February 22, 2012
QUDDOOS FARRA'D, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011
Before Judges Graves and Koblitz.
Appellant Quddoos Farra'd, an inmate at the New Jersey State Prison, is serving a thirty-five year prison term with a seventeen year, six-month period of parole ineligibility. He appeals the September 17, 2010 decision of the Department of Corrections (Department) imposing discipline for his refusal to accept a housing unit assignment while incarcerated at South Woods State Prison (SWSP). N.J.A.C. 10A:4-4.1(a).254. Farra'd was sanctioned to fifteen days detention, ninety days administrative segregation and sixty days loss of commutation time. On appeal, Farra'd argues that the hearing officer rendered an arbitrary and capricious finding of guilt unsupported by substantial evidence and that the Department failed to provide appropriate due process, in particular, by allowing two different hearing officers to conduct the disciplinary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The relevant facts which gave rise to the allegation against Farra'd are largely uncontested. On September 8, 2010, Farra'd was received at the SWSP intake section and was informed of his housing assignment in the prison's general population. Farra'd claims that he told Sgt. J. Bondi he wanted to be placed in protective custody due to difficulties he experienced with the institution's staff the previous time he was housed there and due to his ongoing litigation against the institution. He indicates that Sgt. Bondi told him that protective custody is not used to protect inmates from staff, but that the request would have to be decided by the prison authorities. Farra'd claims that other inmates who arrived with him overheard this conversation. Senior Corrections Officer (SCO) P. Zadoroczny*fn1 and SCO Nichols were called by the Department at the hearing. They claimed that Farra'd gave no reason for refusing his housing assignment.
Farra'd was afforded a counsel substitute. His hearing took place before two hearing officers. The first hearing officer took a verbal statement from Farra'd. The second hearing officer heard the Department's evidence and made findings.
Farra'd raises the following issues on appeal:
HEARING OFFICER ERRED BY DENYING EYE WITNESS STATEMENTS OF PRISONERS & PORTERS THAT WAS PRESENT DURING THE ALLEGED VIOLATION.
HEARING OFFICER ERRED IN THE DENIAL OF CONFRONTATION WITH SGT. BON[D]I WHO INTERVIEWED DEFENDANT AT TIME OF ALLEGED VIOLATION DENYING EXCU[L]PATORY EVIDENCE AND DUE PROCESS.
DEFENDANT WAS DENIED A FAIR AND IMPARTIAL HEARING DUE TO CHANGE IN HEARING OFFICERS AND NOT STARTING ANEW.
HEARING OFFICER ERRED BY REMOVAL OF CERTAIN QUESTIONS AND FAILED TO LET OFFICER ANSWER QUESTIONS BY AIDING THE WITNESSES.
DENIAL OF POLYGRAPH TEST DENIED DEFENDANT OPPORTUNITY TO PROVE THER[E] WAS NO VIOLATION OF RULES AND REGULATIONS.
ADJUDICATION FINDING WERE AGAINST THE WEIGHT OF THE EVIDENCE AND THE ADJUDICATION WAS ARBITRARY AND CAPRICIOUS.
The Department has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights available to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of counsel substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995).
The procedure used here mirrors that which we reviewed in a different context in Ratti v. Dept. of Corr., 391 N.J. Super. 45 (2007). In Ratti, the defendant was charged with a prison disciplinary infraction, threatening another with bodily harm. Id. at 46. The charge arose from a confrontation between the defendant and a corrections officer. Ibid. The disciplinary hearing was held on two separate dates with each session presided over by a different hearing officer. Ibid. During the first day of the hearing, the defendant testified. Id. at 46-47. On the second day of the hearing, the corrections officer testified. Id. at 47. We reversed the disciplinary adjudication, finding that when credibility determinations are to be made, "a single fact finder [must] receive all the evidence and make determinations based on all of the proofs." Ibid.
Unlike in Ratti, and contrary to Farra'd's assertion, credibility was not germane to the disposition of the hearing at issue. Farra'd was charged with refusing a housing assignment, prohibited act .254. He couches his argument as a request for protective custody, rather than a refusal of his assigned housing. Notably, however, Farra'd doesn't argue that he was amenable to accepting his assigned housing while waiting for his protective custody request to be processed.
While an inmate may request to be voluntarily placed in protective custody, such a request does not result in immediate placement. The inmate must put the reasons in writing on the appropriate form. The reasons are then investigated by the Department prior to any decision regarding placement. N.J.A.C. 10A:5-5.1(b). A request for protective custody is not a defense for refusing placement in general custody.
Farra'd further complains that he was not afforded the opportunity to confront Sgt. Bondi. The hearing officers' adjudication form indicates that Farra'd rescinded his request to confront Sgt. Bondi. Even if Sgt. Bondi confirmed that Farra'd had requested protective custody, as discussed above, that request does not constitute a defense to this charge.
As to his allegation of error stemming from the hearing officer's omission of certain confrontation questions submitted by Farra'd, that decision was within the hearing officer's discretion under N.J.A.C. 10A:4-9.14(d).
Farra'd also argues that he should have been afforded the opportunity to take a polygraph examination. Pursuant to N.J.A.C. 10A:3-7.1(a), the prison administrator may authorize a polygraph examination to be performed by the Department's Special Investigations Division when
(1) there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or
(2) [a]s part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.
N.J.A.C. 10A:3-7.1(c) provides that "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." This provision "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). The prison administrator did not abuse his discretion in denying Farra'd's request for a polygraph test given that credibility was not an issue.
Finally, Farra'd argues that the finding of the hearing officer was arbitrary and capricious. Our review of decisions in prison disciplinary proceedings is circumscribed by principles that require us to defer to determinations that are supported by sufficient credible evidence and are neither arbitrary nor capricious. Id. at 23 (App. Div. 2005); Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). N.J.A.C. 10A:4-9.15(a) provides that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." Farra'd refused to be housed in SWSP's general population. By arguing that he requested protective custody, Farra'd merely furnishes a reason why he refused such housing. The finding of guilt was therefore not arbitrary or capricious.
To the extent that we have not specifically addressed any of Farra'd's arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).