July 26, 2012
KEVIN JACKSON, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012
Before Judges Payne and Messano.
Kevin Jackson appeals from the November 17, 2008 and August 18, 2011 decisions of the Department of Corrections (DOC) to impose disciplinary sanctions on him for committing prohibited act *.009, the misuse, possession, distribution, sale or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention, in violation of N.J.A.C. 10A:4-4.1(a). On appeal, he raises the following arguments:
RESPONDENT'S AGREEMENT THAT A GROSS VIOLATION WAS IN PLACE AND A RE-HEARING IS IN ORDER MUST BE DENIED BECAUSE THE MERITORIOUS LEGAL CLAIMS ARTICULATED HEREIN WARRANTS FOR THE PUBLIC INTEREST TO CONTINUE TO HOLD CONFIDENCE IN THE JURISPRUDENCE SYSTEM TO ADDRESS THE DOC ONGOING ILLEGAL POLICY, REGULATION AND PROCEDURE AT WILL THAT'S CONTRARY TO WELL ESTABLISHED ADMINISTRATIVE LAW PURSUANT TO N.J.A.C. 10A: ET SEQ., AS WELL IN ACCORDANCE WITH DUE PROCESS/EQUAL PROTECTION RIGHTS.
RESPONDENT CREATED THIS SITUATION THAT TRIGGERED THE LITIGATION AT HAND AND THEREFORE, PURSUANT TO N.J.A.C. 10A:3-9.13, RESPONDENT MUST BE RESPONSIBLE FOR ALL THE FINANCIAL COST ENTAILED IN THIS LITIGATION AT BAR.
SOP 315 DOES NOT ARTICULATE DOC OFFICE EQUIPMENT DISTINCT FROM NAACP NON-PROFIT ORGANIZATION PURCHASE EQUIPMENT WITH THEIR OWN FUNDS. THUS, SAID *.009 ADMIN. CHARGE AND SANCTION IS ILLEGAL, UNCONSTITUTIONAL CONTRARY TO APPELLANT'S DUE PROCESS/EQUAL PROTECTION RIGHTS OF THE 14TH AMEND. SEE ALSO, N.J.A.C. 10A:4-9.15(a).
CUSTODY/ADMISTRATION FAIL TO PROVIDE APPELLANT NOTICE PURSUANT TO SOP 315 OF AN ALLEGED PROHIBITED USE OF EQUIPMENT USAGE WITHOUT AN ALLEGED OFFICER'S PERMISSION TO USE THE/OR ANY NON-PROFIT GROUP IN PRISON, OWN PURCHASE ELECTRONIC EQUIPMENT. SEE ALSO N.J.A.C. 10A:4-3.1(a)(2).
We reverse the DOC's finding and vacate disciplinary sanctions imposed upon Jackson.
The record indicates that, on October 31, 2008, Senior Corrections Officer (SCO) G. Ramos issued a disciplinary report regarding Jackson that stated:
On the above date and approximate time this writer observed I/M Jackson, K. #207013 using the computer*fn1 in the balcony clerks office. I/M Jackson, K. # 207013 was not authorized to use the computer by this writer.
An additional report was issued by Sergeant C. L. Spires, which stated:
As noted, on the above date & approx. time Officer G. Ramos who was assigned to the balcony observed the above name[d] inmate who locks on 4R had a balcony pass along with three other inmates for a NAACP committee meeting. The aforementioned officer observed I/M Jackson using the balcony clerk's computer which is of a different location in which the meeting was held without the officer's permission. I then notified the west Lt. of same and requested two (2) GA's to report to the balcony where the inmate was placed in handcuff[s] and escorted under my supervision along with Officers L. Randall & P. Limburg to 1L where the inmate was strip searched then secured in cell. #90 PHD [pre-hearing detention] status issued charge 402 & 009 without incident.
In addition to the *.009 charge previously noted, Jackson was charged with .402, being in an unauthorized area. See N.J.A.C. 10A:4-4.1(a) (prohibited acts).
The matter was investigated and referred to Courtline for a hearing, at which time Jackson requested the assistance of a counsel substitute and confrontation with SCO Ramos and Sgt. Spires. Written questions were served upon the two officers, with the following questions and answers of relevance to this appeal, commencing with those of SCO Ramos.
4. Mr. Jackson had a badge on for the balcony as a pass. Why did you give him an out of place charge?
A: He was not supposed to be behind the desk.
6. Officer Ramos is . . . a computer or word processor for inmate retention on the balcony?
A: As policy states I have to authorize that use.
9. Should an inmate be given notification prior to any sanctions that an act is prohibited by the Institution or administration?
A: (not fair to ask him - disallowed)
13. Did you observe any of the information I/M Jackson had typed on the word processor? And was any information illegal?
Sgt. Spires responded in the following manner:
1. Sgt. Spires, I/M Jackson was charged with a *.009. As a result, for the record, can you give any substantial evidence in which you relied upon for charging I/M Jackson?
A: (#315) SOP [Standard Operating Procedure] specifies that either Sgt. Spires or SCO Ramos can not give permission for Jackson to use the word processor.
6. Should all inmates be notified in writing that an act is prohibited for purpose of due process?
A: (unfair question - policy)
In supplemental questions, Sgt. Spires was asked if there was any memorandum that stated that inmates were not permitted to use electronic equipment pursuant to standard operating procedure. In response, the Sergeant said: "Not that I am aware of. I refer to the SOP for that area."
Following the hearing, the .403 charge was dismissed on evidence that Jackson had been issued a pass that permitted him to be in the area where he was located. However, the *.009 charge was sustained on the basis of "C-1 NJSP SOP #315 (5 pp) [Balcony Post Orders]." The adjudication form relevant to the proceeding indicated that the SOP was considered confidential and was withheld from Jackson because "Post Orders are considered sensitive security information." Sanctions were imposed of fifteen days of detention, 365 days of administrative segregation, 180 days of loss of commutation credit, and permanent loss of contact visits.
Jackson appealed, raising among other things, due process concerns.*fn2 Recognizing their merit, on June 7, 2011, the DOC moved for a remand "to clarify the record as to whether there was any non-confidential information that would have provided Jackson with notice that inmates needed permission to use the word processor." On remand, Sgt. Spires issued a memorandum, dated July 29, 2011, in which he stated that "[p]rior to inmate Jackson PHD [pre-hearing detention] placement he was told by this writer only Balcony Clerk inmate(s) (No Exceptions) authorized to utilize the processing equipment, because of past usage for unauthorized purposes which then, resulted in termination of the balcony for an extended period." Sgt. Spires stated additionally that "[a]ll inmates entering the balcony on appropriate passes were advised prior to date of incident ONLY BALCONY CLERKS inmates authorized use of the word processing equipment which will be control[led] by the Area Supervisor or Balcony Officer." However, Sgt. Spires stated that Jackson "had been scheduled for the Balcony on inappropriate passes commencing on 10-28 to 10-31 of 2008[.]"
Additionally, in response to written questions, Sgt. Spires confirmed that Post Orders are not posted in prisoner's units or in a general area or posted in some other format as notice to inmates of prohibited conduct. In response to a question whether Jackson was misusing the word processor, Sgt. Spires stated that he was helping a civilian with some personal business that he believed to be a divorce. In response to a question asking how Jackson would have known that permission was needed to use the word processor, Sgt. Spires responded:
They were told previously that due to abuse and personal use that they needed the CO's permission. Their abuse had previously resulted in the termination of the balcony.
When asked if he had "specifically address[ed] this personally with I/M Jackson," Sgt. Spires responded "Yes, I did."
On August 19, 2011, the remand hearing was completed, and the Hearing Officer again found Jackson guilty of *.009. As the reason for sanctions, he wrote: "C-1 [the SOP] became moot in lieu of Sgt. Spires A-8 supplemental report and Q&A testimony." Disciplinary sanctions were reimposed.
On further appeal, we reverse, finding Sgt. Spires' statement that he personally informed Jackson that his use of a balcony word processor was prohibited not to be credible. In reaching this conclusion, we recognize, as we discussed in Cavalieri v. Board of Trustees of the Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004), that we are not "at liberty to simply substitute [our] judgment" for that of the hearing officer. Id. at 534. Rather, we must explain why that decision was not supported by sufficient credible evidence. Ibid.
We do so by noting the fact that Sgt. Spires was identified as a witness in 2008 at the time of the initial adjudication. Neither his report of the incident, nor that of SCO Ramos, provided any evidence that they had given notice to Jackson that his conduct was administratively prohibited. In particular, we note the lack of any reference to prior notice in Sgt. Spires' response to the question asking what evidence he relied upon in charging Jackson. Both SCO Ramos and Sgt. Spires declined to answer written questions addressing the issue of whether notice was required - a question that could have been answered simply if notice had, in fact, been provided. Significantly, despite the fact that Jackson had raised the notice issue, Jackson's initial conviction was not premised upon a statement that he had violated any directive known to him, but merely on the fact that he had violated a confidential and unposted standard operating procedure.
It was only when the DOC recognized that the disciplinary adjudication could not be sustained on the basis of the evidence presented that Sgt. Spires, three years after the incident in question, gave his incriminating response. Further, that response directly contradicted his contemporaneous statement that he informed Jackson of the nature of his prohibited act only when being escorted to pre-hearing detention. The fact that corrections officers may have informed inmates with properly-issued balcony passes of the prohibition is of no relevance in this case, since Sgt. Spires established that Jackson's pass was not properly issued.
As a consequence, we find that disciplinary adjudication was not supported by competent evidence as required, N.J.A.C. 10A:4-9.15(a), and we direct that it be expunged from Jackson's record. We decline to address the remaining arguments set forth in Jackson's brief. R. 2:11-3(e)(2).