On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009
Before Judges Wefing and Grall.
Wilfredo Ruiz, presently an inmate at East Jersey State Prison in Rahway, appeals from an adjudication of a disciplinary infraction for prohibited act *.005, threatening another with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a). Ruiz received a sanction consisting of 15 days' detention, 300 days' administrative segregation and 300 days' loss of commutation time. The prison's Assistant Superintendent, Paul Wagner, denied his administrative appeal, and Ruiz now appeals from that final agency decision of the Department of Corrections (DOC). Because the determination is "supported by sufficient credible evidence on the record as a whole" and not arbitrary or capricious, we affirm. R. 2:11-3(e)(1)(D).
On the morning of August 14, 2008, Ruiz went to the prison infirmary but had to wait to see a doctor. According to Dr. Shah's report of the incident, Ruiz "appeared angry" when he entered the examining room. He "slammed the pen and stated 'Ridiculous. I had to wait [three hours].'" While the doctor examined him, Ruiz became "louder and threatening." Ruiz then jumped and "slammed his hand on [the] desk . . . . Officer Durand came in[to] the room and backed [the] inmate up." Dr. Shah "was fearful and felt threatened for [her] safety."
Officer Durand's written report does not indicate the point at which he entered the examination room. His summary includes this information: During a scheduled medical appointment, Ruiz became agitated and loud and slammed his I.D. on the doctor's desk. Ruiz "again moved towards Dr. Shah in an aggressive manner as she was sitting at her desk. At this point it was evident [he] intended to cause harm to her." Ruiz "had to be restrained (physically)." Consequently, Durand "handcuffed" him and gave Dr. Shah an opportunity to leave the room.
Sergeant Grablow was called and came to the infirmary with another officer. According to Officer Small's report, he called Grablow. Small's report, which does not indicate whether he observed the incident or was told about it, notes that Ruiz slammed his I.D. on Dr. Shah's desk, jumped off the examination table, and walked toward the doctor; Durand stepped between the inmate and the doctor. Grablow's report suggests that Small was not an eyewitness. His list of members of the prison staff involved does not include Small.
Grablow gave the following summary of what he learned, without identifying the source of the information it includes.
[Ruiz] became loud and disruptive while being seen by Dr. Shah in the infirmary exam room. As the Dr. was examining him he became extremely agitated, began yelling and jumped off of the exam table toward the Doctor. At this time the Dr. exited the exam room in fear for her safety and called for the officer to assist. SCO Durand immediately restrained the inmate due to his assaultive behavior and for the Dr.'s safety. Upon my arrival the inmate was escorted to detention, examined by CMS and mental health and placed in detention PHD status with the [charge of *.005 Threat on CMS staff.]
On August 15 and August 16, 2008, Ruiz wrote to the prison Administrator, Charles Albino, and provided his account. The second letter includes a request for a polygraph: "I am willing to take a lie detector test and pay for it if I must to prove to the event described." In both letters, Ruiz acknowledges disagreeing with the doctor about her prescription of two half-dose pills of his thyroid medication rather than one full-dose pill, which meant that he was charged twice as many co-pays. He also acknowledges mentioning to her a complaint he had filed about medical services, but he denies threatening the doctor.
The disciplinary hearing was conducted on August 18, 2008. Albino did not respond to Ruiz's request for a polygraph, and the hearing officer who had Ruiz's letters did not address that request. Ruiz, who had the benefit of counsel substitute, pled not guilty and presented copies of the letters he sent to Albino as his written statements in support of his defense of denial. According to the hearing officer's report, which was signed by counsel substitute, Ruiz did not ask for the opportunity to confront or cross-examine any witness.
Acknowledging Ruiz's reliance on discrepancies between the various written statements of the officers and Dr. Shah and referencing Ruiz's decision to waive his right to confront the authors of those reports, the hearing officer concluded "that [Ruiz] approached the doctor in a threatening manner" and "presented an immediate threat to the doctor." The hearing officer selected a sanction he deemed appropriate "to deter [Ruiz] from threatening others."
Ruiz filed his timely administrative appeal on August 19, 2008. Noting a "discrepancy in the statements of all involved" and alleging that the "event [had been] totally blown out of proportion," Ruiz reiterated his request that "a lie ...