April 20, 2012
DAMON BROWN, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 7, 2012
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 THIS REASON THE RESTITUTION SANCTION SHOULD BE REVERSED AND THE RESTITUTION FUNDS SHOULD BE REIMBURSED IN THE INTEREST OF JUSTICE.
SUBPOINT VI: THE CUMULATIVE EFFECT OF THE SEVERAL INSTANCES OF THE AGENCYS' FAILURE TO ADHERE TO AND COMPLY WITH THE PROMULGATED PROCEDURAL SAFEGUARDS OF N.J.A.C. (NEW JERSEY ADMINISTRATIVE CODE) 10A INDIVIDUALLY AND COLLECTIVELY AMOUNTED TO ARBITRARY, CAPRICIOUS, UNREASONABLE ACTIONS THUS VIOLATED APPELLANTS' RIGHT TO PROCEDURAL FUNDAMENTAL FAIRNESS AND AS A MATTER OF LAW AS WELL AS IN THE INTEREST OF JUSTICE THE DISCIPLINARY SANCTIONS SHOULD BE REVERSED.
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, "[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. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995).
Prohibited act .754 proscribes "giving money or anything of value to . . . another inmate's friend with an intent to circumvent any correctional facility or Departmental rule, regulation or policy or with an intent to further an illegal or improper purpose." N.J.A.C. 10A:4-4.1(a)(.754). On appeal, Brown claims he sent the money to Faison for moving expenses. However, the evidence in the record does not support this claim. As the Department points out, if Faison needed the money for moving expenses, he would not send an equivalent sum to three inmates. Brown gave no statement when interviewed during the investigation or at his hearing.
Brown further argues that the findings of the hearing officer were 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. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 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."
Only a few days separated Brown's remit to Larry Faison and Faison's sending the money orders to the NJSP inmates. That short time period, coupled with the similarity in the amount of money involved, provided sufficient credible evidence to support the Department's decision. The finding of guilt was therefore not arbitrary or capricious.
Brown also maintains that he should have been provided with a copy of the SID report relied on by the hearing officer. The hearing officer deemed that report confidential as a potential threat to prison security and appropriately provided a summary of the evidence against Brown. N.J.A.C. 10A:4-9.15(b). Having reviewed the confidential report, we find that it could fairly be viewed as bearing "upon the interests of the prison authorities in protecting confidential informants, not disclosing investigative techniques, [and] preserving the safety and security of the prison environment and persons therein . . . ." Wakefield v. Pinchak, 289 N.J. Super. 566, 572-73 (App. Div. 1996). Brown was given a copy of the remit form he completed and the three money orders payable by name to the inmates and sent by Faison, who put his own name and address on them. This documentary evidence put Brown on sufficient notice of the charges against him to allow him to prepare a defense.
See Williams v. Dep't of Corr., 330 N.J. Super. 197, 205 (App. Div. 2000).
Brown also contends that the $325 sanction was unauthorized. The Department argues that we should not consider this argument as it was not raised at the administrative appeal. However, the Department's decision reflects that "the sanction rendered is appropriate," which demonstrates that the sanction was reviewed at the administrative appeal. We find no authority for penalizing Brown $325. N.J.A.C. 10A:4-5.1. The hearing officer characterized this payment as restitution. Brown paid Faison $325 for cashing Brown's check and sending the money to the three inmates. Restitution is defined as "repairing the harm done the aggrieved party." State v. Harris, 70 N.J. 586, 592 (1976). Even if restitution was an authorized sanction, we are unable to fit this monetary penalty within the definition of restitution. The Department argues on appeal that this money is contraband subject to confiscation. N.J.A.C. 10A:3-6.6. The Department argues that "Brown should not be permitted to keep this money for himself." We have been given no information indicating that Faison did not keep the $325 sent to him by Brown. Thus, the $325 penalty is neither restitution nor contraband, and is not authorized as a sanction.
Brown further complains that the Department froze $3000 in his inmate trust account on January 7, 2011. Such action was not a sanction imposed in this disciplinary matter and is therefore not the proper subject of this appeal.
To the extent that we have not specifically addressed any of Brown's other arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We remand for an elimination of the $325 sanction and otherwise affirm.
Affirmed in part, vacated in part.