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Whitted v. New Jersey Dep't of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 9, 2010

CHARLES L. WHITTED, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 29, 2010

Before Judges Skillman and Wefing.

Appellant Charles L. Whitted appeals from a final decision of the Department of Corrections, which determined that he had committed prohibited act .451, "failure to follow safety or sanitation regulations," in violation of N.J.A.C. 10A:4-4.1(a), and imposed a sanction of fifteen days detention and ninety days administrative segregation, which was modified by the prison administrator on appellant's internal administrative appeal to suspend the period of administrative segregation for sixty days.

The disciplinary proceedings emanated out of the efforts of the correctional staff at the Adult Diagnostic and Treatment Center, where appellant was incarcerated, to combat a contagious skin rash within the prison. The inmates were given a cream to apply and wear for eight hours. Two sets of their clothing were gathered, placed in plastic bags and put in isolation in the library. They were told that, upon changing, they had to put on one of those sets of clothing. In the early morning on July 3, 2009, appellant was given permission to shower by a correctional officer. After showering, appellant put on clothes he had in his locker rather than getting a set from the library.

The hearing officer found that appellant had committed prohibited act .451 by putting on regular clothing from his locker after taking a shower rather than the sanitized clothing kept in the library.

In challenging this administrative determination, appellant presents the following arguments:

POINT I:

THE FINAL DECISION OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS (A.D.T.C.) SHOULD BE REVERSED OR DISMISSED BECAUSE THE FINDING OF GUILT IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE APPELLANT VIOLATED SAFETY AND SANITATION REGULATIONS.

POINT II:

THE TRANSCRIBED RECORDS OF THE DISCIPLINARY PROCEEDINGS ARE ILLEGIBLE EFFECTING THE APPELLANT'S ABILITY TO EFFECTIVELY APPEAL THE DECISION OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS AND SHOULD BE REVERSED OR DISMISSED.

POINT III:

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD NOT BE AFFIRMED BECAUSE THE DISCIPLINARY HEARING DID NOT COMPORT WITH PROCEDURAL DUE PROCESS REQUIREMENTS WHEN THE DISCIPLINARY HEARING OFFICER REFUSED TO ALLOW THE APPELLANT TO CALL A CRUCIAL MATERIAL WITNESS IN DEFENSE OF THE APPELLANT.

We agree with appellant that the hearing officer's adjudication of the disciplinary infraction was illegible. We again admonish the Department of Corrections, as we have in the past, to require its hearing officers to prepare legible reports. However, respondent included a typed copy of the hearing officer's report in the appendix to its brief, and appellant submitted a reply brief that afforded him an opportunity to comment upon any part of that report he had been unable to read when he prepared his original brief. Therefore, appellant was not prejudiced by the illegibility of the hearing officer's report.

Appellant's claim that he was deprived of the assistance of counsel substitute is not supported by the hearing officer's report. Furthermore, appellant did not allege in his administrative appeal to the prison administrator that he had been deprived of the assistance of counsel substitute. Therefore, this claim was not raised before respondent and thus was not preserved for appellate review. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Respondent does not dispute that Senior Corrections Officer Anderson authorized appellant to take a shower, and appellant does not allege that Anderson authorized him to put on the clothing in his locker rather than the sanitized clothing stored in the library. Therefore, even if appellant were deprived of the opportunity to call Anderson as a witness, appellant was not prejudiced.

Appellant's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E).

Affirmed.

20100809

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