On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Koblitz.
Appellant Damon Brown, an inmate at the New Jersey State Prison (NJSP), is serving a fifty-five year, one month and fourteen day prison term with a seventeen-year period of parole ineligibility. He appeals the November 15, 2010 decision of the Department of Corrections (Department) imposing discipline for two infractions: (1) perpetrating a deception by claiming to send money to a civilian for moving expenses, while actually using the civilian as an intermediary to give money to other inmates, *.704; and (2) giving something of value to another inmate's friend to circumvent a Department rule or regulation, .754. N.J.A.C. 10A:4-4.1(a). Brown was sanctioned on both infractions to a combined fifteen days detention, 180 days administrative segregation and "restitution" of $325 to the Law Enforcement Fund. On appeal, Brown argues that the hearing officer rendered an arbitrary and capricious finding of guilt unsupported by substantial evidence. He further contends that the Department failed to provide appropriate due process, in particular, by not allowing Brown to inspect the investigatory report. Brown also appeals the imposition of the monetary penalty. After reviewing the record in light of the contentions advanced on appeal, we affirm in all respects other than the monetary penalty, which we vacate.
The relevant facts are largely uncontested. A NJSP Special Investigations Division (SID) inquiry revealed that Brown received $32,417.81 in a civil settlement on August 12, 2010. The same day Brown submitted a $3225 remit to the NJSP business office. Brown sought a check to be drafted in that amount against his inmate trust account payable to Larry Faison, located in Suitland, Maryland. The remit form indicated that the money was "for moving." The check was processed. On August 20, 2010, Faison purchased two $1000 money orders and one $900 money order and mailed them to three NJSP inmates. On August 30, 2010, the money orders were processed into those inmates' trust accounts. Brown and the other three inmates were interviewed. Brown and two others were uncooperative. The fourth inmate indicated he knew Faison.
Brown's hearing was adjourned several times for administrative reasons. He was granted the assistance of a counsel substitute and declined to call or cross-examine witnesses.
Brown raises the following issues on appeal:*fn1
POINT 1: THE DECISION OF THE AGENCYS' HEARING OFFICER VIOLATED APPELLANTS' RIGHT TO DUE PROCESS AND IN THE INTEREST OF JUSTICE SHOULD BE VACATED OR AT BEST REVERSED AS A MATTER OF PROCEDURAL FUNDAMENTAL FAIRNESS DUE TO THE AGENCYS' FAILURE TO COMPLY WITH AND ADHERE TO THE NECESSARY PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. (NEW JERSEY ADMINISTRATIVE CODE).
SUBPOINT I: THE DECISION OF THE DISCIPLINARY HEARING OFFICER SHOULD BE REVERSED BECAUSE IT WAS NOT BASED UPON "SUBSTANTIAL CREDIBLE EVIDENCE" IN THE RECORD AS THE SUBSTANTIAL CREDIBLE EVIDENCE DOCTRINE MANDATES.
SUBPOINT II: THE PROCEDURES EMPLOYED BY THE HEARING OFFICERS' FAILURE TO ADHERE TO AND COMPLY WITH N.J.A.C. 10A:4-9.15(B)(1)(I) IN HIS FAILURE TO "EXPLAIN IN SPECIFITY ON THE ADJUDICATION OF THE DISCIPLINARY REPORT FORM THE EVIDENCE THAT WAS RELIED UPON IN MAKING HIS DETERMINATION AND WHY HE FOUND THE EVIDENCE CREDIBLE OR RELIABLE TO SUPPORT THE CHARGES" VIOLATED PROCEDURAL DUE PROCESS AND SHOULD BE REVERSED IN THE INTEREST OF JUSTICE.
SUBPOINT III: THE DISCIPLINARY HEARING OFFICERS' DENIAL OF APPELLANTS' REVIEW OF THE ALLEGED CONFIDENTIAL INFORMATION REPORTS WAS ERRONEOUS DUE TO THE FACT THERE CLEARLY WAS NO VALID PROTECTIVE SECURITY INTEREST IN WITHHOLDING THE DOCUMENTS AND THE DENIAL AMOUNTED TO ARBITRARY, CAPRICIOUS, UNREASONABLE ACTIONS AND THUS VIOLATED APPELLANTS' DUE PROCESS RIGHTS AND THE SANCTION SHOULD BE REVERSED IN THE INTEREST OF JUSTICE AND AS WELL AS A MATTER OF PROCEDURAL FUNDAMENTAL FAIRNESS.
SUBPOINT IV: THE AGENCYS' ACTIONS AMOUNTED TO ARBITRARY, CAPRICIOUS, UNREASONABLE WHEN THE AGENCY FROZE FUNDS IN APPELLANTS' PRISON TRUST ACCOUNT VIA AN ADMINISTRATIVE 'HOLD' WHEN THERE CLEARLY WAS NO VALID PROTECTIVE SECURITY INTEREST INVOLVED AND THE DEPRIVATION OF THESE FUNDS WITHOUT AFFORDING SOME FORM OF DUE PROCESS, I.E. A PREDEPRIVATION PROCESS IN ORDER TO PREVENT THE ARBITRARY AND DISCRIMINATORY DEPRIVATION OF A PROPERTY INTEREST VIOLATED APPELLANTS' DUE PROCESS RIGHTS.
SUBPOINT V: THE AGENCYS' DISCIPLINARY SANCTION IMPOSED BY THE HEARING OFFICER OF FUNDS AS RESTITUTION AND THE DEDUCTION OF SUCH FUNDS FROM APPELLANTS' PRISON TRUST ACCOUNT TO D.O.C.'s LAW ENFORCEMENT FUND AS CONTRABAND WAS ERRONEOUS AND ILLEGAL WHICH AMOUNTED TO ARBITRARY, CAPRICIOUS, UNREASONABLE ACTIONS DUE TO IT'S FAILURE TO ADHERE TO AND COMPLY WITH THE PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. 10A WHICH VIOLATES APPELLANTS' DUE PROCESS RIGHTS TO PROCEDURAL FUNDAMENTAL FAIRNESS AND FOR ...