On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2010
Before Judges Axelrad and Sapp-Peterson.
These are back-to-back appeals consolidated for the purpose of this opinion. Mukhtar Khalid is an inmate currently incarcerated at Mid-State Correctional Facility in Wrightstown. He appeals from two final administrative agency decisions from the Department of Corrections (DOC) arising out of disciplinary infractions of which he was found guilty while an inmate at South Woods State Prison in Bridgeton. We affirm.
The first appeal arises out of a July 29, 2008 cafeteria incident in which Khalid slammed his food tray down at the food port window and told an inmate pantry worker, "I will see you when you get out of there and we can go to the dayroom and handle this like men." Senior Correction Officer (SCO) Shorter ordered Khalid to stop and stand against the wall. Khalid looked directly at SCO Shorter and then proceeded to his cell. SCO Shorter stopped him, placed him in cuffs and escorted him to a holding cell. Khalid was charged with disciplinary infraction *.005,*fn1 threatening another with bodily harm or with any offense against his or her person or his or her property, and .256, refusing to obey an order of any staff member. He was assigned counsel substitute but declined the offer to confront witnesses. Referencing SCO Shorter's special report, the hearing officer found credible Shorter's statement that he was ten feet away from Khalid when he ordered Khalid to stand against the wall. The hearing officer also considered the "Chart Note for DOC SPECIAL" which reported that "[u]pon assessment of [Khalid's] chart there isn't any information stating there is a history of hearing loss. [Inmate] has NO significant hearing loss according to his medical chart." After considering all of the evidence, the hearing officer modified the *.005 to a .709 offense, failure to comply with a written rule or regulation of the correctional facility, and found him guilty of this charge. The hearing officer found Khalid guilty of refusing to obey an order of any staff member and imposed sanctions of fifteen days' detention, sixty days' loss of commutation credit, ninety days' administrative segregation, suspended for sixty days, and referred Khalid for a psychiatric evaluation. Khalid filed an administrative appeal which was rejected. The recommended sanctions were upheld.
The second appeal stems from an incident that occurred on September 5, 2008. On that date, Khalid exited his cell with his fists clenched and raised above his head, walking toward Senior Corrections Officer (SCO) LeMatty. SCO LeMatty heard Khalid shout, "you motherfucker you made me miss KOP's;*fn2 I'm gonna fuck you up." Khalid was charged with violating disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property. Because he was charged with an asterisk offense, Khalid was assigned counsel substitute at his request. At the hearing, Khalid admitted to using abusive language during a verbal altercation with the correction officer after asking the officer whether KOP had been called out, at which point the officer sent him back to his cell. The hearing officer modified the charge to a violation of .304, using abusive or obscene language to a staff member. Khalid pled guilty to the modified charge. The hearing officer recommended the imposition of fifteen days' detention, with credit for time served, sixty days' loss of commutation credit, and ninety days' administrative segregation, suspended for sixty days. Khalid filed an administrative appeal that was considered and rejected by the Assistant South Woods Superintendent, who upheld the sanctions imposed.
In both appeals, Khalid, for the first time, raises arguments he did not raise before the hearing officers or in his administrative appeals. As to the charges stemming from the September 8, 2008 incident, Khalid claims that his due process rights were violated because the hearing officer modified the disciplinary charge and failed to provide an adequate summary upon which the adjudication was based. With respect to the charges arising out of the July 29, 2008 charges, Khalid contends there was insufficient evidence to support the .256 disciplinary charge. Because these contentions are neither jurisdictional nor issues of great public importance, we decline to consider these contentions raised for the first time in this appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
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. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Id. at 579-80.
In Avant, supra, 67 N.J. at 522, the Court held that the prison disciplinary proceedings are not criminal proceedings and, therefore, inmates charged with disciplinary infractions are not entitled to the full panoply of rights afforded to a criminal defendant. Nonetheless, the Court held that inmates facing disciplinary charges are entitled to limited protections before sanctions may be imposed against them. Id. at 524-33.
Consistent with the limited procedural rights which an inmate facing disciplinary sanctions must receive under Avant, the record here demonstrates that DOC adhered to all of these procedures in connection with both proceedings. Khalid received appropriate notice of the charges in advance of the hearings. Id. at 525. Although he had no notice of the modified charges before the hearings, the modifications were based upon the hearing officer's consideration of the evidence presented at the hearings. Neither Khalid nor his substitute counsel objected to the modifications. Further, N.J.A.C. 10A:4-9.16 permits a hearing officer to modify a disciplinary charge when it is apparent that "an incorrect prohibited act is cited in the disciplinary report but that the inmate may have committed another prohibited act[.]" Additionally, the hearings were conducted by a member from DOC's central office staff. Avant, supra, 67 N.J. at 525-28. Because Khalid was charged with asterisk offenses, he was provided counsel substitute in connection with both proceedings. Id. at 529.
Khalid was also offered an opportunity to call witnesses on his own behalf. Id. at 529-30. Inmate Scott submitted a witness statement for one proceeding. Khalid also requested a written statement from Inmate Neal of Cell #19 on 3-1L in the other proceeding, but the prison investigation did not reveal that an Inmate Neal resided in that cell. Although there is nothing in the record evidencing any effort by the prison to determine whether there was an Inmate Neal in another cell or whether Inmates Decosmis or Mcerlean, who resided in Cell #19 on 3-1L, witnessed any of the events, this failure on the part of the prison investigators does not warrant reversal since Khalid pled guilty to the modified charge of using abusive language.
R. 2:10-2. Further, Khalid was also offered the opportunity to confront adverse witnesses in both proceedings, but declined to avail himself of this opportunity. Id. at 529-30. Finally, Khalid and his counsel substitute had the opportunity to review the evidence the hearing officers considered in reaching their respective decisions as well as the explanations for the sanctions imposed. Id. at 533.
Based upon the record before us in both appeals, we conclude that there is sufficient credible evidence in the record to support the decisions reached here. We will reverse only where an agency's decision is arbitrary, capricious, or unsupported by credible evidence in the record. Henry, supra, 81 N.J. at 579-80. We ...