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Steven Mckee v. New Jersey Department of Corrections

September 26, 2012

STEVEN MCKEE, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 September 10, 2012

Before Judges Graves and Guadagno.

Appellant, Steven McKee, a prison inmate, appeals from a final administrative determination of the Department of Corrections (DOC), imposing disciplinary sanctions pursuant to N.J.A.C. 10A:4-4.1(a), for committing prohibited act *.005, threatening a corrections officer. After careful consideration of appellant's arguments, we affirm the administrative finding that he violated *.005 and the disciplinary sanctions imposed for that violation.

I.

On May 19, 2011, at approximately 10:10 p.m., Senior Corrections Officer (SCO) Mather heard loud music coming from cell #1115, occupied by defendant. SCO Mather told defendant to turn the music down. Defendant refused to comply, prompting SCO Mather to again order defendant to turn the music down or use headphones. Defendant came up to the cell door and shouted to SCO Mather, "When I come out for work I'll fuck you up!" As defendant was assigned to a kitchen detail that was scheduled to begin in a few hours, SCO Mather was concerned and notified Sergeant Gibson of the threat. Defendant was taken from his cell and transported to prehearing detention.

On May 20, 2011, defendant was charged with disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property.

N.J.A.C. 10A:4-4.1(a). Sergeant Ennals served defendant with a copy of the charge, conducted an investigation and referred the charge to a hearing officer. When asked if he wished to call any witnesses at the hearing, McKee requested that fellow inmate, Jose Diaz, be called.

McKee pled not guilty and was granted the assistance of counsel substitute. The hearing was scheduled to begin on May 23, 2011, but McKee requested a polygraph examination. The prison administrator denied this request later that day. McKee also requested the opportunity to confront SCO Mather and Sergeant Gibson. The hearing officer granted McKee's request to confront SCO Mather but denied the request as to Gibson, although she did require Gibson to submit a statement, which caused postponement of the hearing. The hearing was delayed two additional times while awaiting Gibson's statement and once more due to the Memorial Day holiday.

The hearing concluded on June 2, 2011. McKee's counsel substitute argued the fourteen-day delay in concluding the hearing violated McKee's due process. McKee denied making the threat and claimed that as an inmate who has been incarcerated for twenty years he knew better than to threaten an officer. The hearing officer rejected both arguments and found that SCO Mather's testimony was consistent with his report. She found McKee guilty of the *.005 charge and imposed sanctions of fifteen days detention with credit for time served; one-hundred- eighty days administrative segregation; and one-hundred-eighty days loss of commutation time.

McKee filed an administrative appeal and on June 6, 2011, the hearing officer's decision was upheld by an associate administrator of the DOC.

On appeal, McKee claims his request for a polygraph was wrongfully denied, his hearing was impermissibly delayed, and he was entitled to confront Sergeant Gibson and question SCO Mather more extensively. He also argues that as an inmate who has been incarcerated for twenty ...


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