On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Koblitz.
Appellant Michael Brown, a New Jersey State Prison inmate, is serving a life sentence with a mandatory minimum of thirty years for murder 2C:11-3a(1) and (2). He is also serving two consecutive sentences, one for fifteen years with a parole ineligibility period of eighty-five percent under the No Early Release Act, N.J.S.A. 2C:43-7.2, for kidnapping, N.J.S.A. 2C:13-1b and 2C:2-6, and another for five years with a parole ineligibility period of one-third for hindering apprehension, N.J.S.A. 2C:29-3b(1). Brown appeals the August 19, 2009 decision of the Department of Corrections (Department) imposing discipline for two charges of assault against two Passaic County corrections officers. N.J.A.C. 10A:4-4.1(a); *.002.*fn1 On each charge Williams was sanctioned consecutively to fifteen days of detention, 365 days of administrative segregation and a 365-day loss of commutation time. His matter was referred to the Special Investigations Division to determine whether the charges should be referred to the Prosecutor.
On appeal, Brown argues that the hearing officer rendered an arbitrary and capricious finding of guilt not supported by substantial evidence and failed to accord due process. After reviewing the record in light of the contentions advanced on appeal, we reverse to allow Brown to present the statement of an inmate eyewitness and direct the Department to reconsider its decision not to administer the requested polygraph test to Brown.
On July 9, 2009, when Brown was temporarily lodged in the Passaic County Jail, five corrections officers entered Dorm 1-1 to conduct roll call. All inmates were instructed to exit the dorm and line up. When Brown delayed exiting, an altercation began between the officers and Brown. The Department's "description of alleged infraction" delivered to Brown reads in its entirety, "assault by pushing Cpl. Teller with both hands while striking Sgt. Meehan." Brown was sprayed in the face with O.C. (Oleoresin Capsicum) by the officers and then restrained. He was taken to the medical unit where he was observed to have closed eyes due to the spray as well as multiple facial bruises, a broken tooth,*fn2 redness and facial swelling and scalp redness. He also had redness and bruises on his neck and back and a lower lip laceration. He reported a "pounding headache" and was sent to the emergency room at St. Joseph's Hospital to rule out any additional head and facial injuries. Sergeant D. Meehan was evaluated by the jail medical personnel due to redness and soreness of his chest and a scratch on his right arm. No other officer was hurt.
On July 10, 2009, Brown was brought before a Passaic County Superior Court judge for a post-conviction relief application. The judge ordered that Brown be kept in protective custody.*fn3
Brown maintains that he was denied the ability to properly present his
defense to the hearing officer in part because he was placed in
solitary confinement. He was represented by an inmate paralegal
counsel substitute. Brown claims he was denied the right to obtain a
statement from inmate Luis Tamayo, who was an eyewitness to the
altercation, and was denied access to photographs showing his
injuries. He received only photocopies of photographs, which were not
helpful.*fn4 On July 23, 2009, Brown requested in
writing hospital medical reports, all investigative reports, including
interviews and photographs from all internal and external*fn5
investigations, and a copy of the court order placing him in
Brown sought a polygraph test, which was denied by the Passaic County Sheriff's Department (Sheriff) because the "detailed reports from all staff involved in this incident [furnished] more than enough information . . . to make an informed decision during the adjudication of these disciplinary charges." The Sheriff's denial also noted, "the incident in question occurred within an inmate living unit, where there is no camera; therefore, there are no video recordings of the actual incident." The New Jersey State Prison Administrator also denied Brown a polygraph examination on July 24, 2009, because there were "no issues of credibility[,] . . . no findings of new evidence," and for the reasons stated in the Sheriff's denial of July 16, 2009.
The hearing officer found that Brown replied with vulgarity when ordered to get dressed for roll call, and then,
[a]t that time the inmate charged toward Sgt. Meehan and punched him in the chest. Brown then pushed C[pl.] Teller and continued to swing and throw punches at the two officers. The staff reported that they struck the inmate while attempting to restrain him.
The hearing officer indicated that Brown "argued that the officer had assaulted him, however, could not present any evidence to support that claim." The hearing officer noted that Brown made no statement and declined to confront adverse witnesses. The hearing officer found that "[b]ased on the evidence presented there [was] substantial evidence to support the charge[s]." The Department upheld ...