October 4, 2010
MICHAEL MARTINEZ, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Parrillo and Yannotti.
This is a prison disciplinary appeal. Michael Martinez, an inmate confined at the Albert C. Wagner Youth Correctional Facility, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.005, threatening another with bodily harm in violation of N.J.A.C. 10A:4-4.1(a). We affirm, as we are satisfied that appellant was afforded all the process due, and the finding of guilt is supported by substantial credible evidence.
On December 2, 2008 at around 1:15 p.m., Senior Corrections Officer (SCO) Gerald Charles was returning inmate Joel Diaz to his housing unit from the recreation yard because Diaz was wearing unauthorized shoes. Consequently, SCO Charles advised Diaz that the shoes would be confiscated. As he was being escorted back to his cell by SCO Willie McClendon, Diaz called SCO Charles a "punk ass I.A. mother fucker" and replied that he "will give [Charles] the sneakers." At this time, Diaz's cellmate, Martinez, exited the cell, passing SCO McClendon as he approached the front of the tier. After putting on his boots and lacing them up, Martinez, together with Diaz, directly stated to SCO Charles, "[f]uck you I.A. Mother Fucker," we will fuck you up," and "we will kill you, I.A." The inmates' threat was witnessed by SCOs McClendon and Kimberly Boyd-Twitty. In an effort to neutralize the situation, the inmates were returned to their cell and locked in. SCO McClendon exited the unit, secured the tier door, and radioed Sergeant Robert Lovitt. Upon Lovitt's arrival, the inmates were removed from their cell, one at a time, handcuffed, escorted to the infirmary for evaluation, and then placed in pre-hearing detention.
The next day, Martinez was served with the charge of threatening another with bodily harm. He was provided counsel substitute, in-prison confrontation with SCOs Charles, McClendon, and Boyd-Twitty, and witness statements from three inmates who wrote on Martinez's behalf. The hearing proceeded before an impartial tribunal, before whom Martinez gave the following statement:
That makes no sense that I would run out of the cell. Diaz had to give in his sneakers. When I came out there Charles was trying to get him to say something. Charles kept saying 'What you say?' It was his tone. I looked at Charles and laughed at him. Charles said 'pussy, suck my dick.' McClendon was not on the tier. I said 'you're a fag.'
After the presentation of evidence, the hearing officer found Martinez guilty of the *.005 charge, having credited the State's account over the inmates' versions:
I/M Witness D1 Shelley - was not a witness to this incident and appears to be fabricating the facts by stating that SCO McClendon 'told' him to 'tell' Diaz and Martinez NOT to take it personal but he has to corroborate with an officer's charge 'no matter what.' An officer is NOT required to corroborate with another officer and it is hard to believe that an officer would tell this to an [inmate] and then have him go tell them that.
Martinez was sanctioned fifteen days detention, with credit for time served; 365 days of administrative segregation; 365 days loss of commutation credits; and thirty days loss of recreation privileges. On administrative appeal, the guilty finding and sanctions were affirmed.
We find no basis to disturb the result, as we are satisfied that the DOC's ultimate determination is sufficiently grounded on substantial credible evidence and should be affirmed. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (noting that courts' review of decisions of administrative agencies is ordinarily limited to whether the decisions were arbitrary, capricious, or unreasonable, or were not supported by substantial credible evidence in the record).
We are also satisfied that, contrary to appellant's arguments, the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). Martinez timely received notice of the charge. The matter was thoroughly and timely investigated. Martinez requested, and was provided, counsel substitute to assist him in his representation. Martinez and counsel substitute were shown the adjudication report and all documentary evidence submitted at the courtline adjudication. Martinez was permitted to make a statement and availed himself of that opportunity, as did his counsel substitute. In sum, Martinez was afforded an impartial hearing at which time he was free to confront or cross-examine adverse witnesses, and produce witness statements on his behalf. Under the circumstances, we are satisfied that Martinez received all the process to which he was entitled.
As to the denial of Martinez's request for a polygraph, N.J.A.C. 10A:3-7.1(a) provides that "[a] polygraph examination may be requested by the Administrator" of the prison:
(1) When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or (2) As part of a reinvestigation of a disciplinary charge, when the Administrator... is presented with new evidence or finds serious issues of credibility. [N.J.A.C. 10A:3-7.1(a).]
However, "'[a]n inmate's [mere] request for a polygraph examination shall not be sufficient cause[, in and of itself,] for granting the request.'" Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (quoting N.J.A.C. 10A:3-7.1(c)). Moreover, N.J.A.C. 10A:3-7.1 "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). Rather, "an inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20. As to fundamental fairness, the Ramirez court held that: Impairment may be evidenced by inconsistencies in the [officers'] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be effected [sic] when there is sufficient corroborating evidence presented to negate any serious question of credibility. [Id. at 24.]
Here, the charge was based upon Martinez's threat to SCO Charles, which was witnessed by SCOs McClendon and Boyd-Twitty. The hearing officer considered these eyewitness accounts against the various inmates' versions and thus was in a position to weigh the credibility of all the evidence. Therefore, we are satisfied that in adjudicating the *.005 charge, there was no issue of credibility that could not be determined on the record amassed at the hearing, and the denial of Martinez's request for a polygraph did not compromise the fundamental fairness of the disciplinary process.
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