August 9, 2012
LIONELL G. MILLER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 30, 2012
Before Judges Payne and Reisner.
Defendant, an inmate at New Jersey State Prison, appeals from the imposition of disciplinary sanctions, after a hearing at which he represented himself, for *.004, fighting; *.306, conduct that disrupts; and *.154, tampering with or blocking any locking device. As the result of the adjudications on these charges, defendant received for the *.154 charge 15 days of detention and 180 days of administrative segregation; for the *.004 and *.306 charges, he received 15 days of detention, 270 days of administrative segregation, 270 days' loss of commutation credits, and 30 days' loss of recreation privileges.
On appeal, defendant makes the following arguments:
APPELLANT WAS DEPRIVED OF HIS FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHT TO DUE PROCESS AS A RESULT OF THE DISCIPLINARY HEARING OFFICER'S REFUSAL TO ALLOW APPELLANT TO OFFER VIDEOTAPE EVIDENCE IN HIS DEFENSE.
THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE DISCIPLINARY HEARING OFFICER'S FINDING THAT APPELLANT TAMPERED WITH OR BLOCKED A LOCKING DEVICE THUS APPELLANT WAS DENIED DUE PROCESS.
APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS DUE TO THE DISCIPLINARY HEARING OFFICER'S REJECTION OF HIS SELF-DEFENSE CLAIM.
APPELLANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AS A RESULT OF THE DISCIPLINARY HEARING OFFICER'S REFUSAL TO ALLOW HIM TO ASK SPECIFIC QUESTIONS DURING CONFRONTATION AND CROSS-EXAMINATION.
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AS A RESULT OF THE DISCIPLINARY HEARING OFFICER'S REFUSAL TO ALLOW HIM TO PRESENT DOCUMENTARY EVIDENCE IN HIS DEFENSE.
In his appellate brief, Miller claims that, on March 17, 2011, he was taking a shower in the administrative segregation unit of the prison, while watching the tier through a mirror to see that nobody went into his cell to steal or destroy his possessions. He contends that he was released from the shower by Corrections Officer Fraley. As Miller walked down the tier past the cell of inmate Johnson, whose cell door was open, Johnson accused Miller of writing remedy forms about him being given access to Miller's cell and possessions. When Miller denied doing so, Johnson came out of his cell and assaulted Miller, whereupon Miller immediately defended himself. The fight continued for several minutes until broken up by corrections officers.
In contrast, the prison claims that, while Miller was showering, Johnson was on the tier performing the duties of a tier runner. Immediately prior to the incident, Miller forced the lock on the prison shower, which was broken, exited the shower, and attacked Johnson, fighting with him until the fight was broken up by corrections officers.
After a review of the evidence, the hearing officer ruled against Miller, imposing disciplinary sanctions as previously specified. Following an affirmance of the hearing officer's decision by the Department of Corrections in a final decision, this appeal was filed.
The *.154 charge was based on evidence that defendant forced his way out of the locked shower. While Miller claims that a corrections officer let him out, the prison's version is that the locking mechanism on the shower door was faulty and had not yet been fixed, thereby permitting Miller to force it. On appeal, Miller claims that the hearing officer refused to allow him to view and to offer into evidence a videotape that would have recorded what took place. He claims that such a video existed, because there was reference to it in connection with the hearing officer's decision on the *.306 (conduct that disrupts) and *.004 (fighting) charges. Further, Miller contends the video "would have conclusively proved that COR. Fraley let [Miller] out of the shower himself and the *154 disciplinary charge that he lodged against appellant was fabricated."
However, the document to which Miller refers, A-15 in evidence, is a memo from Leonard Valisa to Guy Poretti dated March 29, 2011 that stated, in response to a request by the hearing officer for additional evidence: "The alleged assault is out of view. The inmate is observed at the gate when being escorted off of the tier." There is no competent evidence of the existence of a videotape recording any other portion of the incident at issue.
Miller next contends that the hearing officer's finding that he was able to force open the shower gate after being locked inside was not based on substantial credible evidence. He argues: "It is not humanly possible for a human to force open the metal shower gate on one tier or any other tier in the administrative segregation units in New Jersey State Prison once they are locked inside." However, the Special Custody Report, written after the incident, stated that locksmith Simon was in the area to fix the door at the time of the incident at issue, and after matters had been resolved, he proceeded to do so. For that reason, there was evidence to support the prison's position that Miller had forced the gate and was capable of doing so.
Miller also argues that he was only defending himself against an unprovoked attack from inmate Johnson when found to be fighting with him. He claims that N.J.A.C. 10A:4-9.13(f) allows an inmate to raise self-defense in circumstances such as those in which Miller was involved. N.J.A.C. 10A:4-9.13(f), which superseded DeCamp v. New Jersey Department of Corrections, 386 N.J. Super. 631 (App. Div. 2006), upon which Miller also relies, provides, in relevant part:
The Disciplinary Hearing Officer or Adjustment Committee will allow an inmate to raise self-defense to a prohibited act involving the use of force among inmates; however, the inmate claiming self-defense shall be responsible for presenting supporting evidence that shall include each of the following conditions:
1. The inmate was not the initial aggressor;
2. The inmate did not provoke the attacker;
3. The use of force was not by mutual agreement;
4. The use of force was used to defend against personal harm, not to defend property or honor;
5. The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and
6. Whether the force used by the inmate to respond to the attacker was reasonably necessary for self-defense and did not exceed the amount of force used against the inmate.
Here, Miller offers no evidence to satisfy these requirements, other than his bare assertion that Johnson "swung at me and we began to fight." The Hearing Officer could properly find such evidence insufficient to meet Miller's burden of proof, which she did.
Defendant next contends that he requested confrontation with Corrections Officer Fraley, who wrote the three disciplinary charges against him. His request was granted by the hearing officer, and a list of questions was provided by Miller. However, some of the questions that he proposed were not allowed. As a consequence, Miller claims that he was denied his right of confrontation. Miller specifically claims: the Disciplinary Hearing Officer would not ask the officer if appellant was carrying anything when he came out of the shower, the Disciplinary Hearing Officer refused to ask the officer if an inmate who was off the unit on a pass returned to the unit while appellant was in the shower, [and] the Disciplinary Hearing Officer refused to ask the officer if he removed items off of the tier while appellant was in the shower and if items were placed on the tier for inmate Johnson while appellant was in the shower.
Miller claims that: "All of these questions were relevant to show that at no time while appellant was in the shower did the officer who lodged the disciplinary charges against him notice appellant doing anything unusual and that significant amounts of time expired between the three mentioned incidents."
We are satisfied that the Hearing Officer properly exercised her discretion in not requiring an answer to these questions, which were of marginal relevance to the proceedings.
Miller also claims that he sought to ask Corrections Officer Fraley on cross-examination why he stated that Miller forced his way out of the shower and began fighting with inmate Johnson if he knew inmate Johnson was in his cell at the time that Miller left the shower? However, N.J.A.C. 10A:4-9.14(c) and (e) do not permit oral cross-examination, but only the submission of written questions. Further, the evidence supports the position that Johnson was on the tier performing the functions of a tier runner and either was not in his cell or his cell was open at the time of the incident.
Miller complains that he was also precluded from asking Corrections Officer Fraley in cross-examination if he was barefooted and shirtless when he was escorted off the tier and if the videotape from the surveillance camera would show him being released from the shower. While, as stated, the oral examination was unauthorized, we also note that Corrections Officer Fraley answered a written question similar to Miller's first query: "Did I have on a shirt or sneakers when I came out of the shower?" Fraley responded: "I believe he was wearing clothes." As to the existence of a videotape memorializing what had occurred, we have previously noted an internal prison memo that demonstrated that the video showed only Miller being escorted from the tier. As a consequence, we find no denial of Miller's due process rights to have occurred by limiting his examination and cross-examination of Corrections Officer Fraley.
As a final matter, Miller claims that he was denied his right to present documentary evidence consisting of copies of remedy forms and letters that he had submitted to the Administrator of New Jersey State Prison, Greg Bartkowski, and letters that he had received from Administrator Bartkowski, the Corrections Ombudsman, and from the office of the Commissioner of the Department of Corrections. Miller claimed that these documents would show that Johnson's attack and the subsequent "false" disciplinary charges lodged against him constituted retaliation for his filing of a complaint in the United States District Court against correctional and administrative staff within New Jersey State Prison. The documents, Miller contends, would have demonstrated that "the correctional staff within the prison were harassing him and entering into the cell that appellant was assigned to and destroying his property."
We have reviewed the documents that Miller sought to introduce, and have determined that they do not support Miller's claim of retaliation. One document does contain a complaint that, on February 23, 2011, while Miller was out of his cell, his sneakers were mutilated. However, there is no suggestion in any of the documents that Johnson committed the mutilation, and there is no suggestion that Johnson or anyone else acted with the cooperation of prison staff.
In summary, we find nothing in the record that would support Miller's claim of a deprivation of due process in connection with these disciplinary proceedings, which conformed to the due process requirements articulated in Avant v. Clifford, 67 N.J. 496, 520-33 (1975); McDonald v. Pinchak, 139 N.J. 188, 194-99 (1995) and Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Additionally, we find that the adjudications at issue were not arbitrary or capricious, and that they were sufficiently supported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
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