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Mark Bartee v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 15, 2011

MARK BARTEE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 January 18, 2011 - Decided Before Judges Reisner and Alvarez.

In this prison disciplinary matter, Mark Bartee, a state inmate, appeals from a final New Jersey Department of Corrections (DOC) administrative decision issued on May 22, 2009. Bartee was adjudicated guilty of disciplinary infraction *.210, possession of items not authorized for receipt or retention by an inmate; *.306, conduct which disrupts or interferes with the orderly running of a correctional facility; *.005, threatening another with bodily harm; and *.803/.002, the attempted assault of any person. See N.J.A.C. 10A:4-4.1. We affirm.

On the *.210 adjudication, to which he pled guilty, Bartee was sanctioned to confiscation of the items. On *.803/*.002, Bartee was sentenced to 15 days detention with credit for time served, 365 days of administrative segregation, and 365 days loss of commutation credits. A sanction of 365 days of administrative segregation and 365 days loss of commutation time was imposed on *.005 consecutive to the sentence on the *.803/*.002 charge. On *.306, Bartee was sentenced to 15 days detention, 180 days of administrative segregation, and 180 days loss of commutation time, suspended for 60 days.

On May 23, 2009, Bartee administratively appealed the initial decision made by Hearing Officer Ruggiero. On May 27, 2009, Associate Administrator Don McNeil affirmed the adjudication and sanctions. On June 24, 2009, Bartee filed an appeal. As a result of Bartee's request for a polygraph, which was initially approved and then rescinded, the matter was remanded at the State's request to allow the proper administrative official to decide the issue.

Subsequent to the second administrative denial of the polygraph request, Hearing Officer Jantz conducted a rehearing of the *.005, *.803/*.002, and *.306 charges. Jantz found Bartee guilty of the charges, but reduced the sanctions. On the *.005 and *.803/*.002 charges, Bartee was sanctioned to a combined 15 days detention with credit for time served, 365 days administrative segregation with credit for time served, and 365 days loss of commutation credits, suspended for 60 days. On the *.306 charge, the sanction was modified to 15 days detention, 180 days administrative segregation, and 180 days loss of commutation time, suspended for 60 days. On May 14, 2010, Bartee administratively appealed. On May 21, 2010, Associate Administrator Ronald D. Riggins upheld Jantz's adjudication and sanctions. Bartee contends the decision was not based upon substantial evidence in the record, his procedural due process rights were violated, and the hearing officer erred because he did not disclose a written statement from a confidential informant.

The events leading to the charges commenced on April 12, 2009, when contraband was located in Bartee's cell. Two days later, Bartee arrived at the Bayside infirmary and saw Senior Corrections Officer E. Bland. Upon seeing Bland, Bartee, in the presence of Senior Correction Officer Flem, Nurse Fidler, and an unidentified confidential informant, began to yell at Bland, "I'm going to f--- you up. I'm tired of your s---, mother f-----." Bartee lunged at Bland and took a swing at him with a clenched fist. Bartee was taken to the ground but continued to struggle, punching and kicking at the officers before finally being restrained. A "code 33" was called, and other officers responded to the area. "Pill call" had to be stopped for approximately twenty minutes.

During the investigation conducted prior to the hearing, Bartee supplied the name of one witness, Harry McGonigle. When interviewed, McGonigle stated he was outside the area when the incident occurred and saw nothing. Bartee also declined the opportunity to confront and cross-examine witnesses. Bartee requested and was assigned a counsel substitute. At his request, the prison authorities showed him a video taken at the time of the incident, which does not depict the event itself but shows surrounding areas and unidentifiable staff members.

Prisoners are entitled to limited protections before being subjected to disciplinary sanctions. They are:

(1) Written notice of the charges at least 24 hours prior to the hearing,

(2) An impartial tribunal, which may consist of personnel from the central office staff at the Department, (3) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute,

(4) A limited right to call witnesses and present documentary evidence in defense to the charges,

(5) A limited right to confront and cross-examine adverse witnesses,

(6) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. [Avant v. Clifford, 67 N.J. 496, 525-28, 529, 529-30, 533 (1975).]

These procedural due process requirements balance the "security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmate[]." McDonald v. Pinchak, 139 N.J. 188, 202 (1995). In this case, all procedural requirements were met.

Pursuant to N.J.A.C. 10A:3-7.1(a), a prisoner may be granted his request for a polygraph test when there are critical credibility issues regarding serious incidents. That a request for a polygraph is made by an inmate is insufficient to trigger administration of the test, Johnson v. N.J. Department of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997), and it is not intended that polygraphs be administered on a routine basis.

N.J.A.C. 10A:3-7.1; Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 23-24 (App. Div. 2005).

Contrary to Bartee's assertion, there is simply no serious credibility issue in this case. The hearing officer reviewed statements from Bland, Flem, and Fidler, among others. Bartee was offered and refused the opportunity to cross-examine these eyewitnesses. Bartee's only witness, McGonigle, denied having knowledge because he was not present during the incident. As no serious credibility questions existed, denial of Bartee's request for a polygraph did not deny him the right to a fundamentally fair process.

"[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it 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).

An adjudication of guilt of an infraction must be supported by "substantial evidence." N.J.A.C. 10A:4-9.15(a). Substantial evidence has been defined as that which "a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). The materials reviewed by the hearing officer established substantial credible evidence of Bartee's guilt.

Bartee also contends that his adjudication must be reversed because the hearing officer did not disclose written statements from a confidential informant. The confidential source did not submit a written statement, but was only interviewed, and the interview reduced to writing. Bartee offers no fact or law that mandates he be shown the actual notes. The confidential source's statement was read to him, and it added nothing to the accounts given by staff members, whose identities were known and whom Bartee declined to cross-examine. In light of the other substantial credible evidence and the security concerns arising should the source's identity become known, the decision not to give Bartee the interview notes was inconsequential.

The Avant procedural requirements were met. The administrative decision is supported by substantial credible evidence and entitled to significant deference.

Affirmed.

20110215

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