On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Stephanie McDougald, an inmate currently incarcerated at New Jersey State Prison, appeals from a disciplinary sanction imposed as a result of her commission of an institutional infraction. We affirm.
On April 30, 2009, Hearing Officer McGuire found McDougald guilty of violating N.J.A.C. 10A:4-4.1(a), prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person." The sanction imposed for the violation was fifteen days detention, with credit for time served, 120 days loss of commutation credit, and 120 days of administrative segregation. McDougald filed an appeal to the Commissioner of the Department of Corrections (DOC), and on May 12, 2009, Assistant Superintendent Jim Barnes upheld the adjudication and resulting sanction.
The charge was lodged on April 25, 2009, when Senior Corrections Officer Atkins reported that as she approached McDougald's cell, McDougald said, "I want you to grow some motherf---ing heart and pop this door on Tuesday!" and "[y]eah Bitch I'm mad I'm gonna f--k you up!" McDougald claims that Atkins had been harassing her because she had agreed to testify against her on behalf of another prisoner in an unrelated lawsuit.
McDougald's hearing concluded on April 30, 2009. McDougald entered a not guilty plea, requested and was granted assistance of counsel substitute, and presented two witness statements. She now appeals on the basis that the charge is a complete fabrication and that the hearing officer unfairly ignored her proofs. We are not convinced by these claims of errors.
Prisoners are entitled to receive written notice of the charges against them at least twenty-four hours prior to the hearing. Avant v. Clifford, 67 N.J. 496, 525 (1975). They are guaranteed an impartial "hearing tribunal," which may consist of personnel from the Central Office staff. Id. at 525-26. A timely hearing must be conducted, during which they may present evidence and witnesses, and are given the opportunity to cross-examine adverse witnesses. Id. at 528-30. Counsel substitute will be appointed if they "cannot adequately collect or present the evidence on [their] own behalf." Id. at 529. Prisoners are entitled to written notification of the evidence the hearing officer relied upon, and the reasons for any sanctions imposed. Id. at 531-32.
All the requisite procedural safeguards were met in this case, including the assignment of counsel substitute and McDougald's presentation of witness statements. Both McDougald and counsel substitute were permitted to make a statement on her behalf. McDougald clearly articulated her defense that Atkins filed the charge in retaliation and that this incident was consistent with the prior harassment she suffered. In fact, McDougald and counsel substitute were shown the adjudication report, and counsel substitute's signature on line sixteen of that report acknowledges that it accurately reflects the nature of the hearing.
The hearing officer found the officer's version more credible. He also found that the version of the incident given by one of McDougald's witnesses supported the officer's statement of events, including a reference the witness made to McDougald saying to Atkins that she wanted her "to grow some heart."
An adjudication of guilt of a disciplinary infraction must be supported by "substantial evidence." See Jacobs v. Stephens, 139 N.J. 212, 222 (1995). See also Avant v. Clifford, supra, 67 N.J. at 530; N.J.A.C. 10A:4-9.15(a). We "reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). McDougald's conduct indisputably falls within the purview of disciplinary infraction *.005. The hearing officer's determination as to credibility is entitled to deference. State v. Locurto, 157 N.J. 463, 474 (1999). This deference is particularly appropriate where McDougald's own witness included one of the very phrases Atkins reported.
Nothing in the record would cause us to disturb the hearing officer's conclusion. It is neither "arbitrary, capricious [n]or unreasonable" and is "supported by substantial evidence in the record as a whole." Ibid. (citation omitted).
Having found that the evidence substantiates the charge as written, Assistant Superintendent Barnes denied McDougald's request for leniency because of her "past [d]isruptive behavior," "violent history," and "past threats against staff." ...