JAMES E. BRAXTON 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NOT FOR PUBLICATION WITHOUT THE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-3821-04t33821-04T3

JAMES E. BRAXTON #220549,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted March 13, 2006 - Decided April 3, 2006

Before Judges C. S. Fisher and Yannotti.

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

James Braxton, appellant pro se.

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent New Jersey Department of Corrections (Patrick DeAlmeida, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

James Braxton (Braxton), an inmate presently incarcerated at South Woods State Prison, appeals from a final determination of the Department of Corrections (Department) finding Braxton guilty of refusing to submit to a search and imposing disciplinary sanctions. We affirm.

On January 3, 2005, Braxton was charged with committing prohibited act *.708, refusing to submit to a search. N.J.A.C. 10A:4-4.1(a). An investigation followed immediately and it was determined that the charge had merit. The matter was referred to a hearing officer for adjudication. Braxton pled not guilty to the charge. At his request, a counsel substitute was assigned to assist him in the proceeding.

The hearing officer considered the reports completed by the correction officers who were involved in the incident. In his report, Lieutenant Buganski states that he observed an inmate hand Braxton a laundry bag. Buganski stopped Braxton and ordered him to turn in the laundry bag and its contents for a search. Additional staff was summoned to conduct the search. According to Buganski, Braxton "physically resisted the search and had to be physically restrained and handcuffed."

Officer Wernik states in his report that he and Officer Quay were called to search Braxton. Wernik was searching Braxton and Braxton became uncooperative. He was ordered several times to remove his left boot. Wernik states that Braxton became defiant and turned towards him. He was ordered to look forward and keep his chest on the wall. According to Wernik, Braxton turned around several times and became uncontrollable and boisterous. Braxton was cuffed and taken away.

Quay states in his report that, when Braxton was being searched, he started to hesitate and tried to look around. The officers ordered Braxton to take off his left boot but Braxton refused to remove the boot. Braxton started to resist and had to be handcuffed. He was escorted out of the area. Ten unopened packs of Bugler's tobacco were found in the laundry bag.

At the hearing, Braxton did not present any documentary evidence. He made no statement in his defense and he did not call any witnesses. Braxton was permitted to confront and question the officers involved. In response to the questions, Wernik stated that Braxton was held against the wall and ordered to remove his boots. The officers backed off to give Braxton space to remove his boots. Wernik said that, when he was ordered to remove his left boot, Braxton resisted and became very agitated. Wernik also said that when Braxton was told to remove his left boot, his right arm was being held and he could not use it; however, Braxton could have used his left hand to remove the boot.

Quay asserted in response to the questions that when Braxton was told to remove his left boot and sock, he became resistant and hesitated. According to Quay, Braxton had sufficient space to remove his boot. At this point, Sergeant Valle arrived and ordered the officers to handcuff Braxton. Quay added that Braxton did not speak. He was "just hesitant and looking around as if he was looking for a way out."

The hearing officer found Braxton guilty of refusing to submit to the search. The hearing officer concluded that Braxton did not comply with the search by hesitating to remove the left boot. The hearing officer further found that the laces on Braxton's boot were loose and Braxton "could have easily taken his foot out [of] the boots." The hearing officer imposed 15 days detention, 180 days of administrative segregation and the loss of 180 days of commutation time. The last sanction was suspended for 60 days.

On January 11, 2005, Braxton's counsel substitute filed an administrative appeal in which he argued that the adjudication resulted from a "gross misinterpretation" of the facts. The counsel substitute asserted that Braxton was merely trying to tell the officer that he could not remove his boot because the officer was holding him. The officer allegedly became agitated and took Braxton into custody. According to the counsel substitute, Braxton had no reason to refuse to submit to the search because nothing was found on Braxton's person after the subsequent search. Braxton asked that the sanctions be suspended or modified. On January 12, 2005, the associate administrator denied the appeal and upheld the sanctions. This appeal followed.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994). When reviewing a determination of the Department in a matter involving prisoner discipline, we consider whether there is substantial evidence that the inmate committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

Braxton argues that the final decision is arbitrary and capricious. Braxton contends that the hearing officer did not decide the matter fairly and impartially. He asserts that there is insufficient evidence to support the charge. Braxton contends that the officers conducting the search conceded during confrontation that they restrained him while ordering him to submit to the search. Braxton maintains that the hearing officer erred by excusing the officers' conduct.

We are convinced that there is no merit in Braxton's contentions. In our view, there is substantial evidence to support the disciplinary charge. The statements by Officers Wernik and Quay provide ample support for the hearing officer's finding that Braxton did not merely hesitate when told to remove his boot. He resisted the search and became agitated and boisterous. Moreover, the evidence supports the hearing officer's determination that Braxton was physically capable of removing his boot, despite his assertion that he was restrained and therefore unable to comply with the officers' directions. In the circumstances, we must give "due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Clowes v. Terminix Intern., Inc., 109 N.J. 575, 587 (1988)(quoting from Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

We are further convinced that Braxton was afforded all the process that was due. The Department adhered to the regulations that apply to inmate disciplinary matters. A counsel substitute was assigned to assist Braxton at the hearing. N.J.A.C. 10A:4-9.12(a). Braxton was given the opportunity to call witnesses and present evidence. N.J.A.C. 10A:4-9.13. He was given an opportunity to confront and cross-examine the officers who were involved in the incident. N.J.A.C. 10A:4-9.14. The finding of guilt was supported by substantial evidence. N.J.A.C. 10A:4-9.15(a). We reject Braxton's assertion that the hearing officer did not decide the matter in a fair and impartial manner. We are satisfied from our review of the record that the charge was fairly adjudicated.

Affirmed.

 

Prohibited acts that are "preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a). See also N.J.A.C. 10A:4-5.1.

Braxton was charged with prohibited act .210, possessing anything not authorized for retention or receipt. N.J.A.C. 10A:4-4.1(a). Braxton has not appealed from that determination.

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A-3821-04T3

April 3, 2006