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Vasil Heisler v. New Jersey Department of Corrections

January 24, 2013

VASIL HEISLER, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 December 5, 2012 Before Judges Fuentes and Hayden.

Appellant, Vasil Heisler, an inmate currently incarcerated at New Jersey State Prison (NJSP) in Trenton, appeals from a final decision of the Department of Corrections (DOC) finding him guilty of disciplinary charges *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and *.708, refusal to submit to a search. Having considered the record before us and the applicable law, we affirm.

Heisler is a Rule 30 prisoner, a county inmate who has been placed in the DOC's custody. On August 5, 2011, a sergeant and a senior corrections officer went to Heisler's cell and ordered Heisler to submit to a search. According to the prison staff, Heisler refused, even after several repeated orders. The staff assembled a five person team to extract Heisler from his cell. All movement in the area ceased for more than fifteen minutes in order to escort Heisler from his cell and bring him to the medical unit. The entire incident involved five officers and two supervisors, keeping them from their normal duties for more than thirty minutes.

Heisler denied that he refused to be searched. Rather, since he had "prior problems" with the officers who came to his cell, he requested loudly and repeatedly that someone from the Special Investigations Division (SID) be present with a camera before the search occurred.

Immediately after this incident, the staff charged Heisler with Prohibited Acts *.306 and *.708. At the hearing, Heisler requested and received the assistance of a counsel substitute.

According to the hearing officer's report, Heisler declined the opportunity to name witnesses, introduce evidence or confront adverse witnesses. Heisler gave his explanation for not cooperating with the officers and further explained that after the incident he had written complaints to the SID and the Ombudsman's Office pertaining to the search procedure. He also argued that, as a county prisoner, he could be sanctioned at the most with fifteen days detention per charge for a maximum of thirty days detention under N.J.A.C. 10A:31-[17.2(b)]. As he was not a state prisoner, Heisler contended, he could not be sanctioned with administrative segregation time.

The hearing officer adjourned the hearing to look into Heisler's Rule 30 status and his complaints to the SID and the Ombudsman's Office. On August 16, 2011, the hearing officer rendered his decision, finding Heisler guilty of both charges. In his written report, the hearing officer noted that he relied on the staff disciplinary reports and the pre-hearing detention report. He also pointed out that NJSP records showed that Heisler had received a copy of the NJSP Handbook and had gone through a facility orientation. His investigation showed that neither SID or the Ombudsman's Office had any recent complaints from Heisler and no record existed that Heisler had been issued disciplinary charges by the two staff members who initially came to his cell.

After considering all the evidence, the hearing officer determined that Heisler had refused to submit to a search and that this refusal disrupted the facility, and thus, upheld both charges. For the *.306 charge, the hearing officer sanctioned Heisler with fifteen days detention, 180 days administrative segregation, thirty days loss of recreation privileges, and 180 days loss of commutation time.*fn1 For the *.708 charge, the hearing officer sanctioned him to fifteen days detention, 365 days administrative segregation, thirty days loss of recreation privileges, and 365 days loss of commutation time. Heisler appealed immediately. On September 6, 2011, the administrator issued a final decision, which upheld the hearing officer's determination and the sanctions. This appeal followed.

On appeal, Heisler raises the following contentions for our consideration:

POINT I - THE ADMINISTRATIVE SEGREGATION SANCTIONS WERE IMPOSED ON APPELLANT, A COUNTY JAIL DETAINEE HOUSED AT A STATE PRISON IN VIOLATION OF TITLE 30 AND N.J.A.C. 10A:31-16.12, THEREFORE, THE ADJUDICATION AND SANCTIONS IMPOSED SHOULD BE VACATED.

POINT II - THE MANNER IN WHICH THE HEARING WAS CONDUCTED DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS BY THE FAILURE OF THE ...


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