March 26, 2012
CHRISTOPHER J. RYOUL, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 March 13, 2012 -
Before Judges Baxter and Maven.
Appellant Christopher J. Ryoul appeals from a February 2, 2011 final agency decision of the Department of Corrections (the Department) finding him guilty of prohibited acts *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, and .452, using any equipment or machinery which is not specifically authorized, in violation of N.J.A.C. 10A:4-4.1(a). The hearing officer imposed the following sanctions: 15 days detention, with credit for time served (CTS), 180 days loss of commutation time and 180 days administrative segregation for the *.005 charge. For the .452 charge, appellant received ten days detention, with CTS.
On the administrative appeal, the associate administrator affirmed the hearing officer's decision. Appellant filed this appeal along with a motion for a stay of sanctions. The respondent filed a cross-motion for summary disposition. The motion for summary disposition was denied, and the motion for a stay of sanctions was granted.
We have carefully reviewed the record and conclude that appellant's arguments are without merit. We affirm.
These are the facts adduced from the record. Appellant, an inmate of Southern State Correctional Facility, was in the prison's law library on January 26, 2011, with permission to use a typewriter to type a letter. After appellant exchanged the typewriter ribbon in the law library as is required, Senior Corrections Officer (SCO) Thompson reviewed the ribbon and discovered the typewriter was used to write a threatening note to Inmate Schmitt to be delivered by another inmate referred to as "Turbo." In the initial incident report SCO Thompson reported:
On 1-26-11 at approx 2:20 p.m. I/M Ryoul 609034 gave me a type writer ribbon in the law library which contained typing on from him that stated that someone in 3 name Roy owed him 2 paks. I/M Ryoul stated he was going to get his boy turbo to get it from forcefully and pay 3 paks, "one for him for collecting."*fn1
According to the investigator's report submitted by Sgt. J. Fowler, the Southern State Correctional Facility Handbook, received by all inmates entering the facility, states: "typewriters will be used for legal work only. No other usage will be tolerated." The rules concerning the use of the typewriters are also posted next to every typewriter.
On January 26, 2011, appellant wrote a statement in which he admitted to typing the note but denied making a threat.
Roy Schmidt owed me 2 packs of Buglers on unit 3 from when we were on unit 2 together a month ago. I'm now on unit 5 so I typed a letter to have someone tell him to bring me my packs because I needed them. Roy came to the library today to give me the cigs. I never see Roy so that is why I had the message sent to him. Roy's my friend I lent him the cigarettes as a favor - he was here today to give them back to me. There [were] no threats involved.
After being charged with the infractions on January 26, 2011, appellant pleaded guilty to .452 and not guilty to *.005.
Thereafter, Disciplinary Hearing Officer (HO) Christy Ralph, conducted appellant's hearing. Appellant and his counsel substitute appeared and had the opportunity to make a statement, call witnesses, confront or cross-examine adverse witnesses and present evidence on appellant's behalf. The HO considered a written statement made by Inmate Schmitt, but appellant provided no other evidence or witnesses. The disciplinary hearing was postponed prior to disposition because HO Ralph had not received appellant's Mental Health Disciplinary Report Form.*fn2 Upon receiving and considering the report, on February 2, 2011, HO Ralph found appellant guilty of all charges. Counsel substitute filed a timely appeal of the disciplinary decision, which was upheld by the associate administrator. This appeal followed.
On appeal, appellant raises the following points:
APPELLANT WAS DENIED DUE PROCESS OF THE LAW, WAS FOUND GUILTY OF DISCIPLINARY CHARGES WITHOUT OPPORTUNITY TO CALL WITNESSES, PRESENT DOCUMENTARY EVIDENCE, CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES IN DEFENSE OF ALLEGED CHARGES.
COURT LINE HEARING OFFICER DID NOT HEAR APPELLANT'S CHARGES ON FEBRUARY 2, 2011.
DISCIPLINARY HEARING OFFICER INTENTIONALLY ALTERED/FALSIFIED DOCUMENTS TO MAKE THE RECORD APPEAR AS IF APPELLANT HAD A HEARING.
The scope of our review of an agency decision is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [ ] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). When reviewing a determination of the Department in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).
Prison disciplinary hearings are not criminal prosecutions, and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). See also Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 252 (App. Div. 2010). However, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights, defined in Avant, include:
(1) written notice of the charges at least twenty-four hours prior to the hearing;
(2) an impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections;
(3) a limited right to call witnesses and present documentary evidence in defense of the charges;
(4) a limited right to confront and cross-examine adverse witnesses;
(5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and
(6) where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute. [Avant, supra, 67 N.J. at 525-33.]
The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. See McDonald, supra, 139 N.J. at 192. See also Jacobs v. Stephens, 139 N.J. 212, 215 (1995). The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.
Here, the requirements of Avant were met. Appellant received timely notice of the charges and a prompt initial hearing. N.J.A.C. 10A:4-9.8(c). The HO, who was a member of the Department's Central Office, held the hearing on January 31, 2011, but delayed the decision for a short and reasonable time to allow consideration of the required mental health disciplinary report. The hearing was conducted before an impartial tribunal in the presence of a counsel substitute and appellant was given the opportunity to proffer both an oral and written statement. Except for the statement by Inmate Schmitt and his statement admitting to one of the charges, appellant chose not to provide any additional information. Although he had a similar opportunity to present witnesses, appellant chose not to do so, despite identifying Inmate Schmitt as a potential witness. Appellant was offered the opportunity to confront the witnesses and also declined to do so. Finally, counsel substitute acknowledged, as part of the record, the HO's rendition of what took place at the hearing by signing line sixteen of the Adjudication of Disciplinary Charge form.
The record before us provides sufficient credible evidence to support the findings of the HO as affirmed by the associate administrator. The evidence presented to the HO supported the finding that appellant committed the offenses for which he was charged and nothing in the record contradicts that critical finding.
As to Points II and III, these arguments also have no merit. The evidence reflects that the substance of the hearing took place on January 31, 2011, while appellant was present and had an opportunity to participate. On February 2, 2011, the HO considered the mental health report and rendered her decision. N.J.A.C. 10A:4-9.10 provides that an inmate shall be permitted to be present throughout the disciplinary hearing except during the necessary deliberation of the Disciplinary Hearing Officer. Therefore, appellant was not entitled to attend any proceeding on February 2, 2011.
We affirm. The stay of sanctions is hereby vacated.