On appeal from the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 5, 2011
Before Judges Fuentes, Graves and Koblitz.
Appellant Robert Bowman (Bowman) appeals from a September 13, 2010 final administrative decision of the Department of Corrections (DOC) affirming a disciplinary hearing officer's determination that Bowman violated N.J.A.C. 10A:4-4.1 *.005 by threatening another inmate with bodily harm. Bowman argues that the decision should be reversed because he was not served with the charge within forty-eight hours, as required by DOC regulations, and because there was insufficient evidence to support a finding of guilt. After considering these arguments in light of the record and the applicable law, we affirm.
According to a report filed by Senior Corrections Officer Brown, on September 5, 2010, at approximately 8:40 p.m., Bowman approached him and stated: "I need to get out of my cell with my bunkie [Mercedes] because voices in my head are telling me to kill him." As a result, Bowman was charged with the disciplinary infraction and placed in prehearing detention. Because he had a history of "prior suicide attempts or threats," Bowman was also placed on constant watch. Mercedes was offered protective custody, but he refused.
Sergeant Ennals investigated the charge and noted in a disciplinary report that Bowman requested the assistance of counsel substitute. Ennals referred the matter to courtline for a hearing and gave Bowman a copy of the report, with a description of the alleged infraction, on September 8, 2010, at 9:25 a.m. Bowman did not request that a statement be taken from any witness.
The initial hearing date was adjourned to September 10, 2010, so that Bowman could undergo a psychological evaluation. The evaluation was conducted by Amy Schullery, Psy.D., (Schullery) on September 9, 2010, to ascertain Bowman's "mental status, level of responsibility at the time of the charge, competency to participate in a courtline hearing, and likelihood of decompensation if place[d] in Detention/Ad[ministrative] Seg[regation]."
After interviewing Bowman, Schullery concluded that Bowman "suffer[ed] from a mental illness at the time of the alleged infraction," but that the "signs/symptoms of [Bowman]'s mental illness" did not "contribute to [Bowman]'s behavior manifesting itself in the alleged infraction." In addition, Schullery found that Bowman was "responsible for his actions at the time of the alleged infraction," and that at the time of the interview, Bowman was "mentally competent to defend himself and understand the proceeding at a courtline hearing." Schullery also stated that Bowman "should have the assistance of a paralegal."
On September 10, 2010, Bowman refused to appear at his disciplinary hearing, but he was represented by counsel substitute. The evidence considered by the hearing officer consisted of the correction officers' reports and the psychological evaluation. At the conclusion of the hearing, Bowman was found guilty of threatening Mercedes with bodily harm, and the hearing officer imposed the following sanctions: 30 days loss of recreational privileges and 180 days loss of commutation time.
In his administrative appeal, Bowman argued that the sanctions imposed were "wanton, disproportioned, in excess, and in violation of due process." Bowman also argued that the disciplinary charge should be dismissed because the incident occurred on September 5, 2010, and he was served with the disciplinary report on September 8, 2010.
Bowman's administrative appeal was denied by Amadu Jalloh, Associate Administrator for South Woods State Prison, on September 13, 2010, with the following explanation:
There was compliance with NJAC 10A on inmate discipline which provides procedural safeguards. The disciplinary charge was not served within 48 hours due to the constant watch placement. The CF v. Terhune policy [D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999)] clearly states that an inmate has to be in full mental capacity to understand his wrongdoing before the charge is served on him. This requirement was met by the courtline disciplinary supervisor. Therefore, there is no violation noted. [Bowman's] actions violate the safety and security of the ...