JOHN A. FOX, JR. 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NOT FOR PUBLICATION WITHOUT THE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-1205-04T31205-04T3

JOHN A. FOX, JR.,

Appellant,

vs.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________

 

Submitted: December 5, 2005 - Decided:

Before Judges Cuff and Holston, Jr.

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

John A. Fox, Jr., appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

In this prison disciplinary appeal, inmate John A. Fox, Jr., appeals from an adjudication of guilt on a .256 charge, disobeying an order of any staff member. N.J.A.C. 10A:4-4.1. The hearing officer recommended a sanction of fifteen days detention with credit for time served, sixty days loss of commutation time, ninety days administrative segregation and a referral to the psychiatric unit. The administrator upheld the decision of the hearing officer.

The charge arose from an exchange between the inmate and a psychologist at Northern State Prison. Fox had been referred to the psychologist to allow an assessment of his psychological status prior to a hearing on another charge of threatening another with bodily harm. On September 20, 2004, Fox participated in an interview with Alicia Caputo, Ph.D. During the interview, Fox became argumentative and Dr. Caputo instructed him to leave the room. When he refused, she ordered him to leave a second time. When he still did not leave the room, Dr. Caputo charged him with the .256 offense.

The hearing officer found that Fox became argumentative during the interview with the psychologist and refused to leave when requested to do so by the psychologist. He relied primarily on the report submitted by Dr. Caputo.

On appeal, the inmate contends that he was not provided with all of the rights and privileges due to him, that the decision was not based on substantial evidence in the record, and that the discipline imposed is severe and unjust. We disagree.

Based on a careful review of the record, we are satisfied that the disciplinary action is supported by sufficient credible evidence in the record as a whole and that the discipline is proportionate to the offense. R. 2:11-3(e)(1)(D)(E). We briefly address the inmate's contention that he did not receive the process he is due.

The Department of Corrections must afford inmates certain limited protections prior to being subject to disciplinary sanctions. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Avant v. Clifford, 67 N.J. 496, 529-30 (1975). These protections have been codified at N.J.A.C. 10A:4-9 and include prompt written notice of the charges, an impartial tribunal, a limited right to call witnesses, a right to a written statement of the evidence relied upon by the trier of fact and the reasons for the sanctions, and the assistance of counsel substitute.

Here, Fox received timely notice of the charge, a timely investigation was conducted, and a hearing was conducted promptly. The hearing officer advised the inmate of his use immunity right and the opportunity to call and confront witnesses. Fox, however, declined to request the presence of any witness for cross-examination and did not present any witnesses in his defense. The inmate gave a statement at the hearing. Counsel substitute was appointed and requested leniency. Therefore, we are satisfied that Fox was given the process he was due.

 
Affirmed.

This charge was eventually downgraded to an "on the spot" correction. As such, the initial *.005 charge (threatening another with bodily harm) and the issues relating to that charge are no longer before this court.

(continued)

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4

A-1205-04T3

December 16, 2005