PHILLIP RIVERA v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

 
DOCKET NO. A-6613-04T56613-04T5

PHILLIP RIVERA,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

___________________________________________

 

Submitted July 18, 2006 - Decided August 8, 2006

Before Judges Parker and Sapp-Peterson.

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

Philip Rivera, appellant, pro se.

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

PER CURIAM

This is a prison disciplinary appeal. Petitioner Phillip Rivera, an inmate currently confined at Northern State Prison, appeals from a final determination of the Department of Corrections (DOC) that he failed to follow an order of a staff member, contrary to N.J.A.C. 10A:4-4.1(a).256. We affirm.

The record discloses that on May 21, 2005, Senior Corrections Officer (SCO) Nuttall observed petitioner carrying a full laundry bag as he attempted to leave a close custody area of the prison. Nuttall stopped petitioner and ordered him to turn over the laundry bag for a search. Petitioner refused and SCO Nuttall repeated the order. Rather than hand over the laundry bag to the SCO, petitioner attempted to enter another wing of the prison. The SCO radioed for assistance. Petitioner was ultimately restrained, escorted to the prison infirmary where he was examined and found to be free of any visible injuries, and then placed in pre-hearing detention.

A disciplinary report was delivered to petitioner, in which he was charged with committing prohibited act *.708, refusing to submit to a search, N.J.A.C. 10A:4-4.1(a)*.708. Petitioner pled not guilty to the charge.

An investigation into the charge was conducted by Sergeant A. Manning. Petitioner claimed that he offered Nuttall an opportunity to search his laundry bag, but Nuttall refused. He instead ordered petitioner to throw the bag into the garbage, which petitioner refused to do. Another inmate, Antwin Page, corroborated petitioner's statement that Nuttall told petitioner to throw the laundry bag in the garbage and that petitioner never refused to allow Nuttall to search the bag.

The matter was referred for courtline adjudication. During the courtline hearing, petitioner admitted that he failed to follow an order given by staff. The hearing officer downgraded the original charge to .256, refusal to obey an order, and offered petitioner twenty-four hours to prepare a defense to the amended charge. Petitioner waived the additional preparation time and declined an opportunity to confront and cross-examine witnesses. After the evidence and arguments were presented, petitioner and his counsel substitute reviewed all the evidence submitted for the hearing officer's consideration, and counsel substitute confirmed that the Adjudication Report accurately reflected what occurred at the courtline adjudication proceedings. The hearing officer found petitioner guilty of violating .256, refusing to obey an order, concluding that "inmates do not get to pick and choose what they have to do."

The hearing officer recommended a fifteen-day detention, with sixty days loss of commutation time, ninety days administrative segregation, and fifteen days loss of recreation privileges.

Petitioner filed an administrative appeal, in which he claimed that he pled guilty to the lesser charge "to get it over with" and requested leniency on the sanctions. The hearing officer's determination was affirmed and the recommended sanction was imposed.

On appeal petitioner contends:

THE DEPARTMENT OF CORRECTIONS DID NOT PROVIDE DUE PROCESS TO APPELLANT DURING THE DISCIPLINARY HEARING PROCESS, WHEREFORE THE MATTER SHOULD BE REVERSED.

After carefully reviewing the record, we are satisfied that petitioner's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Affirmed.

 

Disciplinary infractions preceded by an asterisk "are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1a.

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4

A-6613-04T5

 

August 8, 2006