On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges Axelrad and Espinosa.
Appellant inmate Richard Brooks appeals from the adjudication of three disciplinary charges against him: threatening another with bodily harm, *.005; conduct which disrupts the orderly operation of the institution, *.306; and refusing to obey any order,.256; as set forth in N.J.A.C. 10A:4-4.1(a). We affirm.
The infractions arise from appellant's interaction with Corrections Officer Recruit Govens on October 12, 2008. On the following day, the disciplinary charges were served upon him and the matter was referred to a hearing officer for further action. In the hearing, the Department of Corrections (DOC) presented evidence that can be summarized as follows: Appellant ignored Govens's order to get off the phone and then passed the phone to another inmate, in violation of the rules in the inmate handbook. Shortly thereafter, appellant approached Govens and said, "Bitch, I will fuck you up if you write that charge, do you think it's a fucking game, you don't know who you messin' with bitch." Govens sounded a duress alert. Sergeant Young responded and found appellant still at the officer's desk. Sergeant Young noted that appellant threatened Govens during the open recreation period with approximately twenty-five to thirty inmates present.
The failure to respond to Govens's direct order was the basis for the refusal to obey an order charge. The threatening comment to Govens was the basis for the threatening another with bodily harm charge. The emergency code that was called in response to the threatening behavior, resulting in the lock down of the unit, was the basis for the charge of conduct which disrupts the orderly running of the correctional facility.
Appellant disputed the DOC's version of events. He submitted a statement in which he said:
Purnell & I work together. He asked me to make a call for him. I didn't know so I gave him the phone so my people could call for him. She said something & said go ahead. I got called for my medication & went back. She called me back down & then she called a code saying I threatened her, but I didn't threaten her. I been here for 2 years and I was also here when this place opened these officers knows me. I wouldn't do that. It's common sense.
He also elicited a witness statement from inmate Purnell:
Mr. Brook did me a favor concerning my daughter which is 13 years old. I did not see Mr. Brook do any wrong or disrespect anyone. I went back to my room and didn't come back out until it was time for me to go to work the next morning.
The hearing officer found appellant guilty of all three charges. The hearing officer noted that inmate Purnell's statement "confirmed the misuse of the phone system," found that there was substantial credible evidence that appellant threatened the officer, and found the officer's report credible. Appellant was sanctioned on the.256 charge to ten days detention, with credit for time served, sixty days loss of commutation credit and thirty days loss of telephone privileges; on the *.005 charge to fifteen days detention, two hundred ten days loss of commutation credit and two hundred ten days administrative segregation, all consecutive to the sanctions on the.256 charge; and on the *.306 charge to five days detention, ninety days loss of commutation credit and ninety days administrative segregation, all consecutive to the sanctions on the first two charges.
Appellant filed an administrative appeal. The hearing officer's decision was upheld by the Assistant Superintendent. Appellant filed this appeal from the DOC's ...