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Smith Fonrose v. New Jersey Department of Corrections


May 18, 2012


On appeal from the New Jersey Department of Corrections.

Per curiam.


Submitted February 27, 2012

Before Judges Grall and Alvarez.

In this prison disciplinary matter, Smith Fonrose, a state inmate, appeals from a final New Jersey Department of Correction (DOC) administrative decision issued April 27, 2011. Fonrose was adjudicated guilty of disciplinary infractions *.001, killing; *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility; and *.010, participating in an activity related to a security threat group. See N.J.A.C. 10A:4-4.1. We affirm.

On the *.001 adjudication, Hearing Officer Oszvart*fn1 imposed sanctions of fifteen days detention with credit for time served, 365 days administrative segregation, and 365 days loss of commutation credits. A sanction of fifteen days detention with credit for time served, 365 days administrative segregation, and 365 days loss of commutation time, consecutive to the sanctions for the *.001 charge, was imposed on the *.306 charge. On *.010, Fonrose was sentenced to credit for time served, 365 days administrative segregation, and 365 days loss of commutation time, consecutive to the *.001 and *.306 charges.

On April 7, 2011, Fonrose administratively appealed the initial decision made by Oszvart. On April 27, 2011, Associate Administrator Sherry Jones affirmed the adjudication and sanctions.

Fonrose was one of five inmates who, on August 23, 2010, kicked and punched to death another inmate, Carl Epps. The criminal investigation was referred to the Hunterdon County Prosecutor's Office as required by N.J.A.C. 10A:4-4.2. DOC's Special Investigations Division conducted an investigation into the homicide. On March 3, 2011, DOC Investigator Brian Bonomo reported that Fonrose and the other inmates were gang members.

Immediately following the incident, Fonrose was transferred to New Jersey State Prison where he claims he was placed in a "dry cell," which is one lacking running water or a toilet, for approximately three months. See N.J.A.C. 10A:3-5.8(e). Thereafter in November 2010, he alleges he was transferred to the Management Control Unit (MCU). See N.J.A.C. 10A:5-7.1(d)(5).

On March 4, 2011, DOC Sergeant Infante served the disciplinary charges on Fonrose, conducted an investigation, and referred the charges to a hearing officer. The hearing began on March 7, 2011, but was postponed because Fonrose was not available, having left the institution to attend court proceedings. The following day, the hearing was again postponed pending the receipt of additional material from the Hunterdon County Prosecutor's Office. On March 10, 2011, the hearing was postponed a third time so Oszvart could view the area in the Mountainview facility cottage where the incident took place. The hearings were subsequently continued on four different dates in March because additional information was provided to the DOC by the county prosecutor's office.

On March 28, 2011, DOC Senior Investigator Wayne Robbins issued a report concluding, after review of the transcripts of statements made by Fonrose and two others taken by the Hunterdon County Prosecutor's Office, that Fonrose and the other inmates conspired to assault Epps as part of a gang, or security threat group (STG).

On March 29, 2011, when the hearing was reconvened, Fonrose and his counsel substitute reviewed the evidence and requested an additional twenty-four hours in which to prepare, which request was granted. On March 31, 2011, counsel substitute submitted an exhibit and the hearing was postponed so that the hearing officer could review the information.

Thereafter, on April 4, 2011, the hearing on the *.001 and *.306 charges concluded. On April 7, 2011, the hearing on the *.010 charge concluded and Fonrose was adjudicated guilty of all charges.

Now on appeal, Fonrose contends the following:



Prior to addressing Fonrose's single point on appeal, we review the well-established standards regarding prisoner disciplinary proceedings. Prisoners are entitled to limited protections. Avant v. Clifford, 67 N.J. 496, 521 (1975). They are summarized as:

(1) Written notice of the charges at least twenty-four hours prior to the hearing,

(2) An impartial tribunal,

(3) 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,

(4) A limited right to call witnesses and present documentary evidence in defense to the charges,

(5) A limited right to confront and cross-examine adverse witnesses,

(6) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. [Id. at 525-30, 533.]

These procedural due process requirements balance the "security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmate[]." McDonald v. Pinchak, 139 N.J. 188, 202 (1995).

"[A]n appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

An adjudication of guilt of a disciplinary infraction must be supported by "substantial evidence . . . ." N.J.A.C. 10A:4-9.15(a). Substantial evidence has been defined as that which "a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956). We address these questions before reaching defendant's claimed errors.

As to the Avant requirements, written notice of the charges were supplied at least twenty-four hours prior to the hearing, and an impartial tribunal was constituted, consisting of a hearing officer. Fonrose was afforded counsel substitute. He was given the right to call witnesses, present documentary evidence, confront and cross-examine adverse witnesses, and in fact submitted one exhibit and a written statement for the hearing officer's review. Fonrose was provided with a written statement, signed by his counsel substitute, setting forth the reasons for the hearing officer's decision, including the reasons for imposition of sanctions.

Fonrose was found guilty of the disciplinary violations based on substantial credible evidence. The Hunterdon County Prosecutor's Office interviewed three other inmates, all of whom implicated Fonrose in the incident. Mountainview was "locked down" after the killing, thereby stopping all movements at the correctional facility for approximately twenty-four hours. Senior Investigator Robbins reported that after reviewing the transcript of the interviews of Fonrose, April, and Jackson, he determined that Fonrose and his fellow inmates conspired together to assault Epps as part of an STG related activity. Clearly, there was substantial credible evidence that Fonrose was guilty of all charges, and nothing about the decision was arbitrary or capricious. See Henry, supra, 81 N.J. at 580.

Fonrose's sole contention on appeal is that the seven-month delay in formally serving him, during which time he was confined to a dry cell and an MCU, violated his right to due process. It is undisputed that there was a delay. It is equally clear, however, that the matter involved a highly significant incident, requiring referral to the Hunterdon County Prosecutor's Office. N.J.A.C. 10A:4-4.2. The Prosecutor's Office's investigation took approximately six months to complete. It was not until March 3, 2011, that the DOC was informed of the final outcome of the investigation. The DOC charged Fonrose with the disciplinary offenses related to the murder the day after being advised that the Prosecutor's Office had obtained sufficient evidence to sustain the charges.

N.J.A.C. 10A:4-9.2 requires disciplinary reports to be served upon an inmate within forty-eight hours of the alleged violation, except where there are "exceptional circumstances." These were exceptional circumstances.

Indeed, N.J.A.C. 10A:4-9.9(a) clarifies that failure to adhere to time limits will "not mandate dismissal of a disciplinary charge[,]" where the reasons for the delay, the length of the delay, the prejudice to the inmate in preparing his defense, and the seriousness of the alleged infractions warrant it. And Fonrose has not specified any actual prejudice to his ability to defend the charges resulting from the delay. The delay was inherent in the serious nature of the crime, the fact it occurred in an institutional setting, and the gravity of the charges. Our examination of these factors leads us to the inescapable conclusion that the DOC's failure to adhere to the timeline in this case was warranted given the nature and circumstances of the underlying incident. The requirements of N.J.A.C. 10A:4-9.9(a) were satisfied.

Fonrose contends, in reliance upon Hewitt v. Helms, 459 U.S. 460, 470-71, 103 S. Ct. 864, 871, 74 L. Ed. 2d 675, 687-88 (1983), that he has a due process and protected liberty interest in continuing to reside in the general prison population because our State regulations entitle him to a less restrictive placement. Unfortunately for Fonrose, in Sandin v. Conner, 515 U.S. 472, 481, 115 S. Ct. 2293, 2299, 132 L. Ed. 2d 418, 428 (1995), the Court disavowed that very doctrine because Hewitt's shift in focus "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state conferred-privileges." The Court held that "[t]he time ha[d] come to return to those due process principles that were correctly established and applied in Wolff and Meachum." Id., 515 U.S. at 483, 115 S. Ct. at 2300, 132 L. Ed. 2d at 429. See Meachum v. Fano, 427 U.S. 215, 96 S. Ct. 2532, 49 L. Ed. 2d 451 (1976); Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). The question is therefore not whether Fonrose had a protected interest in remaining in the general prison population, but whether the prehearing segregation "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, supra, 515 U.S. at 484, 115 S. Ct. at 2300, 132 L. Ed. 2d at 430. Given the nature of the incidents leading up to the prehearing placement, and the nature of the prehearing detention, it does not seem to be an "atypical and significant hardship."

Fonrose's placements prior to his hearing do not violate the due process clause because he does not have a liberty interest in remaining free from administrative segregation. See Jenkins v. Fauver, 108 N.J. 239, 250 (1987). The segregation of a prisoner from the rest of the inmate population can be used for protection, to separate disruptive groups, or simply as a holding mechanism. It is the type of custody which an inmate "should reasonably anticipate receiving at some point in their incarceration." Ibid. (quoting Hewitt, supra, 459 U.S. at 468, 103 S. Ct. at 869, 74 L. Ed. 2d at 686). Furthermore, Fonrose was given credit against all his detention sanctions for time spent in prehearing detention.

The Avant procedural requirements were met. The administrative decision is supported by substantial credible evidence, is therefore not arbitrary, capricious, or unreasonable, and is entitled to significant deference. Fonrose's prehearing detention did not violate any due process interest.


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