RAHGEAM JENKINS v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2288-01T52288-01T5

RAHGEAM JENKINS,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

Submitted February 25, 2003 -

Remanded March 31, 2003

Before Judges Wallace, Jr. and Hoens.

Resubmitted June 16, 2003 -

Decided July 11, 2003

Before Judges Pressler and Hoens.

 

Resubmitted January 18, 2006 - Decided

Before Judges Kestin and Hoens.

On appeal from a Final Agency Decision of the Department of Corrections.

Rahgeam Jenkins, appellant pro se.

Nancy Kaplen, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Tamara L. Rudow, Deputy Attorney General, on the brief).

PER CURIAM

Rahgeam Jenkins, an inmate at New Jersey State Prison, appealed from a final decision of the Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act *.002, assault, N.J.A.C. 10A:4-4.1(a)*.002.

We first addressed the issues he raised in our unpublished opinion dated March 31, 2003. Jenkins v. N.J. Dep't of Corr., No. A-2288-01T5 (App. Div. Mar. 31, 2003). In that opinion we rejected all of his arguments except for his contention that he had been denied due process because he had not been permitted to view a surveillance videotape of the incident that gave rise to the disciplinary charges and that formed part of the basis for the imposition of discipline. We remanded the matter to DOC at that time with the following instructions:

[W]e are constrained to remand to the Department for the presentation of reasons in support of its position, if it continues to assert its desire to withhold the videotape. In that event, the Department has thirty days from the date of this opinion to submit that evidence and its reasons based thereon to this court under seal. If, however, the Department no longer asserts a security concern and decides to reveal the videotape of the incident to Jenkins, then the hearing shall be reopened, Jenkins shall be shown the tape, and the hearing officer shall decide the case anew.

Following that remand, DOC convened a rehearing on April 11, 2003. Jenkins and counsel substitute appeared. During that proceeding, the hearing officer advised Jenkins that the videotape would not be shown to him. The hearing officer gave Jenkins the following explanation of the reasons for the decision to deny his request to see the videotape:

13. Reason for withholding confidential materials from the inmate.

If inmates were authorized to view videotapes of the Center Rotunda, the security of the area would be compromised. Inmates would be able to discern camera placement, the timing of the cameras and how well the camera can zoom in and out on a particular incident. It would also show the location of any blind spots the camera cannot cover. This could certainly lead to problems as inmates may attempt to involve themselves in prohibited behavior in areas the camera cannot reach. To allow inmates to view the videotapes would provide them the opportunity to note and study security-related information. For these reasons Jenkins will not be allowed to view the videotape.

Thereafter, the hearing officer's report of the rehearing, which included these reasons, was filed with this court. Jenkins was directed to file his supplemental brief, if any, by June 15, 2003. When he did not do so, we deemed the matter to have been resubmitted and we issued our second unpublished opinion on July 11, 2003. Jenkins v. N.J. Dep't of Corr., No. A-2288-01T5 (App. Div. July 11, 2003). In that opinion, we concluded that the reasons given by DOC for its decision to withhold the videotape from Jenkins expressed legitimate security concerns. We therefore rejected the argument that withholding the videotape from Jenkins represented a denial of his due process rights. We affirmed the DOC's findings and conclusions that Jenkins was guilty of the infraction and we affirmed the imposition of disciplinary sanctions.

After the time fixed for filing his supplemental brief had passed, but prior to the date on which our second opinion in this matter was filed, Jenkins filed a motion seeking reconsideration of the original decision and leave to file his supplemental brief nunc pro tunc. That motion was transmitted to the judges who had issued the second opinion approximately three weeks after that opinion was filed. Based on our review of that motion, we issued our August 1, 2003 order granting the motion to reconsider and permitting Jenkins to file his supplemental brief nunc pro tunc. By the same order, we directed DOC to file its answering brief within thirty days and to provide us with copies of the surveillance videotape for our in camera inspection as a part of our reconsideration of the issues. DOC filed a further brief as directed on August 18, 2003. DOC also filed copies of the videotape with this court under seal in October 2003.

While the reconsideration motion was pending, however, Jenkins filed a petition for certification with the Supreme Court of New Jersey. Because that petition precluded this court from addressing the matter further, we issued our sua sponte order on October 1, 2003 staying the proceedings. In that order, we afforded Jenkins the option of withdrawing his petition for certification and proceeding instead with our reconsideration of our July 11, 2003 decision. Neither Jenkins nor DOC advised us thereafter that Jenkins had withdrawn his petition for certification. On March 28, 2005, the still-pending appeal was dismissed for Jenkins's failure to prosecute. In June 2005, Jenkins filed his motion to vacate the dismissal and reinstate the appeal. Our order of July 19, 2005 granted that relief, permitted DOC to file its further brief in response to Jenkins's supplemental brief and directed that the matter be resubmitted for disposition.

We need not repeat the facts that gave rise to the disciplinary charges, which are fully set forth in our prior opinions. Rather we address, as we did in our July 11, 2003 opinion, the question of whether Jenkins was denied due process. His specific arguments are that he was denied procedural due process because he was not permitted to view the videotape on which the hearing officer relied, that the hearing officer's statement of reasons in support of the adjudication was insufficient to support the finding of guilt and that the reasons given to him by the hearing officer for withholding the videotape are both contrary to prison procedures and false. We have considered these arguments in light of the record and the applicable legal principles and find them to be unpersuasive. We therefore affirm.

Prison disciplinary hearings are not part of a criminal prosecution, and inmates are not entitled to the full spectrum of rights due a criminal defendant. Rather, prisoners are afforded certain limited protections prior to the imposition of disciplinary sanctions. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Avant v. Clifford, 67 N.J. 496, 525-33 (1975). Here, Jenkins was in fact afforded the full panoply of due process rights to which he was entitled.

In considering whether Jenkins was deprived of due process, we are mindful of the security concerns of the prison. His argument that he was deprived of a fundamental right because he was not permitted to view the videotape of the incident therefore must be considered in light of the legitimate security concerns that might be compromised by our decision. We reject the assertion that an inmate is entitled to view a videotape from a security camera which shows an incident simply because he demands it. Rather, we test the question of whether denying him permission to view it or any part of it was based on a valid security concern. See, e.g., McDonald, supra, 139 N.J. at 202; Jackson v. N.J. Dep't of Corr., 335 N.J. Super. 227, 233 (App. Div. 2000), certif. denied, 167 N.J. 630 (2001); Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Here, the hearing officer explained the reasons why Jenkins would not be permitted to view the videotape and specified the manner in which a contrary decision might compromise security. On appeal, Jenkins challenges those reasons, pointing out that the cameras in the rotunda are in full view of the inmates and arguing that therefore the inmates would learn nothing from seeing the videotape taken by one of them. We disagree.

As part of this most recent consideration of the appeal, we have viewed the videotape in camera. Our review of it demonstrates that the concerns expressed by the hearing officer are entirely valid. Seeing the videotape, as the hearing officer explained, gave us all of the information that he identified in his statement of reasons. Our independent review of the videotape permitted us to discern security-related activities that the inmates would not otherwise know. Based on our review of the videotape, we conclude that the hearing officer's decision to withhold it from Jenkins was permissible in light of these security concerns.

Moreover, our review of the videotape supports the report of the officer who charged Jenkins and it supports the hearing officer's findings and the imposition of sanctions. The videotape reveals a rather routine start to the search during which Jenkins initially raised his arms. When the officer's hands were above Jenkins's waist, Jenkins suddenly lowered his arms and moved his hands toward the officer's hands with apparent force. The officer then brought his arms up swiftly to subdue Jenkins. The videotape amply supports the officer's charge that Jenkins pushed or slapped his hand away and the imposition of discipline for the prohibited act of assault. Moreover, the videotape does not support Jenkins's assertion that the officer was conducting the search in an unprofessional manner or that Jenkins's actions were justified in some way.

Having considered anew each of the arguments raised and having conducted our independent review of the disputed videotape, we conclude that the decision to withhold the videotape was based on valid security considerations, that the reasons expressed to Jenkins for the refusal of his request to view the videotape were adequate and appropriate, and that Jenkins was not deprived of any due process rights during the proceedings. In addition, based on our review, we conclude that the finding of guilt and imposition of disciplinary sanctions were based on substantial credible evidence in the record. See Jacobs v. Stephens, 139 N.J. 212, 222-23 (1995).

 
Affirmed.

(continued)

(continued)

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A-2288-01T5

March 2, 2006