October 12, 2012
BASIL BRANDON, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012 - Decided Before Judges Parrillo and Maven.
Basil Brandon, an inmate currently confined in Northern State Prison, appeals from the January 28, 2011 final decision of the Department of Corrections (DOC) finding him guilty of committing prohibited act *.004 charge (fighting with another person) and *.306 charge (conduct which disrupts or interferes with the security or orderly running of the correctional facility).*fn1 He also appeals the imposed sanctions. For the *.004 charge, Brandon was sanctioned to 15 days detention, 180 days of administrative segregation and 180 days loss of commutation time. For the *306 charge, Brandon was sanctioned to 10 days detention, 90 days of administrative segregation, and 90 days loss of community time, consecutive to the *.004 sanction. He was not given additional sanctions for the .210 charge. On appeal, Brandon challenges the determination as not supported by substantial credible evidence in the record. Based on our review of the record in light of the applicable standards, we affirm.
The facts adduced before the hearing officer revealed that on October 17, 2011, Senior Corrections Officer (SCO) Ortiz observed Brandon fighting with another inmate, Davis, in the tray room of the kitchen. SCO Ortiz gave multiple orders for both inmates to stop fighting and get to the ground. When Brandon refused, SCO Ortiz wrestled Brandon to the ground in order to prevent him from striking Davis. Another inmate, Mason, then approached SCO Ortiz, cursed at and threatened SCO Ortiz for restraining Brandon. All three inmates were questioned, and Davis stated that he was being "pushed up on" by Brandon and Mason to move drugs, which prompted the fight.
Based on that information, Lieutenant Clarke ordered a strip search of the three inmates, as well as the kitchen work detail, and a search of the inmates' cells. Sergeant Dilks conducted the search and found an altered razor in Brandon's cell. To accomplish the searches, activities in the kitchen and the gym were cancelled, and all other recreation activities were delayed. As a result, Brandon was charged with the prohibited acts.
On the date Brandon was served with the charges, Sergeant Weiss conducted an investigation. Brandon did not make a statement and did not name any witnesses at that time. Sgt. Weiss referred the matter to a hearing officer.
The hearing was scheduled for November 21, 2011, but was postponed to obtain witness statements. The matter concluded on November 23, 2011. With the assistance of counsel substitute, Brandon entered not guilty pleas to the *.004 and *.306 charges, and a guilty plea to the .210 charge.
At the hearing, Hearing Officer (HO) Ralph considered the testimony of Brandon, and relied on the written reports of SCO Ortiz, Lt. Clarke and Sgt. Dilks, as well as the testimony of inmates Mason and Davis. Brandon stated that he did not get along with SCO Ortiz, and that SCO Ortiz was "ordering him around." The inmate witnesses denied seeing any fighting. SCO Ortiz's statement reflects his eyewitness account of the fight, and the threatening manner in which Mason approached him. The other officers reported their involvement in the interviews, the searches, and the impact on the facility's operations.
After carefully reviewing the evidence presented, HO Ralph found that the statements of Brandon, Davis and Mason were not credible and were inconsistent with other statements, and relied on the reports of the prison officers to find Brandon guilty of charges *.004 and *.306. With respect to .210, HO Ralph relied on Brandon's guilty plea.
Brandon administratively appealed the decision of the hearing officer. Assistant Superintendent Gentilini upheld the guilty findings and the imposition of sanctions.
This appeal follows in which Brandon argues that the evidence was insufficient to support the findings of guilt, he was deprived of due process, and the hearing officer failed to adequately articulate the reasons for the disciplinary sanctions.
Brandon specifically asserts that the statements of the prison officers were not credible because SCO Ortiz's statement was not corroborated by other evidence and Sgt. Dilks and Lt. Clarke were not eyewitnesses to the events. Furthermore, he supports his claim that no fight occurred by noting that medical reports did not indicate that any of the three inmates sustained bruises, scars or injuries. As a result, Brandon argues that the guilty finding should be vacated or the matter remanded for a new hearing. We disagree.
The scope of our review of an agency decision is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [ ] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002). The adjudication report reflects that the hearing officer considered Brandon's statement that "he does not get along with SCO Ortiz," discredited the testimony of the other inmates noting, "D1 & D2 stated there was no fight - but they were involved in the incident." Further, the hearing officer concluded that "[Inmate] statements were inconsistent with other statements." Upon our review of the record, it was reasonable for the hearing officer to disbelieve Brandon's version of events due to his dislike of SCO Ortiz. It is also clear that Davis's testimony contradicted his earlier statement that the fight started because he was being "pushed up on" by Brandon and Mason to move drugs, thereby rendering his testimony not credible. Lastly, the hearing officer reasonably found SCO Ortiz's unrefuted eyewitness account credible given the resulting impact on the operation and activities of the unit, as reported by Lt. Clarke and Sgt. Dilks.
Measured by our standard of review, we are satisfied that the DOC's ultimate determination in this matter is sufficiently grounded in substantial credible evidence.
We now turn to Brandon's due process challenge and note that Brandon has not directed our attention to anything in the record that establishes any violation of his due process rights contrary to the procedural requirements of Avant v. Clifford, 67 N.J. 496, 528-32 (1975), as subsequently codified in N.J.A.C. 10A:4-9.1 to -9.28.
Brandon received timely notice of the charges five days prior to the adjudication hearing, and was granted the assistance of counsel substitute. A hearing was held before an impartial tribunal where he presented a defense with his statement and two witnesses. Brandon had the opportunity to confront and challenge the agency witnesses but declined to do so. Lastly, his counsel substitute signed the adjudication report acknowledging the accuracy of what took place at the hearing. We are satisfied, contrary to Brandon's contentions, that the hearing process employed by the prison officials comports with Avant.
Finally, we disagree with the contention that the "reasons given for the decision to impose disciplinary sanctions were inadequately articulated." *fn2 The hearing officer does more than provide a summary of the evidence relied upon, as required under Avant v. Clifford, supra, at 522-24. We are satisfied that the agency supported its conclusions with appropriate reasons. See Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003).
Ultimately, Brandon fails to identify any error committed in the hearing officer's decision to impose the modified sanctions. They are consistent with governing regulations. See N.J.A.C. 10A:4-5.1(a).