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Michael Ellis v. New Jersey Department of Corrections

August 24, 2012

MICHAEL ELLIS, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 April 18, 2012 -

Before Judges Lihotz, Waugh and St. John.

Appellant Michael Ellis, an inmate, appeals from a final determination of the Department of Corrections (DOC), concluding Ellis was guilty of prohibited acts: *202 (possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool); *203 (possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff); and *803 (attempting to commit an asterisk offense, aiding another person to commit any such act or making plans to commit such acts). On appeal Ellis argues:

POINT I

THE APPELLANT WAS CHARGED IN RETALIATION FOR THE EXERCISE OF THE CONSTITUTIONAL RIGHT OF REDRESS (OF WHICH THE APPELLANT HAS MADE A PRIMA FACI[E] CASE ACCORDING TO CASE LAW). IF THE *.803/*.203 WAS A FALSE CHARGE IN RETALIATION, SO WAS THE *.202, WEAPONS CHARGE. THE APPELLANT WAS SET-UP.

A. THE HOOCH CHARGE. HOOCH IS SLANG FOR ALCOHOL MADE FROM MOLDY BREAD AND FRUIT JUICE. BECAUSE OF THE WAY THAT THE *.803/*.203 CHARGE WAS HANDLED BY THE H.O. THERE IS NOT ENOUGH EVIDENCE FOR A FINDING OF GUILT.

POINT II

THE *.202 (INTRODUCTION OF A WEAPONS CHARGE) SAME OFFICERS SAME CHARGES.

We affirm.

These facts are established in the administrative record. On June 10, 2010, while Ellis was confined to the Adult Diagnostic and Treatment Center (ADTC), Senior Corrections Officer (SCO) R. Renales discovered a note on his desk advising Ellis had "some type of illegal cutting device under [his] mattress." During a cell check, SCO Renales found "a homemade weapon consisting of one razorblade glued between two popsicle sticks" under Ellis's bed. Also, SCO Renales discovered a "peanut butter jar containing what appear[ed] to be orange rin[d]s and sugar in liquid" in Ellis's footlocker. SCO Renales suspected the liquid contained homemade alcohol or "hooch," because it "popped" when opened, "as if under pressure."

Ellis did not enter a plea to the *202 charge (possession of a weapon), but claimed he was "set up." He pled not guilty to the *203 and *803 charges, maintaining the orange water was "fabric softener" used for his laundry. Ellis, represented by counsel substitute, did not submit a request for confrontation of witnesses.

The hearing officer (HO) considered the documentary and physical evidence, including the homemade knife and the jar of orange water. The HO found Ellis guilty of prohibited act *202, for which he was sanctioned ten days detention, 125 days administrative segregation, and 125 days loss of commutation time. Regarding the other charges, the HO rejected Ellis's contention the liquid was a laundry additive, remarking, "you could smell alcohol on top" of the jar, observing the liquid "was bubbling around the sides." Ellis was found guilty of both prohibited acts *203 and *803, for which he received consecutive sanctions of fifteen days ...


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