KENNETH WALDEN v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3700-05T23700-05T2

KENNETH WALDEN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________

 

Submitted November 1, 2006 - Decided November 27, 2006

Before Judges Collester and Sabatino.

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

Kenneth Walden, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Kenneth Walden, a State inmate, appeals disciplinary sanctions imposed upon him for his alleged violation of N.J.A.C. 10A:4-4.1(a)*.203 (disallowing the possession of certain substances). These sanctions were imposed after contraband was discovered among his belongings when the Department of Corrections transferred him in February 2006 from the East Jersey State Prison ("East Jersey") in Rahway to the Southern State Correctional Facility ("Southern State") in Delran. We vacate the sanctions and remand for additional proceedings because, in conducting the disciplinary hearing at Southern State, the Department failed to afford appellant the opportunity to elicit testimony of witnesses from the East Jersey facility.

Appellant is serving a twenty-five-year sentence imposed after convictions for robbery, aggravated assault, and credit card theft. Although he had numerous institutional infractions from 1997 through 1999, since that time appellant has had a relatively clean disciplinary record, with only one subsequent violation in 2002 for the failure to comply with an unspecified rule or regulation. Appellant asserts, and it is not disproven by the Department, that he has undergone periodic drug testing over the past several years and has consistently tested negative.

On February 10, 2006, appellant was transported from East Jersey, where he was then housed in a dormitory setting with approximately forty-seven other inmates, to an unrelated appearance in the Superior Court. While he was on route to court, appellant was informed that after his court appearance the Department was immediately transferring him to Southern State. Appellant was relocated to Southern State later that day without even returning to East Jersey.

Appellant's supposed personal belongings were collected at East Jersey, apparently by other inmates, and placed into eight boxes. The items were transported to Southern State eleven days later on February 21, 2006. When those belongings were examined at intake by a Southern State corrections officer, he discovered a baby powder bottle containing fourteen hand-rolled marijuana cigarettes and a cellophane bag containing what proved to be marijuana. Appellant was ordered to submit to a drug test, which came back negative.

The following day, February 22, appellant was served with a disciplinary report charging him with a violation of asterisked offense *.203, which prohibits the possession or introduction of any prohibited substances such as drugs, intoxicants or related paraphernalia not prescribed for the inmate by the medical or dental staff.

Appellant contended that the baby powder container was not his property, and that it had been improperly included with his belongings when they were packed in his absence at Southern State. He pointed out that other items specified on the property inventory sheet also were not his own, including a "Walkman" portable music player. He noted that he had been housed at East Jersey in a dormitory setting, a place in which other inmates could have stored or planted contraband along with his own possessions. Appellant also pointed to his contemporaneous negative drug test and his steady pattern of past negative drug tests, which he suggested were inconsistent with the behavior of a substance abuser who would be hiding marijuana in a receptacle for personal use.

The Department's hearing officer at Southern State adjudicated appellant guilty of the charged infraction, based on the statements of personnel at Southern State who had uncovered the contraband. The hearing officer expressed skepticism that another inmate would use fourteen separate marijuana cigarettes to implicate appellant in wrongdoing when one such cigarette would suffice. The hearing officer also found the appellant's clean drug tests unpersuasive, noting that appellant could simply have been trafficking in the distribution of illegal drugs rather than using them.

Appellant received sanctions of fifteen days detention, 365 days of administrative segregation, 365 days of lost commutation time, permanent loss of contact visits and mandatory referral to a drug treatment program. The Department denied appellant's administrative appeal. This appeal ensued.

Although we are guided by our strong policies of deference to the Department as the administrative agency responsible for prisoner discipline, see Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980) (requiring affirmance of such administrative determinations unless they are shown to be arbitrary, capricious, or unsupported by credible evidence), we are persuaded that the disciplinary finding of guilt and the associated sanctions must be vacated in these unusual circumstances because of procedural deficiencies. In particular, we perceive that appellant was denied a fair opportunity at his hearing at the Southern State facility to muster proofs from his former East Jersey facility that might have been probative of his guilt or innocence, a deprivation which casts doubt upon the Department's circumstantial inference that the items packed at East Jersey were all, in fact, appellant's personal belongings.

Appellant specifically contends that he has been deprived of a fair opportunity to obtain testimony from potential witnesses at East Jersey who would have knowledge of the circumstances in which appellant's supposed belongings were gathered in the dormitory and packed for transport to Southern State. Specifically, he wanted to confront officers from East Jersey to confirm that inmates at that facility are indeed assigned to pack up a transferring inmate's property. He also seeks to establish, through such officers, that the dormitory setting in which appellant was housed at East Jersey was one in which other inmates would have had access to his personal belongings while appellant was off the premises at a court appearance. Appellant also contends that such witnesses could verify his claim that he never purchased any baby powder from the East Jersey commissary.

Our Supreme Court has instructed that prisoners in disciplinary proceedings must be afforded certain minimum due process protections, including the right to "call witnesses and present documentary evidence in their defense when such procedure will not be unduly hazardous to institutional safety or correctional goals." Avant v. Clifford, 67 N.J. 496, 529 (1975); see also Wolff v. McDonnell, 418 U.S. 539, 566, 94 S. Ct. 2963, 2979-80, 41 L. Ed. 2d 935, 956-57 (1974) (recognizing federal due process right of inmates in discipline cases to call witnesses, subject to legitimate security and correctional interests). We have enforced that right in numerous instances. See, e.g., Jones v. Dep't of Corrections, 359 N.J. Super. 70, 75 (App. Div. 2003) (holding that an inmate charged with threatening a corrections officer with bodily injury had the right to call another officer who was an eyewitness to the alleged altercation); Decker v. Dep't. of Corrections, 331 N.J. Super. 353, 358-59 (App. Div. 2000) (inmate charged with intentionally blocking a mess hall entrance had the right to confront an officer who allegedly had observed the incident, given the "absence of any reasons that justify an exception as a matter of prison security").

Indeed, the Department's own administrative regulations confer upon inmates the right to call fact witnesses at disciplinary hearings unless one of nine enumerated exceptions protecting various institutional interests is satisfied. See N.J.A.C. 10A:4-9.13(a)(1) through (9). We have considered those nine exceptions, and none of them pertain here.

The Department contends that appellant never sought testimony at his hearing from persons at the East Jersey facility. In that regard, it points to portions of the hearing officer's adjudication form, reciting that the inmate declined the hearing officer's "offer to have a confront[ation] hearing" and also that he declined the investigating sergeant's "offer to collect witness [statements] on his behalf." However, we have considered an affidavit from appellant's counsel-substitute contending that he did, in fact, request during the disciplinary hearing at Southern State the right to confront witnesses from the East Jersey facility, and had tendered a list of questions to present to such witnesses, but that the hearing officer declined to permit the examination of any witnesses from that other institution. The hearing officer's adjudication form does not address this particularized request. See McDonald v. Pinchak, 139 N.J. 188, 197 (1995) (noting that prison hearing officers must record their reasons for declining to call a requested witness).

We are not in a position to determine what, if any, reasons were considered by the Department in declining to provide appellant with access to testimony of personnel from the East Jersey facility. Although by no means do we endorse a per se rule that such testimony, either in oral or written form, is required for all cases in which a transferred inmate is accused of disciplinary infractions committed at a prior facility and wants to summon witnesses from that other facility, we conclude that the circumstances in this particular case justify such witness access.

Nothing in the record identifies any security impediments or other reasonable justification for depriving appellant of what may have been exonerating proof. The unusual setting here, in which appellant was moved, in abstentia, without having the chance to gather his own belongings, creates substantial uncertainties about the manner in which his supposed possessions were collected and packed. Although appellant's negative drug test results are not automatically exonerating, they do enhance the possibilities of mistake or untoward conduct in the collection and packing process. In sum, we vacate the Department's determination of appellant's guilt and the associated sanctions, without prejudice, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

The Department has not filed a timely motion to strike the affidavit, which was included with appellant's reply papers on appeal, nor has it sought leave to file a surreply to that affidavit under R. 2:6-11(b). Accordingly, we consider the affidavit as part of the record and as unrefuted.

See N.J.A.C. 10A:4-9.13(b) (authorizing testimony at disciplinary hearings "in a manner or form which is determined to be necessary to protect correctional facility safety or goals").

Apart from those possibilities, we also conceive it possible that another inmate who owned the contraband but who feared imminent detection might have used appellant's transfer as an opportunity to dispose of the powder bottle by shipping it off site. That sort of scenario would counter the hearing officer's assumption that there would be no need for a third party to "plant" more than one illegal marijuana cigarette in the container.

Our disposition makes it unnecessary to rule upon appellant's request for a polygraph examination, a request that he may renew in connection with the remanded hearing. Since we do not know whether or not any witnesses from East Jersey will corroborate appellant's claim of innocence, we cannot discern on the present record if sufficient credibility issues exist that might warrant a polygraph. See N.J.A.C. 10A:3-7.1(a); Ramirez v. Dep't of Corrections, 382 N.J. Super. 18 (App. Div. 2005).

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10

A-3700-05T2

November 27, 2006