June 17, 2010
ANTONIO MERRITT, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections. Antonio Merritt, appellant pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2010
Before Judges Yannotti and Chambers.
Appellant Antonio Merritt, an inmate currently incarcerated at New Jersey State Prison in Trenton, appeals from a final administrative determination that he committed the prohibited act of attempted assault *.803/*.002 under N.J.A.C. 10A:4-4.1(a).*fn1 We reverse and remand for a rehearing.
The record indicates that Senior Corrections Officer LeMien filed reports stating that on April 2, 2009, he saw Merritt assault Senior Corrections Officer Albano by making a fist and striking at him. In defense, Albano struck Merritt who was then wrestled to the ground. As a result, Merritt was charged with committing prohibited act *.002 assault, and *.306, conduct which disrupts, N.J.A.C. 10A:4-4.1(a). Merritt pled not guilty and, at his request, a counsel substitute was appointed for him as allowed by N.J.A.C. 10A:4-9.12. The written record of the disciplinary hearing held on this infraction states that Merritt did not testify, he did not call any witnesses, he did not ask for confrontation of the adverse witnesses, but he did request leniency.
Based on this record the hearing officer modified the charge to attempted assault under *.803/*.002, N.J.A.C. 10A:4-4.1(a) as the more appropriate charge. He found Merritt guilty of attempted assault, noting that Merritt's conduct was triggered when Merritt became upset because a visit was terminated. The hearing officer imposed upon Merritt sanctions of fifteen days detention, 300 days of administrative segregation, 180 days of loss of commutation time, and made a referral for a mental health evaluation.
Counsel substitute filed on behalf of Merritt an administrative appeal of this determination, disputing the corrections officers' version of events and contending that Merritt was struck by an officer and wrestled to the ground for no apparent reason. The appeal also contended that even if Merritt had committed the offense, the sanctions imposed were harsh. By disposition dated May 4, 2009, the Assistant Superintendent of the Department of Corrections upheld the decision of the hearing officer. Merritt appeals this determination to this court, raising the following issues:
THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE MERRITT FAILED TO RECEIVE ALL THE PROCEDURAL DUE PROCESS TO WHICH HE WAS ENTITLED.
THE DEPARTMENT OF CORRECTIONS['] [DENIAL] OF MERRITT'S REQUEST FOR A POLYGRAPH EXAMINATION CONSTITUTED A CLEAR VIOLATION OF HIS RIGHT TO PRESENT EXCULPATORY EVIDENCE.
MERRITT WAS DENIED [ADEQUATE] COUNSEL SUBSTITUTE AT HIS DISCIPLINARY HEARING WHICH [CONTRIBUTED] TO HIS INABILITY TO OBTAIN A FAIR HEARING.
THE FINAL AGENCY DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE REVERSED BECAUSE IT DOES NOT COMPORT WITH THE STANDARDS OF DUE PROCESS AND THE REQUIREMENT THAT ITS DECISIONS BE BASED ON SUBSTANTIAL, CREDIBLE EVIDENCE.
Merritt contends that the written record of the adjudicatory hearing does not accurately reflect what occurred at the hearing. He maintains that at the hearing he did recount to the hearing officer his version of what happened, and he sets forth in his brief to this court numerous factual details about the incident. Merritt claims that he requested an opportunity to confront Senior Corrections Officer Albino and to take a polygraph examination but those requests were denied by the hearing officer and administrator respectively. Merritt also contends that his counsel substitute was inadequate and improperly signed important documentation without Merritt's knowledge and authorization and failed to assert adequately the multiple issues Merritt wanted raised in his administrative appeal.
While prisoners do not enjoy the full spectrum of due process rights, a prison inmate charged with a disciplinary action is entitled to certain limited due process rights. Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974, 41 L.Ed. 2d 935, 950-51 (1974); Avant v. Clifford, 67 N.J. 496, 518-19 (1975). This includes the right to confront and cross-examine the witnesses against them when "necessary for an adequate presentation of the evidence, particularly when serious issues of credibility are involved." McDonald v. Pinchak, 139 N.J. 188, 198 (1995) (quoting Avant v. Clifford, supra, 67 N.J. at 530); N.J.A.C. 10A:4-9.14.
Merritt contends that he was denied the right to confront Senior Corrections Officer Albano. However, the Adjudication of Disciplinary Charge form that is the written record of the adjudicatory hearing and was signed by the hearing officer indicates that Merritt was offered the opportunity to confront adverse witnesses but declined to do so.
In McDonald v. Pinchak, supra, 139 N.J. at 200, the Court was confronted with a dispute where the inmate maintained he had been denied the right to confront and cross-examine witnesses, although the written report of the adjudication indicated that he had declined to do so. Unable to resolve the factual dispute based on the record before it, the Court remanded the case back to the Department of Corrections with instruction to determine whether the inmate had requested the opportunity to confront and cross-examine witnesses. Id. at 200-01. If he had, then a rehearing was necessary. Id. at 201. If he had not made the request, then the Court indicated that the evidence was sufficient to establish the inmate's guilt. Ibid.
The Court also commented favorably on revised forms prepared by the Department of Corrections providing, among other items, space for the hearing officer to explain why an inmate's request for confrontation and cross-examination was denied, and a place for the inmate or his counsel substitute to sign an acknowledgment that the information on the form accurately reflected what took place at the adjudicatory hearing. Id. at 199.
In this case, neither Merritt nor his counsel substitute signed the Adjudication of Disciplinary Charge form acknowledging that the report accurately reflected what happened at the adjudicatory hearing. Specifically, the form provides in item 16 as follows:
16. Inmate or counsel substitute acknowledges that the information in lines 1 - 15 accurately reflects what took place at the inmate disciplinary hearing.
After this statement, the form contains signature lines for the inmate and counsel substitute. In this case, the signature lines are empty; neither Merritt nor his counsel substitute signed here.
The form does provide for situations where an inmate and counsel substitute refuse to sign the form. Specifically, the next line on the form reads:
If both the inmate and counsel substitute (if any) refuse to sign, reason stated for refusal, if any[.]
The line for an explanation was left blank. The next line on the form reads: "Inmate and counsel substitute refused to sign." After this statement, Merritt's counsel substitute signed. Thus, neither Merritt nor his counsel substitute signed the form agreeing that it correctly recorded events, nor did the hearing officer provide any reasons why they had not done so.
We were confronted with a similar situation in Johnson v. New Jersey Department of Corrections, 298 N.J. Super. 79 (App. Div. 1997). In Johnson, the inmate maintained he had been denied the right to cross-examine a crucial witness. Id. at 81. The Adjudication of Disciplinary Charge form indicated that he had not requested to do so. Id. at 82. However, the inmate had not signed the form acknowledging that it accurately reflected what happened at the hearing, and the hearing officer did not indicate that the request for an appearance by the witness was denied for justifiable reasons. Id. at 83. There we stated that "[b]ecause the Department of Corrections failed to follow its own procedures to document that Johnson did not want to call Jones as a witness, we accept Johnson's contrary contention" and remanded. Ibid.
Similarly, here because neither Merritt nor his substitute counsel signed the Adjudication of Disciplinary Charge form acknowledging that it correctly reflected what happened at the hearing and because the hearing officer did not provide an explanation for why they failed to do so, we remand for a rehearing on the disciplinary charge.
Merritt also maintains that he should have been allowed to submit to a polygraph test. We note that in serious disciplinary matters involving matters of credibility, the administrator or his designee may request polygraph tests.
N.J.A.C. 10A:3-7.1(a) and 10A:4-11.4(d). While inmates may request a polygraph test, they to not have an unqualified right to one. Johnson v. N.J. Dep't of Corr., supra, 298 N.J. Super. at 83; see N.J.A.C. 10A:3-7.1(c) (providing that "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request").
We will not interfere with the administrator's discretion to deny a polygraph test unless we find that exercise of discretion to be "arbitrary, capricious or unreasonable." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). In exercising that discretion, the administrator must consider whether denial of the request "will impair the fundamental fairness of the disciplinary proceeding." Ibid. Factors that may do so, include inconsistent statements by corrections officers, or other documentary or testimonial evidence that involve credibility, "such as a statement by another inmate or staff member on the inmate's behalf." Ibid.
Such factors are not present here. First, Merritt has no evidence to support his assertion on appeal that he requested a polygraph. Second, based on the record before us, denial of a polygraph test was not arbitrary, capricious or unreasonable, nor did it "impair the fundamental fairness of the disciplinary proceeding." Ibid. Two correction officers witnessed the attempted assault, and the only testimony Merritt has of a contrary version of events is his own.
The other issues raised in this appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed and remanded for a rehearing.