TERRANCE MEGGETT v. DEPARTMENT OF CORRECTIONS

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4204-04T34204-04T3

TERRANCE MEGGETT,

Plaintiff-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

____________________________

 

Submitted August 8, 2006 - Decided August 18, 2006

Before Judges Parrillo and Sabatino.

On appeal from a Final Decision of the Department

of Corrections.

Terrance Meggett, appellant pro se.

Zulima V. Farber, Attorney General of New Jersey,

attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy

Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Terrance Meggett, an inmate currently confined at Trenton State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding him guilty of disciplinary infractions *.002, assaulting any person, and *.803/*.203, attempting to assault any person, in violation of N.J.A.C. 10A:4-4.1, and imposing discipline on him.

On appeal, Meggett claims that (1) the evidence fails to support the charges, and (2) he was denied due process because of the DOC's failure to give him a fair polygraph test. We have considered each of these issues in light of the record, the applicable law, the arguments of counsel and defendant, and the appropriate appellate standards. We are satisfied that the final agency decision should be affirmed.

The facts giving rise to the disciplinary proceeding are simply stated. On January 1, 2005, while being frisked by Officer Kita in the dayroom area of Bayside State Prison, inmate Omar McCrae began throwing punches and calling out for support to other inmates, "RAT-TAT-TAT my Dogs out, Bloods Out," a gang phrase that mimics the firing of an automatic weapon. When other inmates began exiting their cells, a call for assistance was issued and other officers, including Lieutenant Riebe and Officer Togno, responded. After McCrae was secured in restraints, Officer Togno went to secure the east side security gate to prevent additional inmates from joining the incident. As Officer Togno approached the gate, inmate Brown struck him in the right eye. While Officer Togno was attempting to secure the inmate, Brown called out "Bloods Out" and more inmates began to enter the area from the housing wing.

Meggett, who was already in the area, picked up a broom and swung it at Officer Kita, in a whipping manner. Although Officer Kita moved out of the way in time, Meggett struck Officer Togno in the upper back. Lieutenant Haybeck attempted to restrain Meggett by placing him up against the wall, and Officer Kita disarmed Meggett of the broken broom handle.

Inmate Wallace then ran out of the housing wing, yelling, "I'm gonna kill one of you," struck Lieutenant Haybeck in the back of the neck, and punched him in the face with a padlock. Wallace then ripped an iron off the wall and struck Officer Togno in the back of the neck. Wallace and Meggett then ran down the wing, yelling threats at the officers, and shouting "I will kill you m-----f---ers". Once they exited the emergency door, the pair scaled the fence into the recreation yard, where they continued yelling threats to staff.

Lieutenant Riebe ordered Wallace and Meggett to lie on the ground with their hands behind their heads. Although Wallace began to comply, he hesitated when Meggett refused to comply, stating, "I will die for my Blood brother." Lieutenant Riebe again ordered the inmates to lie down, pointing pepper spray at them, and they eventually complied. Wallace and Meggett were cuffed and escorted to detention.

Meggett was charged with, and pleaded guilty to, disciplinary infractions *.002, assaulting Lieutenant Riebe, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. As noted, Meggett was also charged with, and adjudicated guilty by a hearing officer of, infractions *.002, assaulting Officer Tongo, and *.803/*.002, and attempting to assault Officer Kita, which are the subject of this appeal. He received sanctions of five days' detention suspended for sixty days, 365 days' administrative segregation and 365 days' loss of commutation credit for the *.002 charge, and fifteen days' detention suspended for sixty days, 365 days' administrative segregation and 365 days' loss of commutation credit for the *.803/*.002 charge. On administrative appeal, the guilty findings and sanctions were affirmed.

We find no basis to disturb the result, as we are satisfied that the DOC's ultimate determination is sufficiently grounded on substantial credible evidence and should be affirmed. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Suffice it to say, four officers - Tongo, Kita, Haybeck and Riebe - confirmed Meggett's attempted assault of Officer Kita and his assault of Officer Tongo. And contrary to Meggett's contention on appeal, the hearing officer considered the defense claim that Meggett was not in the area at the time, but rejected it as not credible and unsupported in the record, fully explaining his reasons for the rejection, as well as for the ultimate determination of guilt.

We are also satisfied that the administrative adjudication comported with procedural due process. See Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). Meggett timely received notice of the charge. The matter was thoroughly investigated, and heard by an impartial tribunal. Meggett was provided, as required, counsel substitute to assist him in his representation. Meggett and counsel substitute were shown the adjudication report and all documentary evidence submitted at the courtline adjudication. Both Meggett and counsel substitute were permitted the opportunity to make a statement on Meggett's behalf, to confront and cross-examine adverse witnesses, and to submit documentary evidence or call witnesses on Meggett's behalf.

We also perceive no unfairness in the administration of the polygraph test. As a threshold matter, we note that N.J.A.C. 10A:3-7.1(a) provides that "[a] polygraph examination may be requested by the Administrator" of the prison:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or 2. As part of a reinvestigation of a disciplinary charge, when the Administrator is presented with new evidence or finds serious issues of credibility.

[N.J.A.C. 10A:3-7.1(a).]

However, "'[a]n inmate's [mere] request for a polygraph examination shall not be sufficient cause[, in and of itself,] for granting the request.'" Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (quoting N.J.A.C. 10A:3-7.1(c)). Moreover, N.J.A.C. 10A:3-7.1 "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). Rather, "an inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20.

 
Here, the polygraph was administered to Meggett by a qualified individual and was terminated by Meggett prior to completion. His claim that the examiner's initial questions were irrelevant to the disciplinary charges is without merit, Rule 2:11-3(e)(1)(E), especially given Meggett's own election to cease the questioning before the examination was completed. Under the circumstances, we are satisfied that Meggett received all the process to which he was entitled and the adjudication of his guilt was amply supported in the record.

Affirmed.

These dispositions are not the subject of appeal.

Meggett was also charged with and adjudicated guilty of disciplinary infraction *.010, participation in an activity related to a security threat group, which is the subject of appeal docket number A-4203-04.

(continued)

(continued)

6

A-4204-04T3

 

August 18, 2006