DARRYL MAYNOR 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NOT FOR PUBLICATION WITHOUT THE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-4662-04T24662-04T2

DARRYL MAYNOR,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________

 

Submitted March 22, 2006 - Decided April 24, 2006

Before Judges Stern and Grall.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Darryl Maynor, appellant pro se.

Zulima V. Farber, Attorney General,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Darryl Maynor, an inmate at Northern State Prison, appeals from a final decision of the Department of Corrections finding him guilty of prohibited act *.009, "possession [of] . . . an electronic communication device . . . that is not authorized for use or retention." N.J.A.C. 10A:4-4.1. The Department imposed a sanction of fifteen days detention, 365 days of administrative segregation and loss of 365 days of commutation credits and ninety days of telephone privileges. The penalties are a component of the Department's "Zero Tolerance for Misuse or Possession of an Electronic Communication Device Policy." N.J.A.C. 10A:4-5.2(e); N.J.A.C. 10A:1-2.2.

On March 14, 2005, a cell phone was found during a routine search of Maynor's cell. The phone and its charger were in two separate folders containing Maynor's legal materials. Both items were seized. Maynor and his cellmate denied knowledge of either device. Because the contraband was found in Maynor's legal file, he was charged. With the authorization of a qualified superior officer, Maynor was placed in pre-hearing detention on the ground that he had been charged with the infraction and that there was a substantial possibility that he would attempt to harm, threaten or intimidate potential witnesses. See N.J.A.C. 10A:4-10.1(c)(6), (d).

On March 16, 2005, Maynor was served with the disciplinary charge and report. He requested counsel substitute, but did not request the opportunity to present or cross-examine any witnesses.

Maynor's first hearing was scheduled for March 18, 2005, which was within three days of his placement in pre-hearing detention as required by N.J.A.C. 10A:4-9.8(c). Maynor stated that the phone was not his and that he was having problems with his cellmate. The hearing was postponed for further investigation.

On March 21, 2005, the hearing was again adjourned to permit the Department to present a photograph of the phone. On March 22, 2005, Edwin Zapita, also an inmate at Northern State, wrote a letter on Maynor's behalf. It stated:

A day before [Maynor] was brought to detention I was in possession of his two brown [legal] folders. He gave them to me because he said he had a lot of cases that might help me get back my time. So I took the folders . . . . That night somebody said they were searching cells. So I threw my cell phone in one folder at the bottom and the charger in the bottom of the other folder for the time being. The next [morning] [Maynor] came back to my cell to get the folders back. I was half asleep and said [they're] right there, not thinking about what happened the night before or the phone. . . . [W]hen I came back to the tier [after work] a lot of people [were] saying [Maynor] and his bunky got locked up for a cell phone. Then I remembered that I put my phone and charger in the bottom of his folders . . . .

I'm giving this statement voluntarily because I don't want two other people to suffer for something they had no knowledge of.

The hearing continued on March 28, 2005. Zapita's letter was introduced on Maynor's behalf. An additional report was submitted by the officer who found the contraband. He wrote, "I located [a cell phone] and cell phone charger in what appeared to be brown legal style envelopes with inmate Maynor's name on the front of the envelope."

The hearing officer provided the following reasons for finding Maynor guilty of the charge:

He stated the phone was not his. He stated Zapita [] gave him the folder back and he did not look in it. He stated he didn't know what was in the folder. A few days after he was locked up, Zapita told him the phone was his. He (Zapita) submitted a letter over a week after the fact. The folder found with Maynor's name on it in his cell contained the cell phone. Maynor is responsible for his property. If he loaned it out, he should have checked it. He is guilty based on information, reports and possession of the cell phone in his cell with labeled documents containing his name.

On April 1, 2005, the Assistant Superintendent found the decision to be "based upon substantial evidence." For that reason, Maynor's administrative appeal was denied.

On appeal Maynor argues that the agency's decision was not supported by substantial evidence. In the alternative, he argues that the multiple postponements were not reasonable and amounted to a deprivation of due process. We reverse the decision imposing discipline because the Department's regulations do not give fair notice of a duty to inspect property loaned to another or risk punishment for possession of contraband.

We review decisions on prison discipline to determine whether the findings are supported by the record and give deference to the agency's interpretation of its regulations. Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). We defer to and do not reverse an agency decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). The agency's decision, however, must be sufficient to allow us to conclude that the agency has addressed the issues and must provide an explanation based on findings relevant to the violation charged. See ibid.

The central issue in this case is the hearing officer's interpretation of the Department's regulations on possession of contraband. The hearing officer assumed the truth of the facts that Maynor asserted -- i.e., that he loaned his legal folders to another inmate, did not check them when they were returned to him and did not know that the other inmate had placed a cell phone and charger in the folders. The hearing officer concluded that Maynor violated the prohibition against possession of a cell phone because he was "responsible for his property" and "should have checked it" if "he loaned it out."

In affirming the hearing officer's decision, the Administrator did not comment upon the underlying interpretation of the Department's regulations. Rather, the Administrator upheld the decision because it was "supported by substantial evidence." We infer that the Administrator agreed with the hearing officer's interpretation.

The briefs on appeal do not point us to a regulation that gives inmates notice that they may be held responsible for possession of contraband concealed by another among their belongings without their knowledge. N.J.A.C. 10A:4-3.1 details an inmate's rights and responsibilities; in pertinent part, it provides:

You have the right to be informed of the rules, procedures and schedules concerning the operation of the correctional facility.

. . . .

You have the responsibility to know and abide by the rules, procedures and schedules concerning the operation of the correctional facility.

. . . .

It is your responsibility to follow the laundry and shower schedules, to maintain neat and clean living quarters, to seek medical and dental care as you may need it, and not to waste food.

[N.J.A.C. 10A:4-3.1(a)(2), (b)(2),(4) (emphasis added).]

Nothing in the foregoing regulation suggests a responsbility of the sort imposed by the hearing officer.

Notice of conduct that is prohibited and required is a basic component of due process and fundamental fairness in prison disciplinary proceedings. See Avant v. Clifford, 67 N.J. 496, 513, 525 (1975) (discussing notice of rights and responsibilities and notice of specific violations alleged). Notice of the offense charged means little to one who had no prior notice of the obligation to perform or avoid the conduct and has no protection against an arbitrary expansion of the obligation or prohibition by an individual hearing officer. See Todd, Vagueness Doctrine in the Federal Courts, 25 Stan. L. Rev. 855, 857-60 (1974) (discussing the importance of fair warning and explicit standards for enforcement to notions of fundamental fairness that are central to procedural due process); see also Avant, supra, 67 N.J. at 521 (discussing procedural fairness and curbing administrative abuses).

While the Department has announced a "Zero Tolerance for Misuse or Possession of an Electronic Communication Device Policy," N.J.A.C. 10A:1-2.2, it has not announced a policy that would alert an inmate that his or her responsibilities include an affirmative obligation to search personal belongings to determine whether another person has chosen to conceal contraband among them. Nor has the Department announced a ban against loaning one's belongings to another inmate. Thus, nothing in the plain terms of the Department's regulations gives fair notice that an inmate could be liable on the basis of the facts assumed by the hearing officer.

Common understanding of duty and wrongdoing does not supply the notice lacking in the Department's regulations. Under the Code of Criminal Justice, liability for an omission, such as the failure to inspect loaned items, is not imposed unless a duty to perform the omitted act is clearly stated. See N.J.S.A. 2C:2-1b(1). Liability based on possession is not permitted unless the "possessor knowingly procured or received the thing possessed or was aware of his control [over it] for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c. Directly relevant here, criminal liability based on an inmate's possession of contraband depends upon the inmate's knowledge that he is in possession of the item. N.J.S.A. 2C:29-6a(2).

We recognize that prison disciplinary rules are not criminal laws and that the Code of Criminal Justice is not applicable in prison disciplinary proceedings. Nonetheless, the Supreme Court looked to the criminal law to inform a decision on the meaning of the Department's prohibition against threats made by inmates. See Jacobs v. Stephens, 139 N.J. 212, 222-23 (1995). Because the question in this case is the inmate's prior notice of a duty or prohibition, violation of which has grave consequences, it is reasonable to refer to the Code. See Avant, supra, 67 N.J. at 517-20. The Code states general principles underlying liability so as to "give fair warning," in language that can be commonly understood, of the conduct that is prohibited and required by the criminal law. N.J.S.A. 2C:1-2a(4); see McBoyle v. United States, 283 U.S. 25, 27, 51 S. Ct. 340, 341, 75 L. Ed. 816, 818 (1931).

The Department must have broad discretion in establishing clear regulations that are essential for safety and maintenance of order and discipline in its prisons. See Hamilton v. Dep't of Corr., 366 N.J. Super. 284, 292 (App. Div. 2004). It is important to rid prisons of items that pose a threat to safety or discipline and equally important to avoid scenarios in which inmates intimidate one another in order to escape liability for possession of contraband. See Avant, supra, 67 N.J. at 530, 530 n.27 (discussing questions of retaliation and intimidation related to prison disciplinary hearings); Jackson v. Dep't of Corr., 335 N.J. Super. 227, 233-34 (App. Div. 2000) (discussing importance of controlling contraband in prisons), certif. denied, 167 N.J. 630 (2001). For that reason, the Commissioner undoubtedly could adopt a regulation that obligates inmates to inspect all items received from or returned by another. Likewise, the Commissioner could adopt a regulation that prohibits possession of contraband whenever an inmate knows or has reason to know or suspect that there is contraband. See N.J.S.A. 2C:29-6b (prohibition against providing an inmate with anything that the person "knows or should know" is contraband).

Absent such a regulation, however, punishment of an inmate who did not know that another had concealed contraband among his belongings would be punishment without notice of the obligation to inspect or opportunity to avoid the violation. Because the present regulation gave no notice of a duty to inspect items loaned to another inmate, we reverse. We stress that the hearing officer did not find that Maynor was not credible and did not take testimony from Zapita. Rather, the hearing officer assumed that Maynor's account and Zapita's letter were truthful. Had the hearing officer made credibility findings, evaluated the evidence and drawn inferences of knowledge therefrom the result would be different.

The DOC has not requested a remand for additional findings, and we decline to remand for a new hearing because the Department placed this inmate in pre-hearing detention and then unduly delayed the hearing. Maynor's hearing extended well beyond the permitted time-frame for a post-deprivation hearing. N.J.A.C. 10A:4-9.9 provides:

(a) The failure to adhere to any of the time limits prescribed by this subchapter shall not mandate the dismissal of a disciplinary charge. However, the Disciplinary Hearing Officer or Adjustment Committee may, in its discretion, dismiss a disciplinary charge because of a violation of time limits. Such discretion shall be guided by the following factors:

1. The length of the delay;

2. The reason for the delay;

3. Prejudices to the inmate in preparing his/her defense; and,

4. The seriousness of the alleged infraction.

Maynor raised the Department's failure to provide a prompt post-detention hearing below. The Administrator's decision does not address the issue. Nothing in this record indicates reasonable grounds for the multiple adjournments. The stated reason for two of the adjournments was simply to permit the Department to present photographs of the phone and charger. This bald assertion is not adequate to permit us to conclude that the second adjournment of a post-detention hearing for that reason was reasonable; the officers who found the contraband seized it at the time of the discovery. See Layton v. Beyer, 953 F.2d 839, 850 (3d Cir. 1992) (deciding whether a hearing was afforded within a reasonable time requires a "careful review and consideration of the totality of the then existing circumstances"); Jacobs, supra, 139 N.J. at 219-20 (1995) (citing Layton, supra).

The order imposing discipline is reversed and the matter is remanded for restoration of commutation credits and expungement of the record of the infraction.

 

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A-4662-04T2

April 24, 2006