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Calvin Garnett v. Department of Corrections

August 22, 2011

CALVIN GARNETT, APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, RESPONDENT.



On appeal from the Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 16, 2011

Before Judges Waugh and Koblitz.

Appellant Calvin Garnett appeals the final administrative action of the Department of Corrections (DOC) imposing discipline based upon a finding that he failed to comply with a written rule or regulation of East Jersey State Prison, at which Garnett is incarcerated. We remand for a fuller explanation of the agency's decision.

I.

We discern the following facts and procedural history from the record on appeal. In October 2010, Garnett was charged with offense *.051, engaging in sexual acts with others. The charge was based upon allegations that Garnett and a female visitor rubbed each other's "crotch" or "genital" areas during a contact visit on October 9, 2010. Garnett pled not guilty, claiming that no such conduct had taken place.

Garnett's disciplinary hearing was adjourned on October 12 and October 15, because the video tapes from two surveillance cameras were not yet available for review by the hearing officer. On October 18, the hearing officer viewed the tapes. She amended the charge to offense .709, violating any rule or regulation. Garnett pled not guilty to that offense.

The hearing officer found Garnett guilty of the revised charge. Her factual findings and legal conclusions were as follows:

The video shows the 2 people involved holding hands & rubbing hand but they both were doing it in an inappropriate manner. The inmate agreed that it appears that more was going on than what was. Based on rules & reg the 2 people (The inmate & his visitor) were not following rules & reg respect[ing] . . . acceptable conduct in a public area. Charge upheld.

The hearing officer imposed a sanction of (1) fifteen days in detention, suspended for sixty days, (2) ninety days of administrative segregation, suspended for sixty days, (3) sixty days loss of commutation credit, (4) ten days loss of recreational privileges, and (5) thirty-five days loss of visitation privileges. Garnett's administrative appeal was unsuccessful.

This appeal followed.

II.

On appeal, Garnett argues that the hearing officer's decision was not supported by substantial evidence, as required by N.J.A.C. 10A:4-9.15. DOC counters that the decision was appropriately supported by the record, and that we should ...


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