PAUL AUGE 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NOT FOR PUBLICATION WITHOUT THE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-5536-04T15536-04T1

PAUL AUGE,

Defendant-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Plaintiff-Respondent.

_______________________________________

 

Submitted February 14, 2006 - Decided March 6, 2006

Before Judges Yannotti and Humphreys.

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

Paul Auge, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent New Jersey Department of Corrections (Michael J. Haas, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Paul Auge, an inmate presently incarcerated at Northern State Prison, appeals from a final determination of the Department of Corrections, sustaining the imposition of disciplinary sanctions. We affirm.

On February 8, 2005, correction officers Robert Wasik and Matthew Schwartz went to Auge's cell for the purpose of conducting a routine search. Wasik observed Auge put a white medication envelope into his mouth. Wasik ordered Auge to place his hands on the wall and spit out the envelope. He attempted to stop Auge from swallowing the envelope. According to Wasik, Auge turned and struck him in the chest with his elbow. Wasik called for assistance. Sergeants J. Slaughter and Ronald Sloan responded. Slaughter applied a single burst of a chemical agent to subdue Auge so that he could be secured. After he was handcuffed, Auge spit the white envelope out of his mouth. It was found to contain a controlled dangerous substance the size of a dime, in the form of white chalk.

Auge was taken to the hospital. Upon examination, it was noted that Auge had several superficial scrapes on his right shoulder. There were finger marks on his upper left arm. Auge's right eye was almost swollen shut and he was given an ice pack. Auge complained of a headache. He showered to remove the chemical agent that had been sprayed on him during the incident.

Ague was charged with committing prohibited act *.002, "assaulting any person." Sergeant Carlos Perez delivered the charge to Auge at 10:38 a.m. on February 9, 2005. Auge was informed of his use immunity rights. Perez conducted an investigation of the incident. Auge pled not guilty and he requested the assignment of a counsel substitute. Perez found that the charge had merit and he referred the matter to a hearing officer for further action.

The hearing was scheduled for February 10, 2005 but it was postponed for a mental health evaluation of Auge. The hearing was rescheduled for February 14, 2005 but was postponed because the hearing officer had not received the mental health evaluation. On February 15, 2005, the hearing was postponed to allow for confrontation. The hearing was postponed on February 17, 2005 so that the confrontation could be scheduled. The hearing was postponed again on February 22, 2005 for additional confrontation and because Auge requested an opportunity to cross examine Sloan. On February 25, 2005, Schwartz was cross-examined. Confrontation was completed on February 28, 2005. The hearing was concluded on March 1, 2005. Auge was not present on that date because he was in the hospital; however, his counsel substitute presented a summation on Auge's behalf.

Auge did not testify at the hearing but he provided the hearing officer with a written statement in which he asserted that on February 8, 2005, he was standing in his cell when the door opened and Wasik entered. According to Auge, Wasik grabbed him by the throat, slammed his head against the wall and cut his scalp open. Auge stated that Wasik and Schwartz pushed him down onto the counter. Wasik was screaming at him but Auge said he could not understand what Wasik was saying because his head was "fuzzy from the head blow." Auge wrote that Slaughter leaned over the counter and sprayed him in the face with mace. He stated:

Then I was banged into the wall a few times and punched in the eye and face and kicked in the legs. I was dragged out of the cell and thrown face down on the floor. Then I was picked up and half carried to the wing door . . . where I was run head first into and through the door. I fell down on the floor . . . bleeding from the head.

Auge stated that he was walked to the infirmary and given a "cursory look over." He received no treatment and was taken to a cell.

Auge insisted that the officers' statements concerning the incident were inconsistent. He maintained that he did not assault any officer. He asserted that he did not provoke the "assault and beating" that he received. Auge stated that he is a "special needs senior prisoner," who suffers from severe depression and other serious illnesses. He stated that he had not had a serious infraction since 1985.

Auge also submitted a statement from his cellmate John Moore, who wrote that he was on the top bunk in the cell on February 8, 2005 when he observed a correction officer run into the cell, grab Auge by the neck and slam his head against the wall. According to Moore, Auge was pushed face down on the table and the officer leaned over him and told him to "spit it out." Moore was ordered to stay in his bunk. Moore said that he saw the sergeant come in and spray Auge with mace.

In the adjudication form, the hearing officer noted that he had reviewed, among other things, reports about the incident prepared by Wasik, Schwartz and Slaughter; the Use of Force Report; written confrontation questions and answers by Wasik, Schwartz, Slaughter and Sloan; certain special reports; reports concerning the seizure of contraband; the statement by counsel substitute; Auge's statement; Moore's statement; and a confidential report concerning Auge's mental health evaluation.

The hearing officer found that the testimony of the correction officers was consistent with the documentary evidence. The hearing officer gave no weight to Moore's statement because it failed to account for Auge's actions during the incident. The hearing officer rejected Auge's assertion that the officers' reports were false and misleading. The hearing officer concluded:

Based on the documentary evidence provided and the testimony of the witnesses during cross-examination, it is reasonable to conclude that during a cell search, CO Wasik observed inmate [Auge] attempt to swallow what he believed to be contraband. In an effort to prevent the inmate from swallowing the item, CO Wasik attempted to restrain inmate [Auge]. During the encounter, inmate [Auge] resisted the officer and struck him in the chest with his elbow. During the struggle, inmate continued to resist the staff and a chemical agent had to be used to restrain inmate [Auge]. Substantial evidence to support the charge, mental health eval [sic] reviewed.

The hearing officer imposed 15 days' detention, with credit for time served, and recommended 240 days of administrative segregation and the loss of 240 days of commutation credits. On March 16, 2005, Auge filed an administrative appeal from the hearing officer's decision. On April 22, 2005, Assistant Superintendent Eric Stokes upheld the hearing officer's determination. 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 of Corrections in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has 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).

Auge argues that there is insufficient evidence to support the finding that he committed the assault. Auge insists that there is no proof that he violated any prison rule or committed a prohibited act. He maintains that he was the victim of a brutal assault, yet he was charged with assault. Auge contends that the hearing officer relied upon the officers' reports "without any regard" for what Auge asserts are inconsistencies in the officers' statements.

We disagree. There is ample support in the record for the hearing officer's finding that Auge assaulted Wasik by striking him in the chest with his elbow and struggling with the officers who came to Wasik's assistance. Auge tells a different version of the events. He considers himself the victim rather than the perpetrator of an assault. However, 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)).

Auge also contends that he was denied due process because the hearing was postponed several times. An inmate who is alleged to have committed a prohibited act is entitled to a hearing on the charge "within seven days of the alleged violation, including weekends and holidays, unless such hearing is prevented by exceptional circumstances, unavoidable delays or reasonable postponements." N.J.A.C. 10A:4-9.8(b). Here, the record shows that the postponements were "reasonable." Ibid. The postponements were required so that Auge could avail himself of the opportunity to confront the witnesses who provided evidence against him.

Auge also contends that when the hearing resumed on March 1, 2005, he was not permitted to appear or participate. Auge could not attend the March 1, 2005 hearing because he was in the hospital at the time. However, the record shows that no testimony was taken on that day and Auge was represented by a counsel substitute who presented a comprehensive summation on Auge's behalf. Moreover, Auge's position was fully set forth in his written statement and he had been present earlier at the critical stages of the hearing process when evidence was taken. We therefore reject Auge's assertion that he was denied due process because the hearing proceeded in his absence on March 1, 2005.

Auge additionally argues that the administrator did not decide his administrative appeal in a timely manner. As we stated previously, Auge filed his appeal on March 16, 2005. The administrator decided the matter on April 22, 2005. While the decision was not rendered within seven business days "of receipt of the appeal," as required by N.J.A.C. 10A:4-11.7(a)(2), Auge was not prejudiced by the delay. Simply put, the error was harmless. Jacobs, supra, 139 N.J. at 219-20.

 
Affirmed.

(continued)

(continued)

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A-5536-04T1

March 6, 2006