On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and C. L. Miniman.
Appellant Judith Vazquez, an inmate at Edna Mahan Correctional Facility (EMCF), appeals from the final agency decision of the Department of Corrections (DOC), which upheld the finding of the hearing officer that Vazquez was guilty of prohibited act *.305, lying to a staff member, but which modified the sanction imposed by the hearing officer. The DOC suspended the imposed sanction of five days detention for sixty days and, so long as Vazquez did not commit another infraction within the sixty-day period, she would not be required to serve the five days detention. Although the briefs of the parties disclose that Vazquez did not commit any further infractions within the sixty-day period, we agree with Vazquez that the appeal is not moot. Cain v. N.J. State Parole Bd., 78 N.J. 253, 255 (1978) (where completion of a sentence does not eliminate potential future effects of the adverse adjudication, the issue is not moot). Moreover, based upon our independent review of the documentary evidence in the record, we agree with Vazquez's assertion that the evidence adduced at the hearing does not support the finding of guilt for the infraction alleged.
In this appeal, Vazquez raises the following arguments:
POINT I: THE FINDING OF GUILT SHOULD BE REVERSED BECAUSE THE EVIDENCE ADDUCED AT THE HEARING WAS NOT SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING OF GUILT FOR THE INFRACTION ALLEGED.
POINT II: THE FINDING OF GUILT SHOULD BE REVERSED BECAUSE THE HEARING OFFICER DID NOT PROVIDE MS. VAZQUEZ WITH AN OPPORTUNITY TO PRESENT A DEFENSE AT THE HEARING.
POINT III: THE FINDING OF GUILT SHOULD BE SET ASIDE BY THIS COURT BECAUSE MS. VAZQUEZ WAS PUNISHED FOR EXERCISING HER CONSTITUTIONAL RIGHT TO SUBMIT AN INSTITUTIONAL GRIEVANCE.
Because we accept appellant's first argument and reverse on that basis, we reverse and vacate the adjudication of guilt.
Initially, however, we note that Point III, advanced forcefully at oral argument, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The United States Supreme Court has noted that due process rights of convicted persons serving time behind bars are not the same as those of free persons or persons merely charged with a crime.
Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 2974-75, 41 L.Ed. 2d 935, 950-51 (1974). Our own State Supreme Court has extended state due-process guarantees beyond the federal constitutional minimum, but has recognized that in New Jersey, "the administrative rules and regulations that govern the fulfillment of due-process rights for the prisoners are balanced against the needs and objectives of the prison." McDonald v. Pinchak, 139 N.J. 188, 194 (1995) (citing Avant v. Clifford, 67 N.J. 496, 561 (1975)).
The procedure to be followed by an inmate in processing a grievance or complaint is carefully prescribed in the Inmate Remedy System Procedure, as the "mechanism for inmates to bring complaints, concerns, questions, problems and/or grievances to correctional facility administration for resolution." That procedure was not properly invoked in this case, and Vazquez's right to invoke available procedural remedies to assert a grievance or complaint relative to issues or conditions under the jurisdiction of the DOC is not unduly impaired by following the established procedure. In particular, the guidelines specify that inmates are required to utilize the Inmate Remedy System Forum, which is to be placed in the correctional facility box marked "INMATE REMEDY SYSTEM FORMS" only. Further, the guidelines specify that "inmates are not to direct the Inmate Remedy System Form to any specific person or department. The institutional Inmate Remedy System coordinator will direct the request to the appropriate person or department to answer the request."
The disciplinary charge against Vazquez arose out of a letter she wrote to the EMCF Assistant Administrator Helen Adams complaining about Senior Corrections Officer (SCO) Fike. In that letter, Vazquez wrote that Fike, who she alleged had previously tried to order her to do excessive work against medical restrictive orders, "now . . . has taken a sneaky route and instructed 1st shift officers working with him to stop my commissary from being delivered, while using foul language." She implored Ms. Adams, "please, I beg of you get this man off my back! He has been allowed too much authority and he's abusing it." In her letter, Vazquez offered her opinion that ...