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Seay v. New Jersey Dep't of Corrections

December 23, 2009

LUTHER SEAY, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from a Final Decision of the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 9, 2009

Before Judges Lyons and J.N. Harris.

Luther Seay (Seay) is an inmate in the State's correctional system, who is currently incarcerated at South Woods State Prison (SWSP) in Bridgeton, New Jersey. Seay is presently serving a twenty-eight year sentence, with a minimum mandatory term of thirteen years, which was imposed after his conviction of aggravated manslaughter, N.J.S.A. 2C:11-4(a).

Seay appeals from a final determination of the Department of Corrections (DOC), dated February 13, 2009, which imposed sanctions upon him for committing prohibited act *.306,*fn1 conduct which disrupts or interferes with the security or orderly running of the correctional facility, N.J.A.C. 10A:4-4.1(a), and prohibited act.501, failing to stand count, N.J.A.C. 10A:4-4.1(a). We affirm.

On February 11, 2009, Senior Corrections Officer (SCO) Slusarczyk was conducting an inmate count. As part of that routine procedure, SCO Slusarczyk ordered Seay to lock in his cell. Seay refused and reportedly told SCO Slusarczyk, "I am not locking in tonight with my new celly," referring to his cellmate. A supervisor, Sergeant Sparacio, was called to the scene and ordered Seay for a second time to lock in his cell for the taking of an inmate count. Seay stated to Sergeant Sparacio, "I'm not locking in with him." Seay's conduct resulted in a delay of the inmate count for approximately fifteen minutes.

Seay was charged with prohibited act.501 (failing to stand count) for his refusal to lock in his cell for the taking of an inmate count, and with prohibited act *.306 (conduct which disrupts or interferes with the security or orderly running of the correctional facility) for the resultant delay in the completion of the inmate count.

Seay was served with the charges on February 12, 2009. A hearing that considered both of the alleged prohibited acts was conducted on February 13, 2009 by DOC Disciplinary Hearing Officer James McGovern. Seay entered pleas of not guilty to both charges and utilized the assistance of a counsel substitute.

McGovern considered several documentary items of evidence, including disciplinary reports and the inmate's personal statement. The hearing officer found Seay guilty of both prohibited acts, and imposed a combined sanction of fifteen days detention, ninety days administrative segregation, and thirty days loss of recreational privileges.

Seay filed an immediate administrative appeal of the hearing officer's determinations. On February 13, 2009, Assistant Superintendent John Powell upheld the hearing officer's decision, explaining:

When given a direct order to lock in your cell during count, this is not an option. By failing to stand count, your actions violated the safety [and] security of this institution. The sanction imposed was proportionate to the offense.

Remaining aggrieved and unsatisfied by the DOC's final determination, Seay appealed.

On appeal, Seay offers numerous arguments for our deliberation. Among them, he asserts that he suffered an abuse of authority; he was subjected to cruel and unusual punishment; he was deprived of an Inmate Handbook; his due process rights were violated by the conduct of the counsel substitute; he was rushed into the preparation of a defense; he was denied the opportunity to request a polygraph examination because he was unaware of his right to ask for one; he was deprived of a psychiatric examination; and he never had a chance to discover other potentially relevant information about his case. Seay further claims that the corrections officers who submitted disciplinary reports set him up and falsified their reports in "copy-cat" fashion; that the staff at SWSP failed ...


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