. Webster asserts SCO Brennan then ordered him to stick a finger in his mouth and lift up his tongue. Webster claims he replied that he could not do this because his hands were dirty. SCO Brennan denies ordering Webster to put his finger in his mouth.

According to SCO Brennan, Webster was twice ordered to bend at the waist and spread his buttocks, but both times Webster refused. SCO Bezek, Correction Officer Recruit (COR) Dzurkoc, and COR Lopez observed Webster's refusals and subsequently filed reports confirming their observations. Inmate Paul Reid was also present during the incident, and he claimed that Webster only refused SCO Brennan's order to stick his finger in his mouth after touching his testicles.

SCO Brennan then notified his supervisor, Sergeant Barnes, that Webster had refused to comply with his orders. Sgt. Barnes told Webster to get dressed and be seated until the other inmates' strip searches were completed. After the searches were finished and the other inmates were no longer present, Sgt. Barnes ordered Webster to strip, bend over at the waist, and expose his anal cavity. Webster removed his clothes but, again, refused to bend over and separate his buttocks.

Webster was then ordered to get dressed, handcuffed, and escorted to the strip frisk room, where he complied with all orders for the strip search. Based on his refusals to comply with the strip search orders, Webster was charged with prohibited act *.708, refusal to submit to a search. N.J.A.C. 10A:4-4.1. Webster subsequently requested a counsel substitute and pled not guilty.

The disciplinary hearing was postponed from August 6, 2008, at counsel substitute's request, for an opportunity to fully examine the case. On the same day, the hearing officer submitted a request to the DOC investigator for any videotape of the incident.

On August 8, 2008, the disciplinary hearing was postponed based on counsel substitute's requests to view the videotape, to confront adverse witnesses, and to examine Webster by polygraph. Webster asserted that by submitting to a polygraph, he could prove that SCO Brennan lied and wrote a false charge.

The hearing officer, counsel substitute, and Webster viewed the videotape evidence produced that day. The videotape did not have an audio component. Further, it was only a tape of the search ordered by Sgt. Barnes. After viewing the videotape, the hearing officer entered his findings on the record that Webster did not effectively comply with the order to spread his buttocks. The hearing officer also stated that Webster's lengthy hair style impacted the view. Webster noted that footage of the initial strip searches by SCO Brennan was missing, and the DOC admits this missing footage is no longer available. In response to a request for additional videotape footage, the DOC investigator received an e-mail that stated in pertinent part, "[d]ue to the time limitation of the video recorder, your request to receive additional video footage could not be processed due to the time/date parameters of the date of the incident expired."

On August 11, 2008, the hearing was further postponed for case review. Webster's request for a polygraph was denied that day by the prison administrator in a memorandum that explained:

1) There are no issues of credibility in regards to the reporting officer or through investigation that was conducted by the disciplinary Sergeant.

2) The basis of your request 'to prove that the officer not only lied but wrote a false charge' is not sufficient cause for a polygraph examination.

3) There were no findings of new evidence pertaining to this issue.

The disciplinary hearing was held on August 13, 2008, at which time Webster did not request any witnesses. Webster declined to make a statement, but his counsel substitute submitted one:

Webster stated that while the officer was strip searching him [after his] visit, the officer ordered him to [lift his hands up], lift his testicles up, and then take one of his finger[s] and lift his tongue up. Webster told the officer that he can't put his finger in his mouth because [his] hands are dirty.

According to Webster, [SCO] Brenn[a]n then called the Sgt. over and told the Sgt. that Webster refused to bend at the waist and spread his buttocks.

The hearing officer reviewed the charge reports; a pre-hearing detention report; a use of force report; the security and control strip search procedures for contact visits; his note regarding the videotape request; the correction officers' reports; the investigator's e-mail; a videotape review assessment; confrontation answers given by Sgt. Barnes, SCO Brennan, and SCO Bezek; and Reid's inmate witness report.

Relying on the confrontation answers and reports of SCO Brennan, SCO Bezek, and Sgt. Barnes; the use of force report; COR Lopez's report; and the videotape review assessment; the hearing officer concluded that Webster refused to submit to a search. The hearing officer sanctioned Webster with fifteen days detention with credit for time served, 300 days of administrative segregation, 300 days of loss of commutation time, and possible loss of contact visits.

After receiving an extension of time, Webster administratively appealed the decision, the denied request for a polygraph test, and the DOC's failure to provide complete footage of the videotape to the prison administrator. The administrator's office upheld the guilty finding, explaining, "[t]he evidence presented clearly substantiates the charge as written." The administrator's office relied on "credible evidence includ[ing] the written reports and the statements of the officers in the confrontation phase of the hearing." Moreover, it determined, "[a]ll applicable DOC standards were followed in this case."

On appeal, Webster raises the following arguments for our consideration:

POINT I THE DOC AND THE [HEARING OFFICER] ERRED BY FAILING TO PROVIDE A COMPLETE FOOTAGE OF THE VIDEOTAPE TO ASCERTAIN THAT APPELLANT WAS COMPLYING WITH THE OFFICER'S ORDER AND THAT THE OFFICER HAD BEEN UNREASONABLE BY TELLING APPELLANT TO PUT HIS FINGER IN HIS MOUTH AFTER JUST HAVING LIFTED HIS TESTICLES.

POINT II THE DISCIPLINARY HEARING OFFICER IN THIS MATTER VIOLATED WEBSTER'S RIGHT TO OFFER AND PRESENT DOCUMENTARY EVIDENCE ON HIS BEHALF.

POINT III WEBSTER['S] REQUEST FOR A POLYGRAPH TEST SHOULD HAVE BEEN GRANTED TO PROVE THAT OFFICER BRENNAN WAS UNREASONABLE AND THAT THE CREDIBILITY OF OFFICER BRENNAN WAS DEEMED UNRELIABLE.

POINT IV THE DECISION OF THE HEARING OFFICER IN FINDING WEBSTER GUILTY OF REFUSING TO SUBMIT TO A SEARCH IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE ON THE RECORD, THEREBY VIOLATING APPELLANT'S RIGHT TO DUE PROCESS AND MUST THEREFORE BE REVERSED.

We recognize 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). An appellate court ordinarily will reverse the decision of an administrative agency only when "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. When reviewing an administrative agency decision, a court "must engage in a 'careful and principled consideration of the agency record and findings.'" In re Taylor, 158 N.J. 644, 657-58 (1999) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). Essentially, 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." Id. at 656 (internal quotation marks omitted) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

First, we turn to Webster's argument that the DOC's determination of Webster's guilt is not supported by substantial credible evidence in the record.

We find that substantial evidence exists in the record to support Webster's disciplinary sanction. Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). Substantial evidence is "such evidence that a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418-19 (App. Div. 1956)).

An inmate may be strip searched in limited circumstances, including after a contact visit. N.J.A.C. 10A:3-5.7(b)(1). "A strip search includes a thorough and systematic examination of the inmate's body and orifices, including visual inspection of external genital and anal areas . . . ." N.J.A.C. 10A:3-5.7(a). Five correction officers submitted reports that Webster refused to comply with orders to bend at the waist and separate his buttocks. Additionally, after watching the videotape, the hearing officer found that Webster did not comply with the strip search orders. The hearing officer also observed SCO Brennan, SCO Bezek, and Sgt. Barnes when they answered Webster's confrontation questionnaires. Hence, we find that substantial credible evidence supports the DOC's determination that Webster refused to submit to a search.

Next, we consider whether Webster was afforded sufficient procedural due process by the DOC.

Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant, supra, 67 N.J. at 522. The DOC must structure an informal hearing to assure that a disciplinary finding will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that the DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.

Webster contends though that, because the DOC failed to supply him with the other videotape footage, he was denied his right to present witnesses and documentary evidence in his defense. Avant, supra, 67 N.J. at 522; N.J.A.C. 10A:4-9.13(a). We disagree.

In State v. Colasurdo, 214 N.J. Super. 185, 192 (App. Div. 1986), we held that the loss of a videotape that showed a defendant performing sobriety tests did not warrant vacation of a guilty plea for driving while under the influence of alcohol, contrary to N.J.S.A. 39:4-50. We identified three factors for determining whether a criminal defendant's due process rights were violated when physical evidence has been suppressed, lost, or destroyed in a criminal trial: "(1) whether there was bad faith or connivance on the part of the government, . . . (2) whether the evidence suppressed, lost or destroyed was sufficiently material to the defense, . . . [and] (3) whether defendant was prejudiced by the loss or destruction of the evidence . . . ." Id. at 189 (quoting State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.) certif. denied, 101 N.J. 335 (1985)).

To be material, the "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 189 (quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed. 2d 413, 422 (1984)). We recognized that vacation of the guilty plea in that case was "not warranted where the State was merely inadvertent or negligent in its failure to disclose the evidence absent a showing that the evidence is material and favorable to the defendant." Id. at 191. Notably, the State possessed other evidence inculpating the defendant. Id. at 190. We found the evidence was not lost in bad faith, would not have induced reasonable doubt, and would not have exculpated the defendant. Id. at 188-91. Hence, we reversed and reinstated the defendant's guilty plea. Id. at 192.

The State's failure in the instant case to produce the missing footage would not rise to a due process violation in even a criminal trial context. The unavailability of the footage was attributed to the time/date parameters of NJSP's videotape recorder. Moreover, the footage would be immaterial to the charge for which Webster was disciplined. While it could be relevant to SCO Brennan's credibility, the footage lacks exculpatory value in light of the evidence (particularly the videotape that was produced and showed Webster refusing the order at that time) and findings of the hearing officer. Webster was not substantially prejudiced by the footage's unavailability because counsel substitute and Reid submitted statements regarding Brennan's initial searches. Further, the officers responded to Webster's questions. Because the videotape's absence would not violate due process in a criminal trial context, then certainly its absence did not impair the fundamental fairness of Webster's disciplinary proceeding.

Lastly, Webster argues that the DOC improperly denied his request to submit to a polygraph examination. We disagree.

N.J.A.C. 10A:3-7.1 provides:

(a) A polygraph examination may be requested by the administrator:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or

2. As part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.

"The code regulation's principal impetus is as an investigative tool of the administrator when serious disciplinary infractions are alleged against an inmate as opposed to an affirmative right granted to the inmate himself." Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23 (App. Div. 2005).

An inmate does not have an unqualified right to a polygraph test. Ibid.; Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). Instead, "an inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez, supra, 382 N.J. Super. at 20. We explained such impairment may be evidenced by inconsistencies in the SCO's statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility. [Id. at 24.]

The record does not reflect a serious credibility issue. Webster never testified. Webster did not admit or deny that he refused to bend at the waist and spread his buttocks. He and Reid both claimed that Webster refused to put his finger in his mouth. Moreover, Reid was not present when Sgt. Barnes later ordered another strip search. Webster was not disciplined for refusing to put his finger in his mouth but for refusing to expose his buttocks. The fundamental fairness of the disciplinary proceeding was not impaired by the denial of Webster's request.

Accordingly, because we conclude that the agency's decision is neither arbitrary, capricious, nor unreasonable given the facts presented and that the decision is supported by substantial credible evidence in the record as a whole, we affirm.

Affirmed.

20091015

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