On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
This is a prison disciplinary appeal. Appellant, Tehuti Atum-Ra, who is serving a life sentence for first-degree murder, N.J.S.A. 2C:11-3, is an inmate currently confined at East Jersey State Prison in Rahway. He appeals a final determination of the Department of Corrections (DOC) adjudicating him guilty of disciplinary infraction .502, "interfering with the taking of count," contrary to N.J.A.C. 10A:4-4.1. We affirm.
The record discloses that on April 3, 2009, at approximately 3:40 p.m., Senior Correction Officer (SCO) Ford commenced her routine formal count of inmates. When she reached appellant's cell and called his name, he did not respond. SCO Ford called Atum-Ra's name five times and still received no response. The SCO then kicked his cell door, but Atum-Ra did not respond. Appellant's cellmate also called out to him and pulled on the blanket covering him but received no response. SCO Ford stopped her count and called for medical and custody staff. Upon their arrival, Atum-Ra finally responded.
Atum-Ra was charged with committing disciplinary infraction .502, "interfering with the taking of count," and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, violations of N.J.A.C. 10A:4-4.1. He was served with the charges and placed in pre-hearing detention. He pled not guilty to the charges.
The disciplinary hearing occurred on April 6, 2009. The hearing proceeded solely on the .502 charge. The prison presented reports from SCOs Ford, Sullivan and Egan, as well a report from Lieutenant Baez, a nursing report and a Use of Force report. Atum-Ra was afforded the assistance of counsel substitute. He declined the opportunity to call witnesses. He testified that he fell asleep with his headphones on and, as a result, did not hear his name called during the count.
The hearing officer adjudicated Atum-Ra guilty of the charge based upon the evidence submitted. The hearing officer recommended imposition of the following sanctions: fifteen days of detention, with credit for time served, ninety days of administrative segregation, and sixty days loss of commutation time. Atum-Ra administratively appealed the adjudication and sanctions imposed to the prison's assistant superintendent, who upheld the decision. He concluded that there was "nothing to support the Appellant's claim of misinterpretation of the facts[,] nor were there any violation[s] of standards."
On appeal, Atum-Ra contents he 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." We have considered appellant's argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Moreover, appellant was provided with adequate due process protections in the processing and hearing of the charge filed against him. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975).
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