CHRISTOPHER DEMUNGUIA v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2343-05T32343-05T3

CHRISTOPHER DEMUNGUIA,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

_____________________________

 

Submitted July 3, 2006 - Decided August 7, 2006

Before Judges Collester and Weissbard.

On appeal from a Final Decision of the

Department of Corrections.

Christopher DeMunguia, appellant pro se.

Zulima V. Farber, Attorney General, attorney

for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Dewan N. Arefin,

Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Christopher DeMunguia appeals a final decision of the Department of Corrections (DOC) finding him guilty of prohibited act *.010 and imposing him sanctions of fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation credit.

DeMunguia is currently incarcerated in Northern State Prison serving a five-year term for possession of a weapon for an unlawful purpose, aggravated assault and simple assault. While he was in South Woods State Prison in December 2005, he wrote a letter to another inmate known to be a member of the East Coast Aryan Brotherhood (ECAB), a gang previously designated as a security threat group (STG). The letter was confiscated and reviewed by a senior investigator of the DOC Special Investigations Division with expertise in gangs including the language and codes used by them. He determined that the letter contained many references to the ECAB, using terms and phrases associated with that gang. Accordingly, petitioner was charged with disciplinary infraction *.010, participating in an activity related to a STG in violation of N.J.A.C. 10A:4-4.1.

A hearing was held three days later before a member of the DOC central office staff. Petitioner declined a counsel substitute, did not request witnesses to be produced and did not confront or cross-examine the witnesses against him. He submitted a written defense to the charge in which he contended that the senior investigator "overreacted," that the letter was written to distance himself from future ECAB activities, and that the charge against him was the result of an application he made to have a white cellmate. The hearing officer considered the SID report prepared by the senior investigator as well as petitioner's letter of defense and found petitioner guilty of prohibited act *.010. Petitioner appealed to the assistant superintendent of South Woods State Prison, who upheld the guilty finding and sanctions.

Petitioner makes the following arguments to us:

POINT I - THE DECISION OF THE HEARING OFFICER WAS NOT BASED ON SUBSTANTIAL EVIDENCE DEPRIVING DEFENDANT APPELLANT OF DUE PROCESS OF LAW SECURED BY THE 14TH AMENDMENT AS HE HAS A LIBERTY INTEREST DUE TO LOSS OF COMMUTATION CREDITS.

POINT II - APPELLANT ASSERTS THAT THIS MATTER VIOLATED HIS RIGHT SECURED UNDER THE CONSTITUTION OF NEW JERSEY, ARTICLE I PARAGRAPH 6 DEPRIVING ONE OF HIS RIGHT TO SPEAKING FREELY AND THAT THIS MATTER RESTRAINED HIS LIBERTY OF SPEECH AS WELL AS ABRIDGED IT DUE TO LACK OF SUBSTANTIAL EVIDENCE. U.S. CONST. AMEND. 1.

POINT III - APPELLANT WAS DENIED DUE PROCESS OF LAW ON APPEAL AS IT IS CLEAR THAT THE ASSISTANT SUPERINTENDENT WHO RENDERED THE DISPOSITION OF DISCIPLINARY APPEAL WAS BIASED, ESPECIALLY IN LIGHT OF THE NATURE OF THE ALLEGED SECURITY GROUP INVOLVED, U.S. CONST. AMEND. 14, ART. I PAR. 1 CONST. OF NEW JERSEY.

After review of the record we hold that the decision of the DOC was supported by sufficient credible evidence and that petitioner's arguments are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following comments.

Our scope of review is limited to a determination as to whether the decision of the DOC is arbitrary, capricious or unsupported by credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Here there was substantial evidence to support the conclusion that petitioner participated in STG activity by writing a letter to another inmate that contained references to the ECAB as interpreted by the senior investigative officer of the DOC. There is no dispute that the ECAB is considered a security threat within the prison and that proper security requires the identification of such gangs and prohibition of their activities. Rules and regulations within the prison must "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995). See also Avant v. Clifford, 67 N.J. 496, 522 (1975).

Petitioner argues that his right to free speech protected under the New Jersey and Federal Constitutions was violated by the prison regulation prohibiting inmates from using STG-related terminology. It is well-settled that constitutional rights of inmates may be limited if they are reasonably related to legitimate security interests of the prison. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2262, 96 L. Ed. 2d 64, 79 (1987); Allah v. Dep't of Corr., 326 N.J. Super. 543, 547 (App. Div. 1999). Here the prison regulation was reasonable and aimed at protecting prison security which is central to all other goals. Thornburgh v. Abbott, 490 U.S. 401, 415, 109 S. Ct. 1874, 1883, 104 L. Ed. 2d 459, 474 (1989). A rule preventing inmates from engaging in unauthorized organizational activities that present a threat to prison security does not constitute an impermissible infringement on free speech as protected by both the United States and State Constitutions. Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002); Allah, supra, 326 N.J. Super. at 547. See also Hamilton v. New Jersey Dep't of Corr., 366 N.J. Super. 284, 288 (App. Div. 2004). Therefore, we find no undue or improper restriction of petitioner's right of free speech by upholding and enforcing the prison regulation.

Petitioner's final contention is that the assistant superintendent who reviewed and upheld the determination of the hearing officer finding defendant guilty of violating the regulation, was biased against him because the assistant superintendent was African-American and petitioner had previously requested a white cellmate. Nothing in the record supports this contention.

 
Affirmed.

(continued)

(continued)

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A-2343-05T3

August 7, 2006