December 23, 2009
CHAKA KWANZAA, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 28, 2009
Before Judges Payne and C.L. Miniman.
Appellant Chaka Kwanzaa appeals from final agency action by the Department of Corrections on September 18, 2008, finding him guilty of disciplinary infraction.256, refusing to obey an order of any staff member, in violation of N.J.A.C. 10A:4-4.1. We affirm.
Kwanzaa was in the medical line at Mid-State Correctional Facility on August 11, 2008, waiting to go the clinic when he began to speak in a loud and disruptive manner. Senior Corrections Office (SCO) D'Anzieri instructed him to be quiet several times, but Kwanzaa refused to comply. He told D'Anzieri, "I don't have to listen to you, I am a paralegal and I can do whatever I want." He was then charged with disciplinary infraction.256 and Sergeant Santiago served the charge upon him that day. Santiago conducted an investigation, determined that the charge had merit, and referred it to a hearing officer.
On August 14, 2008, the hearing was rescheduled because no hearing officer was available. The August 21, 2008, hearing was adjourned so the hearing officer could determine whether there was a video of the incident, as Kwanzaa requested, but none was found to be available. The August 28, 2008, hearing was rescheduled to permit Kwanzaa to obtain witness statements and prepare confrontation questions. In his written statement, Al Walker related that Kwanzaa sat down in the medical line, but an officer told him to get up. According to Walker, Kwanzaa replied "no," and the officer again instructed him to get up. At that point, Kwanzaa said "I have a medical pass to sit down" and walked out of the office without saying where he was going.*fn1
Kwanzaa's other witness, L. Hawkins, could not remember the incident. The September 4, 2008, hearing was adjourned so Kwanzaa could resubmit his questions because he only submitted one set when two were required.
The hearing was conducted on September 18, 2008, at which time Kwanzaa pled not guilty. He took advantage of an opportunity to call witnesses, calling Walker on his behalf. He also was given an opportunity to confront the witnesses against him, SCO D'Anzieri and SCO Lawhorn, who witnessed Kwanzaa's behavior. However, during confrontation of Lawhorn, Kwanzaa disregarded the hearing officer's instructions, became disruptive, and began mocking the proceedings. Therefore, the hearing officer terminated the confrontation of witnesses.
The hearing officer, based on the evidence and testimony, including Walker's testimony that Kwanzaa disobeyed an order, found Kwanzaa guilty of the.256 infraction. He also found that a videotape was not required or needed to adjudicate the charge because it was clear that Kwanzaa disobeyed some order. He imposed sanctions of a fifteen-day detention, ninety-day administrative segregation, sixty-day loss of commutation time, and thirty-day loss of recreation privileges. He imposed the sanctions to encourage Kwanzaa to obey "simple orders." Kwanzaa then filed an administrative appeal. On September 19, 2008, the administration upheld the decision of the hearing officer, finding compliance with the Administrative Code 10A. This appeal followed.
Kwanzaa presents the following issues for our consideration, which we have renumbered as follows:*fn2
POINT I - APPELLANT'S SUBSTANTIAL DUE PROCESS RIGHTS TO CALL WITNESSES AND PRESENT DOCUMENTARY EVIDENCE WAS ARBITRARILY DENIED.
POINT II -- APPELLANT'S SUBSTANTIAL DUE PROCESS RIGHTS TO CONFRONTATION CROSS-EXAMINATION ADVERSE WITNESSES WAS ARBITRARILY DENIED.
POINT III -- APPELLANT'S ADMINISTRATIVE APPEAL WAS ARBITRARILY "RUBBER-STAMPED" WITHOUT AN EXPRESSION OF REASON OF FOUND FACTS IN VIOLATION OF THIS COURT'S RULING.
In essence, Kwanzaa contends that the adjournment of the August 14, 2008, hearing violated his due process rights because there was no penological reason for the adjournment. He denies that he ever requested any postponements and suggests that the report of no videotape available is not credible in a prison.
He asserts he was entitled to a hearing within seven days, N.J.A.C. 10A:4-9.7(a)(2), or a statement of the reasons for a postponement. He argues that there is no administrative rule that gives a corrections officer the right to tell an inmate to stop talking, contrary to his right to freedom of speech, and the hearing officer abused his power when he suspended the hearing over Kwanzaa's demand for proof of such a rule. Finally, he asserts that the final agency decision did not contain any reasons based on found facts.
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).
The due process rights of prisoners respecting disciplinary charges were identified by our Supreme Court in Avant. A prisoner has the right to written notice of the charges at least twenty-four hours prior to the hearing and the hearing shall be conducted "as soon as practicable and within one week of the alleged violation, under ordinary circumstances." Avant, supra, 67 N.J. at 525, 528. Kwanzaa received written notice of the charges on the date of the offense. The first hearing was scheduled for August 14, 2008, but was rescheduled because no hearing officer was available. The August 21, 2008, hearing was adjourned because Kwanzaa requested a video of the incident. The August 28, 2008, hearing was rescheduled to permit Kwanzaa to obtain witness statements and prepare confrontation questions. The September 4, 2008, hearing was adjourned so Kwanzaa could resubmit his questions because he only submitted one set when two were required. The hearing was then concluded on September 18, 2008. Although month-long delays are not ideal, this hearing was not so protracted as to amount to a deprivation of the process to which Kwanzaa was due.
Prisoners also have the right to an impartial tribunal, which may be associated with the administrative process. Id. at 525. Here, a member of the DOC Central Office staff conducted the review. Kwanzaa contends he was not impartial, but he conducted the proceeding in accordance with the Administrative Code and summarized the evidence presented by both sides, appearing in all respects to be impartial.
Prisoners "are allowed to call witnesses and present documentary evidence in their defense when such procedure will not be unduly hazardous to institutional safety or correctional goals." Id. at 529. Kwanzaa was accorded this right and exercised it. Prisoners also have a limited right to confront and cross-examine adverse witnesses. Id. at 529-30. Nonetheless, hearing officers may curtail this right if they state the reasons for doing so on the record to permit appellate review. Decker v. N.J. Dep't of Corrections, 331 N.J. Super. 353, 357 (App. Div. 2000) (quoting McDonald v. Pinchak, 139 N.J. 188, 197 (1995)). Kwanzaa was allowed confrontation of adverse witnesses, but became disruptive, conduct which can curtail a right to cross-examine even in a courtroom. See State v. Budis, 125 N.J. 519, 532 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986), for the proposition that trial courts may limit cross-examination based on concerns about harassment and the witness' safety).
Prisoners have a right to a written statement of the evidence on which the hearing officer relied and the reasons for the sanctions imposed. Avant, supra, 67 N.J. at 533. The handwritten Adjudication Report and the typed version fulfill this requirement.*fn3 The matter was determined on the reports, the documentary evidence, and the testimony of the witnesses.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that Kwanzaa's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).