SHAKA ZULU 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NOT FOR PUBLICATION WITHOUT THE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-1661-05T51661-05T5

SHAKA ZULU,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 5, 2006 - Decided October 24, 2006

Before Judges Lefelt and Parrillo.

On appeal from a Final Decision of

the New Jersey Department of Corrections.

Shaka Zulu, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Kimberly A.

Sked, Deputy Attorney General, on the

brief).

PER CURIAM

Shaka Zulu is an inmate in a New Jersey State Prison. He appeals from the Department of Correction's final decision, finding him guilty of assaulting and attempting to assault a guard. He seeks reversal of his disciplinary sanction of 15 days in detention and 180 days in administrative segregation for the following four reasons: (1) the Department's decision was not supported by substantial evidence; (2) the Department hearing officer failed to articulate adequately the facts establishing Zulu's guilt; (3) the Department violated his due process rights by precluding the presentation of a security video tape of the incident and the administration of a polygraph examination; and (4) the Department violated numerous procedural rules including postponing the hearing for more than forty-eight hours and detaining him prior to the evidentiary hearing for approximately two months.

Our review of the entire record leads us to conclude that the disciplinary decision, accepting the guard's version of what occurred and rejecting Zulu's, was based on sufficient credible evidence on the record as a whole. R. 2:11-3(e)(1)(D). All of Zulu's first three points and the forty-eight hour postponement argument are without sufficient merit to warrant any further discussion in a written decision. R. 2:11-3(e)(1)(E).

Zulu's last point, however, has not been addressed by either the hearing officer or the Superintendent on Zulu's administrative appeal and warrants a remand. Zulu claims that he was held in pre-hearing detention in excess of the 15 days permitted by the pertinent rule. See N.J.A.C. 10A:4-5.3(a). This rule provides that "[a]ll disciplinary charges pending when the inmate begins serving time in Disciplinary Detention must be adjudicated prior to the completion of the inmate's Disciplinary Detention time. No inmate may receive more than 15 days in Disciplinary Detention as a result of a single disciplinary charge. . . ." Ibid. For more than one charge, an inmate may receive "up to 15 days for each disciplinary charge provided that the total time to be served in the Disciplinary Detention does not exceed 30 days." Id. at 5.3(a)(1) -(2).

The record reflects that plaintiff was placed in detention on September 12, 2005, the date of the incident. Due to several adjournments, most of which were requested by Zulu, the hearing was not completed until October 27, 2005. The record does not reflect the duration of Zulu's pre-hearing detention. If, however, he were detained during this entire period, he would have been detained longer than the thirty-day limit for disciplinary detention in violation of the rule. Ibid. If this were the case, the question of an appropriate remedy would be raised.

Although Zulu advanced the excessive detention issue in his administrative appeal brief, the final decision did not address the issue. In addition, neither the hearing officer nor the Department's brief before this court addressed this issue.

Accordingly, we remand this matter to the Department so that appropriate fact-finding and legal conclusions regarding Zulu's excessive detention argument may be undertaken. We do not retain jurisdiction.

 
Remanded.

(continued)

(continued)

4

A-1661-05T5

October 24, 2006