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Calvin andrews v. New Jersey Department of Corrections

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 20, 2012

CALVIN ANDREWS APPELLANT,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.

On appeal from the New Jersey Department of Corrections.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 5, 2012 --

Before Judges Yannotti and Espinosa.

Calvin Andrews (Andrews), an inmate at Northern State Prison, appeals from a final determination of the Department of Corrections (DOC), which found that he committed certain prohibited acts and imposed sanctions. We affirm.

On January 4, 2011, several corrections officers entered "Fox 100 East," and proceeded to cell 110, where Andrews and inmate Guttierrez were housed. They found a black shower shoe jammed in the door of the cell so that it would not open. Andrews and Guttierrez were in the cell. The inmates were told not to move but, according to Sergeant Owen, the inmates flushed their cell phones down the toilet. After the corrections officers secured Andrews, he was escorted to the clinic where he was evaluated by medical personnel who cleared him for pre-hearing detention.

Andrews was charged with committing prohibited acts *.154, tampering with a locking device; and *.009, misuse, possession, distribution, sale or intent to distribute or sell an electronic communication device, in violation of N.J.S.A. 10A:4-5.1(e). Andrews was placed in pre-hearing detention. Sergeant Henry J. Bussey (Bussey) served the charges upon Andrews. Bussey investigated the charges and referred the matter for a hearing.

The hearing officer found Andrews guilty of both charges. On the *.154 charge, the hearing officer imposed 365 days of administrative segregation, with time served, and the loss of 365 days of commutation time. On the *.009 charge, the hearing officer imposed 365 days of administrative segregation, and the loss of 365 days of commutation credit, consecutive to the sanctions imposed on the *.154 charge. The hearing officer also imposed a permanent loss of contact visits.

Andrews filed an administrative appeal from the hearing officer's decision. The associate administrator of the correctional facility upheld the hearing officer's decision. Andrews appeals and argues that: 1) the hearing officer violated his due process rights; 2) the hearing officer's findings were not based on substantial evidence; and 3) the assistant administrator violated his right to procedural due process by failing to investigate the claims raised in his appeal.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). When reviewing a determination of the DOC in a prisoner disciplinary proceeding, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the DOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

We are convinced that there is sufficient credible evidence in the record to support the DOC's determination that Andrews committed the prohibited acts with which he was charged. The record shows that the corrections officers approached the cell where Andrews and Guttierrez were housed and observed a shower shoe jammed in the door so that it could not be opened. Moreover, as indicated in Sergeant Owens's report, the inmates were observed flushing their cell phones down the toilet.

Andrews argues that the *.009 charge was not proven because the cell phone was not presented as evidence or described in any report. He further argues that the hearing officer's findings were not supported by substantial evidence because only Sergeant Owens's report mentions the possession of the cell phone.

Andrews additionally asserts that the nurse's report only mentions one cell phone and Guttierrez took responsibility for that phone. He also argues that there was no evidence that he flushed evidence down the toilet. Andrews additionally argues that *.154 charge was not proven because in his report, Sergeant Owens did not state that Andrews had blocked the door.

We are satisfied that these arguments are entirely without merit. Sergeant Owens's report provides sufficient proof to support the hearing officer's findings. The phones could not be presented as evidence because they were discarded. Moreover, the nurse's report does not mention any cell phones. Furthermore, the hearing officer reasonably rejected Guttierrez's assertion that the cell phone belonged to him, noting that the "prison subculture" required Guttierez to take responsibility for the phone in order "to maintain [his] personal security" in the prison environment.

In addition, Sergeant Owens stated that he observed Andrews and Guttierrez flush their cell phones down the toilet. While Sergeant Owens did not specifically state that Andrews was responsible for blocking the door with the shower shoe, his report concerning that infraction indicates that both inmates were in the cell when the door was jammed. Based on that report, the hearing officer reasonably determined that both inmates were responsible for blocking the door.

Andrews further argues that he was not afforded due process in the hearing. He contends that he was denied the opportunity to provide evidence in his defense, specifically a videotape of the incident. There is, however, no indication in the record that a videotape of the incident has been maintained. Andrews also contends that he was denied the opportunity to confront Sergeant Owens, but the hearing officer did not abuse her discretion by canceling the confrontation as a result of what she described as Andrews's antagonistic behavior and abusive language.

In addition, Andrews argues that the associate administrator violated his right to due process by failing to investigate the claims he made as part of his administrative appeal. We disagree. The hearing officer conducted a hearing in this case and issued reports with her factual findings. The administrator reviewed the hearing officer's reports and upheld the hearing officer's decisions. We are satisfied that, under the circumstances, the associate administrator was not required to conduct any further investigation of the matter.

Affirmed.

20120620

© 1992-2012 VersusLaw Inc.



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