On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2012
Before Judges Graves and Koblitz.
Milton Durham, a state prison inmate, is serving a forty- year term with twenty years of parole ineligibility for committing five first-degree aggravated sexual assaults. He appeals from a final decision of the Department of Corrections (DOC) finding him guilty of prohibited act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1. We affirm.
The charge against Durham was based on an incident that occurred at the New Jersey State Prison on November 19, 2009. At approximately 10:30 a.m., Senior Corrections Officer (SCO) Schlusselfeld and SCO Schwartzer escorted Durham to a prison medical clinic for a routine examination by a nurse. According to the nurse who examined Durham and both corrections officers, while Durham was at the clinic he exposed his penis to the nurse.
Following a disciplinary hearing on November 23, 2009, which Durham did not attend, the hearing officer found him guilty of indecent exposure. Durham was sanctioned with fifteen days of detention with credit for time served, ninety days in administrative segregation, sixty days' loss of commutation time, and fifteen days' loss of recreation privileges. The hearing officer noted that Durham had "10 prior similar infractions."
On November 24, 2009, Durham filed an administrative appeal in which he claimed that he did not refuse to attend his hearing. Assistant Superintendent Drumm upheld the guilty finding and the imposition of sanctions on December 7, 2009.
However, he did not specifically address Durham's claim that he was not allowed to attend his hearing.
Durham filed a notice of appeal with this court on February 4, 2010. In his merits brief, Durham stated that he was never given an opportunity to appear at his disciplinary hearing, he never signed a waiver of his right to participate in the hearing, and he never refused to attend the hearing. The DOC subsequently moved for a remand to provide Durham with a rehearing. We granted the motion on February 25, 2011. The remand hearing took place on March 11, 2011. Durham attended the hearing and was found guilty. The hearing officer summarized his findings as follows:
Durham denies guilt at [rehearing] on 3/11/11 to indecent exposure. Per staff report from [the nurse], Durham exposed his penis during a routine medical exam. Penis was exposed and erect. Durham states "she doesn't have any of the dates of me being treated for a rash." [Hearing] was postponed to obtain medical exam of 11-19-09. Medical report was [received] before [hearing] officer left, therefore [hearing] continued same day. Medical report (A6) clearly indicates Durham was being seen for re-eval[uation of] chest pain. Although Page 4 of 7 of A6 indicates [subject] had received medication for "scrotal rash" this does not explain his behavior as [described] in detail on Page 3 of A6. Incident was witnessed by SCO Schlusselfeld (A3) and SCO Schwartzer (A4). Both indicating Durham exposed his penis to [the nurse]. Durham was not in medical to address a scrotal rash but for re-eval[uation] for chest pain. It wasn't until after nurse observed exposed penis and was ordered to leave did Durham say "do you want to see my rash?" Staff reports are clear and relied upon to support charge. Medical report A6 - 7 pages also used.
The second hearing officer reimposed the same sanctions that were originally imposed on November 23, 2009. In an administrative appeal requesting leniency, Durham stated: "I only exposed my private part/area to [the nurse] because of my rash." In a decision dated March 30, 2011, Assistant Superintendent Anderson noted that Durham was "taken to Medical after [he] complained of chest pains," and Anderson upheld the hearing officer's decision.
On appeal to this court, Durham presents the ...