On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2010
Before Judges Lisa and Reisner.
Hector C. Morales, a prison inmate, appeals from a finding that he committed prohibited act *.306, disrupting the orderly running of the institution, N.J.A.C. 10A:4-4.1(a). We remand this matter to the Department of Corrections (DOC) for further proceedings consistent with this opinion.
The inmate is serving a ten-year sentence with a five-year parole bar for burglary and theft. The underlying facts giving rise to this appeal appear largely undisputed. According to the report of Sergeant Dilks, on January 20, 2009, the inmate told a corrections officer, who also happened to be named Morales, that the inmate "had not slept in four days and that medical won't give him his meds." He also "stated that he was going to kill himself." Officer Morales called Sergeant Dilks. Before Dilks could arrive, the "inmate approached the officer in an aggressive manner with clenched fists." The officer called in an emergency "Code 33." There followed a ten-minute lockdown of the institution and, later, a ten-minute delay in the daily "pill call" for the inmates.
The inmate was placed in a holding cell, where he "became very violent by standing at the back of the cell and running full speed into the door, doing this many times injuring himself." When Dilks ordered him to stop, the inmate did so and then told Dilks that he "wanted to kill himself." The inmate was placed on suicide watch and charged with prohibited act *.306, disrupting the institution, and prohibited act *.005, threatening an officer.
Prior to adjudicating the charges, the hearing officer sent the inmate for evaluation by a psychologist and obtained a report, which was not provided to the inmate.*fn1 At the hearing, the inmate called no witnesses, but offered as a defense that he had not been given his prescribed medications, "hadn't slept in four days," "has been on and off psych meds" and "may have not been in the right frame of mind" at the time of the incident.
The hearing officer found the inmate guilty of violating *.306, but not *.005, and imposed sanctions of 15 days detention, 365 days administrative segregation, the loss of 365 days of commutation time and 30 days loss of recreational privileges. The hearing decision reasoned that the inmate "threaten[ed] to harm himself if he does not get his way and then move[d] towards officer with clenched fists. This type of behavior is not to be tolerated." In his administrative appeal, the inmate requested leniency based on his mental illness. In rejecting the appeal, the prison's associate administrator concluded that "the issues you raise, in your appeal, that you had suicidal thoughts at the time of the incident could not be substantiated based on your professional report."
On this appeal, the inmate contends that the lockdown arose from his suicide threat and was not due to any threat to the officer. In its brief, the State agrees that the officer called a Code 33 and that the institution was temporarily locked down because the inmate threatened to kill himself, not because the inmate allegedly threatened the officer. The inmate further contends that the incident arose from and was symptomatic of his underlying mental problems and the fact that he had not received his psychiatric medication. He contends that although a psychological report was issued, the hearing officer did not consider it. He therefore argues that we should remand this case to the hearing officer for reconsideration. We agree that the matter must be remanded.
The pertinent regulations require the prison hearing officer to consider psychological evidence where it may be relevant:
(d) The Disciplinary Hearing Officer/ Adjustment Committee shall determine the need to obtain a psychological/psychiatric evaluation based upon the nature of the infraction, the determination from the Mental Health Unit regarding whether the inmate ...