On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2011
Before Judges Graves and Messano.
David Cardonick is currently serving a sentence for second-degree sexual assault at the Adult Diagnostic and Treatment Center (ADTC) in Avenel. He appeals from the final decision of the Department of Corrections (DOC) adjudicating him guilty of committing prohibited act .254 ("refusing to . . . accept a . . . housing unit" assignment). See N.J.A.C. 10A:4-4.1(a). We have considered the arguments Cardonick raises in light of the record and applicable law. We affirm.
On January 21, 2010, Cardonick was released from detention where he had been placed during an ongoing investigation. He was assigned to "two wing" of the facility. At approximately 10:25 a.m., Cardonick told the supervising sergeant that he could not live at that location. The sergeant advised Cardonick that he was not free to choose his housing assignment and ordered him to report to two wing. Cardonick refused and the disciplinary charge was lodged against him. He was medically cleared and placed in pre-hearing detention. During the ensuing investigation, Cardonick admitted his guilt and requested appointment of counsel substitute.
At the adjudication hearing on January 26, Cardonick declined the opportunity to present any witnesses. He offered a written statement in which he claimed other inmates told him that a "2nd shift officer" told them that he did not want Cardonick "on his unit." As a result, Cardonick refused to report to his housing assignment, sought to be moved to a different unit, and, when that was refused, requested to be placed in protective custody. Cardonick asked the custodial sergeant if he would be placed in pre-hearing detention by "get[ting] . . . a charge." When told that refusal would result in discipline, Cardonick again refused the new housing assignment. Cardonick claimed that "all the officers in [ADTC]" knew about a prior accusation that he "threaten[ed] an officer" and "no one [wanted him] on there [sic] unit." Although that charge was ultimately dismissed, Cardonick wrote that he was "stuck in the middle" and requested to be assigned to his old housing unit or protective custody.
The hearing officer noted that Cardonick "offered no plea," called no witnesses, declined confrontation of the department's witnesses and admitted that he refused the order to report to his new housing assignment. The hearing officer further noted that Cardonick acknowledged that "he ha[d] been here 2 years without any problems [and] there [wa]s no reason to think there would be any at this time." The hearing officer upheld the disciplinary charge and imposed ten days detention, sixty days loss of commutation credit and ninety days administrative segregation. In imposing these sanctions, the hearing officer noted, "Inmates do not get to pick [and] choose their assignments. Anytime inmates want to get their way they find unreasonable justifications not to move."
Cardonick filed an administrative appeal, claiming there was a "[m]isinterpretation of the facts," and he also sought "leniency." In a written statement accompanying his notice of appeal, Cardonick argued that although he asked the hearing officer to review N.J.A.C. 10A:5-5.1, dealing with "Admission to Protective Custody," his request was not considered. Cardonick noted that he was never supplied with Form 146-I to formally request assignment to protective custody.
The Assistant Superintendent upheld the decision of the hearing officer, concluding that there was compliance with "procedural due process safeguards," and that the decision "was based on substantial evidence." He approved the loss of commutation credit and otherwise did not disturb the sanctions imposed. This appeal followed.
Before us, Cardonick argues that the investigative reports never mentioned the reasons for his request to be moved to protective custody, and the hearing officer, although supplied with a copy of N.J.A.C. 10A:5-5.1, never addressed the regulation in her findings and conclusions. He also contends in his initial brief and in his reply brief that DOC failed to "express" its rationale for refusing his request for protective custody, and that his legitimate request to be placed in protective custody undermines the basis for the disciplinary charge.
N.J.A.C. 10A:5-5.1(a)(5) provides in pertinent part that "[a]n inmate may be placed in Protective Custody . . .
[v]oluntarily, . . . via the inmate's request." The regulation further provides:
If an inmate voluntarily requests placement in Protective Custody, he or she shall complete, sign and submit to the appropriate Custody Supervisor Form 146-I Voluntary--Protective Custody Consent. The reasons for requesting Protective Custody must be indicated on the form. If the inmate's reasons cannot be verified, are deemed to be frivolous by the Administrator or designee or if the conditions forming the basis for the voluntary placement have abated or no longer exist, ...