On appeal from a Final Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
Eduardo McLaughlin, an inmate, was charged with disciplinary infraction *.803/*.002, attempting to assault any person, but was found guilty by the hearing officer of disciplinary infraction *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, N.J.A.C. 10A:4-4.1.*fn1 The hearing officer imposed 15 days detention, with credit for time served, 270 days administrative segregation and 270 days loss of commutation time. Following an administrative appeal, the assistant superintendent upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.
By order of February 27, 2009, we remanded to clarify the record of the hearing*fn2 and retained jurisdiction. After several adjournments by the hearing officer to compile the complete record and for scheduling conflicts, the final hearing was conducted on June l7, 2009. Appellant pled not guilty and received the assistance of counsel substitute. At the rehearing, appellant declined the opportunity to call witnesses on his behalf, confront adverse witnesses or view the videotape. Following his review of the evidence, including the documents from the initial hearing, the hearing officer determined the evidence supported a finding of guilt on the *.306 charge and imposed the same sanctions as previously ordered. This appeal ensued.
Appellant argues: (1) the hearing officer and assistant superintendent erred and acted arbitrarily and capriciously in not dismissing the *.306 charge after determining there was insufficient evidence to sustain the *.803/*.002 charge and (2) denial of his request for a polygraph examination violated his due process rights. We reject appellant's arguments and affirm.
The charges arose from an incident on May l4, 2008, during which appellant was passing through a metal detector. Appellant set off the detector his first time through, but the second time through he did not. According to the officers, appellant became belligerent when he was patted down and frisked. He was then ordered out of the area, but remained hostile and verbally abusive. The supervisor directed that appellant be strip searched, noting his behavior indicated that, despite the preliminary search, appellant might be concealing contraband, including a potential weapon. Appellant then disregarded Officer Miller's command to put his hands against the wall and submit to another pat search and "turned, quickly and aggressively." The officers called a "code 33" and physically restrained and handcuffed appellant. Appellant was brought to the infirmary bleeding and complained of being assaulted by the officers. Appellant received a number of stitches and two of the officers were treated for wrist and exposure injuries. Appellant was charged with *.803/*.002, attempting to assault any person.
The hearing officer reviewed the officers' reports, medical reports, the videotape*fn3 and appellant's statements. The hearing officer noted the administrator denied appellant's request for a polygraph, "stating that issues of credibility would be determined during the hearing." As reflected in the hearing officer's report, appellant denied he acted aggressively and argued the officers used excessive force during the incident. He did not deny, however, that he removed his hands from the wall during the incident or that he turned around to talk to one of the officers. After reviewing the evidence and hearing the testimony, the hearing officer modified the charge to *.306, disruptive conduct. Summarizing the testimony and evidence in detail, the hearing officer found there was "substantial evidence to support the [amended] charge," concluding that, as Officer Miller was beginning the search, appellant "turned around in an aggressive manner causing the attending staff to restrain the inmate." He found appellant's actions caused the officers "to believe that an assault by the inmate was imminent and the inmate had to be restrained" and that "[t]he inmate's actions not only disrupted the facility's normal operations but also placed the staff and the inmate's safety in jeopardy."
At the remand hearing, the hearing officer reported the missing document was presented for reconsideration, the "reason for rehearing was clearly a technicality," and appellant presented no additional information or witnesses. He upheld the modified charge, concluding the credible staff reports he relied on "vividly detail" that appellant was causing disruptive behavior at the search point by "waving of his hands," which signified "his reluctance to cooperate."
We are satisfied appellant was afforded the procedural due process required by Avant v. Clifford, 67 N.J. 496 (1975). We reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). In addition, a polygraph is clearly not required on every occasion that an inmate denies the disciplinary charge against him, but rather the request should be granted "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.
In appellant's case, the record does not show any issues of credibility that could not have been determined at the disciplinary hearing. Appellant requested and received confrontation of the officers at the initial hearing. Thus, the absence of a polygraph did not compromise the fundamental fairness of the disciplinary process.
Nor did the hearing officer abuse his discretion in modifying the initial charge based on the testimony and evidence presented at the hearing. Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole will we reverse such decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold an agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). Here, in determining guilt, the hearing officer relied on reports from the officers who were present at the scene, appellant's statements in which he admitted he took his hands off the wall and turned his head, the videotape and the medical reports. Based on this evidence, the hearing officer made credibility assessments and set forth detailed findings of fact to support his determination that ...