September 14, 2010
JUDITH VAZQUEZ, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 13, 2010
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 "[t]here is something wrong with this man, he is a very troubled person and needs evaluation." As already indicated, this was not a proper invocation of the grievance procedure.
An investigation ensued, conducted by Lieutenant B. LaButa. Based on that investigation, it was determined that an alleged conversation regarding delivery of Vazquez's commissary supplies had taken place but that SCO Fike was not present during that conversation, and that the conduct and assertions attributed to Fike by Vazquez were unfounded. For example, the statement given by Inmate Moche Raymond, a first shift inmate worker, established that as Vazquez's commissary was being delivered, Raymond stated "CO Orqueira was making a statement to someone else that I/M Vazquez should not need to get her commissary delivered." Raymond added "[h]e [Orqueira] did not make the statement to me. Officer Fike was not present when the statement was made."
The investigator obviously concluded that Vazquez had communicated a false written accusation about SCO Fike to Ms. Adams. Accordingly, a disciplinary report and charge were served on Vazquez, charging her with prohibited act *.305, lying and providing a false statement to a staff member. Significantly, the disciplinary report included the following description of the alleged infraction:
On 4/14/09, it was discovered that I/M Vazquez, 17048, had written a letter to Ms. Adams that states that [SCO] Fike had stopped the delivery of her commissary.
This statement is false, this I/M's commissary is always delivered to her due to her medical restrictions.
Ultimately, the hearing officer did not find that Vazquez lied by having stated that Fike "had stopped the delivery of her commissary," and, other than in the disciplinary report itself, no one contended that Vazquez said her commissary deliveries were actually stopped. Rather, the substance of the false statement established by the proofs at the hearing was different. The hearing officer noted the following in the summary of evidence relied on to reach his decision:
Vazquez is charged with providing a false statement that SCO Fike instructed 1st shift officers to stop her commissary from being delivered. She admitted writing the letter. Her witness confirms that the commissary was delivered, and SCO Fike was not present when comments about the delivery of the commissary were made. Vazquez admits she has no knowledge that SCO Fike did this, and was guessing that he did. The officer's reports (A-1&A4) contradict her statements.
There is substantial evidence of guilt.
As the DOC acknowledges in its letter brief in response to this appeal, though prisoners are not entitled to the full spectrum of rights due to a criminal defendant, they are entitled to certain limited protections prior to being subjected to disciplinary sanctions. Avant, supra, 67 N.J. at 520-24. Among the minimum requirements of due process recognized by the Court is the right to written notice of the claimed violations. Id. at 525. See also McDonald, supra, 139 N.J. at 194; Jacobs v. Stephens, 139 N.J. 212 (1995) (reaffirming the minimum requirements set forth in Avant).
Relying on a standard established in Wolff, supra, 418 U.S. at 563-64, 94 S.Ct. at 2978, 41 L.Ed. 2d at 955, for minimum federal due process requirements for prison disciplinary hearings, our New Jersey Supreme Court adopted a twenty-four hour standard mandating that "written notice . . . be given to the disciplinary action defendant in order to inform him of the charges and to enable him to marshal the facts and prepare a defense." Avant, supra, 67 N.J. at 525. See also N.J.A.C. 10A:4-9.2. "Deviation from the twenty-four-hour rule . . . should be permitted only in extreme circumstances. Such deviation may prejudice a defendant inmate and is not acceptable under the governing law." Jacobs, supra, 139 N.J. at 218.
Here, the disciplinary report charged that Vazquez had made a specific false statement. The report stated the inmate "had written a letter to Ms. Adams that states that OFC Fike had stopped the delivery of her commissary." A close examination of the letter written by Vazquez reveals that that she did not assert, as charged, that Fike had stopped the delivery of her commissary. Indeed, the letter stated "my commissary has been delivered for well over six years." Her complaint to Ms. Adams was that Fike had "instructed 1st shift officers working with him to stop my deliveries." In short, there is an undeniable disparity between what the disciplinary report charged and the evidence which formed the basis for the adjudication of guilt.
In reviewing DOC decisions respecting discipline of inmates, we apply the standard of review applicable to final agency decisions in general. As a result, our review is limited to a determination of "'whether the findings made could reasonably have been reached on sufficient credible evidence in the record', considering the 'proofs as a whole . . . .'" Close v. Kordulak, 44 N.J. 589, 599 (1965) (citation omitted). "[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or 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) (citation omitted). The burden of demonstrating that the action of the agency was arbitrary, capricious or unreasonable rests upon the individual who is challenging that action. McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002).
Applying those standards, we conclude that there is no substantial credible evidence that Vazquez made the false statement that SCO Fike "had stopped the delivery of the commissary." We accept that she communicated a written statement to the assistant administrator of the facility that included a false or inaccurate statement about Fike that was apparently intended to substantiate Vazquez's view that Fike had been allowed too much authority and was abusing it. At oral argument, her pro bono counsel characterized that written statement as either privileged, as part of a grievance process - a characterization we reject - or mistaken, rather than false. The DOC countered that Vazquez's written statement was neither privileged nor mistaken, adding that it was not made in good faith because she did not attempt to ascertain whether Fike had been involved. Neither characterization directly influences our decision, as we emphasize the narrow basis for our decision.
It is the stark disparity between the substance of the false statement alleged in the disciplinary report and the false statement which actually served as the basis for the adjudication of guilt that compels our decision. Even though the documentary record tends to support the hearing officer's conclusion that Vazquez, without any apparent basis other than her history of problems with Fike and her desire to "get this man off [her] back," blamed Fike for instructing others to stop Vazquez's commissary deliveries, that is not the charge contained in the disciplinary report that put Vazquez on notice of the substance of the infraction against which she was required to defend. Under the circumstances, the minimal requirements of procedural due process mandated by Avant and its progeny were not satisfied. Vazquez was not given advance written notice of the charge against which she was eventually called upon to defend. Stated differently, the findings of the hearing officer and the DOC could not have been reached on the credible evidence as a whole, and the result was unfair and arbitrary. Accordingly, we reverse and vacate the adjudication of guilt.
Finally, we note that Vazquez also contends she was denied due process because the hearing officer was biased, openly hostile, and intimidating toward her. She alleges not only that the hearing officer did not allow her to call any witnesses or to cross-examine any adverse witnesses, but she also alleges that when she tried to inquire about use immunity, the hearing officer told her to "shut the h_ _ _ up, how about if I boot you out of here." Vazquez submits that she was frightened into silence, and her feelings of fear and intimidation were intensified when the hearing officer locked the door before the proceeding began. She argues that as a result of the hearing officer's attitude and conduct, the finding of guilt should be set aside. The record is devoid of evidence to support these allegations.
In apparent recognition that there is no evidence of the hearing officer's attitude or conduct in the record, Vazquez suggests that the DOC should consider installing video sound cameras inside the hearing room which can show how these hearings are conducted and serve as a deterrent to unfair practices. We do not doubt that a reliable memorialization of the nature of the proceedings would be beneficial to the appellate process, but the Supreme Court has not seen fit to compel the undertaking suggested by Vazquez. In fact, the Court has expressly stated it does not require verbatim sound recordings in the balancing of prisoner's interests against public interests. See, e.g., McDonald, supra, 139 N.J. at 202.
In McDonald, the Court stated "[a]lthough prison officials may choose to tape-record or video-tape disciplinary hearings, this Court will not require them to do so because neither New Jersey's 'fairness and rightness' standard nor procedural due process standards mandates tape-recording." Ibid. Under such circumstances and in the absence of any other corroboration of the hearing officer's "attitude and conduct," we have no basis to set aside the finding of guilt on that ground.
To the extent we have not addressed any remaining arguments raised by Vazquez in her briefs or at oral argument, it is because such arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Reversed. The adjudication of guilt vacated.
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