On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Graves and Newman.
Kuan Muhammad, an inmate at East Jersey State Prison inmate, appeals from a final decision of the Department of Corrections adjudicating him guilty of committing prohibited acts .256, refusing to obey an order of any staff member, and .304, using abusive or obscene language to a staff member, in violation of N.J.A.C. 10A:4-4.1. The hearing officer imposed sanctions of ten days detention and fifteen days loss of recreation privileges on the .256 charge, and ten days detention, ninety days administrative segregation, and sixty days loss of commutation credit on the .304 charge. Muhammad filed an administrative appeal, and on September 3, 2008, the administrator of East Jersey State Prison upheld the hearing officer's decision. We affirm.
According to Senior Corrections Officer Andrew Holloway, he gave Muhammad "a direct order not to enter the showers with his laundry bag" on August 16, 2008, and Muhammad responded, "you can't stop me from taking this bag in the showers." Muhammad then walked into the shower area with his laundry bag and refused to leave the area even though Holloway gave him "numerous direct orders to do so." Holloway also reported that Muhammad told him: "If I go to lock up I'm going to punch you in the fuckin face."
Officer Holloway summoned assistance and Sergeant Service responded. Sergeant Service ordered Muhammad "to exit the shower" and he complied. Muhammad was then handcuffed and taken to pre-hearing detention.
Holloway charged Muhammad with violating prohibited acts *.005, threatening another person with bodily harm and .256, refusing to obey an order of a staff member. When the charges were served on Muhammad on August 17, 2008, he pled not guilty and requested statements from two witnesses. He also indicated he would make a statement at his administrative hearing. On August 18, 2008, Muhammad's request for counsel substitute was granted, and the hearing officer amended the *.005 charge to .304, using abusive or obscene language to a staff member.
Muhammad's administrative hearing was held on August 29, 2008. With the assistance of counsel substitute, Muhammad declined the opportunity to confront and cross-examine any of the witnesses against him. At the hearing, Muhammad claimed he did not enter the shower, he did not refuse to obey an order, and he did not threaten Holloway. In addition, Muhammad presented statements from five inmates. After considering the reports of the corrections officers, the statements by the inmate witnesses, and Muhammad's statements, the hearing officer adjudicated Muhammad guilty of both charges.
On appeal, Muhammad presents the following arguments:
THE APPELLANT WAS DENIED DUE PROCESS WHERE THE FINDING OF GUILT WAS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE PURSUANT TO N.J.A.C. 10A:4-9.15.
THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHERE THE HEARING OFFICER WAS ALLOWED TO BOTH AMEND THE CHARGE AND THEREAFTER ...