ERNIE FORD 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NOT FOR PUBLICATION WITHOUT THE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-4019-04T24019-04T2

ERNIE FORD,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

 

Submitted March 8, 2006 - Decided April 6, 2006

Before Judges Wefing and Wecker.

On appeal from a Final Decision of the

Department of Corrections.

Appellant submitted a pro se brief.

Zulima Farmer, Attorney General,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel;

Lisa A. Puglisi, Deputy Attorney General,

on the brief).

PER CURIAM

Appellant Ernie Ford is an inmate in the custody of the Department of Corrections. He appeals from a Final Decision of the Department finding him guilty of disciplinary infraction *.306, conduct which disrupts or interferes with the security or orderly running of the institution. As a consequence of that adjudication, Ford received fifteen days in detention, three hundred sixty-five days in administrative segregation, and he also lost three hundred sixty-five days of commutation credit. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On January 1, 2005, a melee between inmates and corrections officers occurred at Bayside State Prison, the institution to which Ford had been assigned. The incident commenced when a corrections officer attempted to frisk another inmate, Omar McCrae. McCrae resisted and called out "RAT-TAT-TAT MY DOGS OUT." According to the Department, that was a signal to nearby inmates who were members of the Bloods, who responded by assaulting the officers. The corrections officers on duty at the scene were unable by themselves to quell the disturbance and had to call for assistance. They were still unable to restore order, even with the help of those officers who responded to this first call for help. Eventually, the officers had to place three calls for assistance before they could subdue the inmates. Twenty-nine custodial supervisors and officers were injured in this incident, nineteen seriously enough to be examined at nearby hospitals. Twenty-seven inmates were identified as having some involvement, one of whom was appellant Ford.

The disciplinary charge against Ford was not based upon an allegation that he had participated directly in the attack upon the officers, but that he was present in the dayroom when the attack occurred and did not comply with the order that was given several times to return to his bunk. The failure of Ford and other inmates to comply with these orders complicated the officers' attempt to subdue the remaining inmates.

Ford, however, insisted that he had no involvement at all in what had occurred but had been in his cell the entire time. He said he was mistakenly swept up in the aftermath and that he was grabbed from his bunk, put on the floor and beaten. He was later transferred to New Jersey State Prison, where the disciplinary hearing took place.

On appeal, Ford makes the following contentions:

POINT I

THE DECISION OF THE HEARING OFFICER

VIOLATES DUE PROCESS AND SHOULD BE

VACATED.

(a) The decision of the Hearing Officer should be vacated because the decision was not based upon substantial credible evidence.

POINT II

THE HEARING OFFICER'S DECISION FAILED TO ARTICULATE FACTS ESTABLISHING APPELLANT'S GUILT.

Within his brief, Ford complains that although he had filed a request for a polygraph examination and had been informed the request had been granted, the disciplinary hearing was conducted without his having been afforded the opportunity to undergo such an examination. The Department rebuts this assertion by including within its appendix a memo to Ford dated January 18, 2005, two days before the disciplinary hearing, denying his request for a polygraph examination. The Department also notes our recent decision in Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div 2005), in which we held that the discretionary determination to deny an inmate a polygraph examination in conjunction with disciplinary charges is to be reversed only if it is arbitrary, capricious or unreasonable.

In Ramirez, we set forth the following test to measure the discretionary decision to grant or deny an inmate's request for a polygraph examination:

[A] prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO's statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be effected (sic) when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Ramirez, supra, 382 N.J. Super. at 24.]

The evidence presented at the disciplinary hearing included the statement of Lieutenant Riebe, who was present during the altercation. Lieutenant Riebe noted that the inmates present in the dayroom were repeatedly ordered to return to their bunks, and he specifically identified Ford as one of the inmates who did not comply with this order. Within his brief, Ford asserts that he was simply swept up in the attendant confusion and found guilty merely because he was charged. His assertion of an indiscriminate, dragnet approach, however, is undercut by his further statement that at least four other inmates charged with the same offense were found not guilty.

We have carefully reviewed the record presented to us and we are satisfied that the Department's decision is supported by sufficient credible evidence on the record as a whole and that it should, accordingly, be affirmed. R. 2:11-3(e)(1)(D).

We are, however, compelled to comment on one aspect of the record. The Department has included in its appendix a copy of the adjudication sheet from the disciplinary hearing which has been typed "for the convenience of the court." In reviewing the typed sheets in comparison to the handwritten originals, we have noted certain discrepancies. The handwritten sheet, for instance, notes that the hearing took place at NJSP, presumably New Jersey State Prison. The typed sheet says the hearing took place at EJSP, presumably East Jersey State Prison. The handwritten sheet notes that the disciplinary hearing was originally scheduled for January 10, 2005, and gave as the reason for postponement, "ford (sic) request a polygraph." The typed sheet entirely omits this statement and gives no reason for the postponement.

A further example relates to the scheduled hearing dates of January 12, 2005 and January 14, 2005. According to the handwritten sheet, the reason for postponement was "await response on polygraph request and additional (indecipherable) on related case." The typed sheet, however, gives the following as the reason for postponement: "Await information from Bayside."

Typed transcription sheets are indeed helpful in matters such as this, in which the original handwritten sheets can be difficult to read. It is critical, however, that the transcription be entirely accurate. We deem it the responsibility of the attorney submitting such transcribed material to the court to assure its complete accuracy.

 
In light of these perceived differences, we have reviewed this record with particular care. We are satisfied, nonetheless, having completed this review, that the Department's decision should be affirmed.

Affirmed.

(continued)

(continued)

6

A-4019-04T2

April 6, 2006