U'BAY LUMUMBA 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NOT FOR PUBLICATION WITHOUT THE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-6760-04T36760-04T3

U'BAY LUMUMBA,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Defendant-Respondent.

________________________________________

 

Submitted July 31, 2006 - Decided August 15, 2006

Before Judges C.S. Fisher and Grall.

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

U'Bay Lumumba, appellant pro se.

Zulima V. Farber, Attorney General,

attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

Appellant U'Bay Lumumba, an inmate at New Jersey State Prison in Trenton, appeals from a final decision of the Department of Corrections finding him guilty of prohibited acts *.203, possession or introduction of a prohibited substance, and *.215, possession of prohibited substances with intent to distribute. N.J.A.C. 10A:4-4.1. On each charge, the Department imposed a sanction of fifteen days detention, 365 days loss of commutation credits, 365 days of urine monitoring and 365 days of administrative segregation. In addition, on the charge of violation of *.215, defendant received fifteen days loss of recreational privileges.

On April 30, 2005, Lumumba was incarcerated in Northern State Prison. A lieutenant assigned to that prison received a phone call from a person who did not give a name but reported that Lumumba would have a visit from a person who was planning to bring him drugs. A surveillance camera was used to videotape the room in which Lumumba met his visitor. A hearing officer who viewed the tape reported that the tape showed a woman handing Lumumba a small bag of "Bugles" chips. He walked around the room with the chips and returned to the visitor. He then reported to the "strip area." He kept the bag in his possession until the time he reported to the strip area. The tape ended when he entered that room.

The reports filed by officers who observed the events as they transpired are not entirely consistent with respect to details observed, but all of the reports indicated that Lumumba had possession of the bag. Lumumba himself admitted possession of a potato chip bag. He said that the bag contained cookies and that he gave it to one of the officers upon entering the strip room.

The bag was searched. It contained four balloons that held 101 individual packets; the officers suspected that the packets held a controlled dangerous substance. Lumumba was sent to pre-hearing detention.

On May 1, 2005, he was served with notice that he was charged with possession or introduction of a prohibited substance. He pled not guilty to that charge. He did not request witnesses or make a statement. He was provided counsel substitute.

Hearings scheduled for May 2, 5, 6, 9, 10, 12, 16, 17, 19, 20, 23, 25 and 26 were postponed because the substance found in the bag of chips had been sent for laboratory testing and the hearing officer had not received the laboratory report from the law enforcement agency conducting the test. On May 26, 2005, after receipt of the report, Lumumba was served with an additional charge -- possession of a prohibited substance with intent to distribute. He pled not guilty and requested counsel substitute but did not ask to present or confront witnesses.

On May 31, 2005, Lumumba asked that the matter be heard to conclusion, but the matter was again adjourned. On June 2, 2005, the hearing was not held and the record indicates that the delay was due to difficulties on the unit. The hearing was held on June 3, 2005.

Lumumba contends that the hearing was also adjourned prior to completion on June 3, 2005. The hearing officer's report, however, indicates that Lumumba, through counsel substitute, asked for the matter to be heard by a hearing officer assigned on one of the earlier dates because that officer had viewed the videotape. The adjudication report further states that Lumumba asked for the hearing to be completed, declined the hearing officer's offer of an opportunity to present or confront witnesses and withdrew a request to view a videotape of the strip-search room. The hearing officer found that the evidence, including the lab reports, Lumumba's statement and the reports filed by the officers supported a finding of guilt.

On June 4, 2005, Lumumba filed an administrative appeal. His notice of appeal stated: "I am appealing the *.203 based on due process by numerous violations of the 48-hour rule; and I am appealing the *.215 based on the long delay in bringing the charge: 25 DAYS. I would also ask that consideration be given to merged sanctions, as was done in similar situations involving others who received the same charges."

On June 21, 2005, the decision of the hearing officer was affirmed. The decision states: "There was compliance with [] N.J.A.C. Title 10A on inmate disciplin[e] which prescribes procedural safeguards. The decision of the Hearing Officer was based on substantial evidence. The sanction imposed was proportionate to the offense in view of the inmate's disciplinary history." That decision was delivered to Lumumba on June 27, 2005.

On appeal Lumumba argues:

APPELLANT WAS DENIED DUE PROCESS DURING THE DISCIPLINARY PROCEEDINGS WHEN THE CHARGES WERE NOT TIMELY FILED, WHEN THE HEARING WAS NOT TIMELY PROCESSED, WHEN THE APPEAL WAS NOT TIMELY DECIDED, AND WHEN APPELLANT WAS NOT ALLOWED TO SEE THE VIDEOTAPE TO PRESENT HIS DEFENSE, WHEREFORE THE MATTER SHOULD BE REVERSED AND THE CHARGE DISMISSED.

Lumumba was placed in pre-hearing detention. Pursuant to N.J.A.C. 10A:4-9.8(c), he was entitled to a hearing within three days. The numerous extensions in this case delayed the hearing well beyond the permitted time-frame for a post-detention 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.

This regulation is consistent with cases in which courts have held that the question whether a hearing was afforded within a reasonable time essential to satisfy the demands of due process requires a "careful review and consideration of the totality of the then existing circumstances." Layton v. Beyer, 953 F.2d 839, 850 (3d Cir. 1992); see Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995)(citing Layton, supra).

It is a matter of some concern that the decision on Lumumba's administrative appeal does not address the question of delay, which he clearly raised. "While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action." Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000). We do not reverse an agency decision unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record, but the decision must be sufficient to allow us to conclude that the issues have been addressed. Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). Especially when the decision is discretionary, this court should not be left to speculate about the basis for the discretionary decision. See Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 61 (App.Div.) (quoting Curtis v. Finneran, 83 N.J. 563, 569-70 (1980)), certif. denied, 146 N.J. 569 (1996).

Nonetheless, where the minimal requirements of due process have been met, we must consider whether deviation from the procedures for adjudication of prison disciplinary charges have prejudiced the inmate. Jacobs v. Stephens, 139 N.J. 212, 219 (1995). The Supreme Court has noted that a court should be "'reluctant to overtax and/or hamstring prison officials' execution of disciplinary policies and procedures by mandating an automatic remand for technical non-compliance with a regulation, absent some showing of prejudice to the inmate.'" Id. at 219-20. Putting delay aside, Lumumba was afforded the minimal process due in a disciplinary proceeding. Id. at 215 (reaffirming the standards for process due in prison disciplinary proceedings established in Avant v. Clifford, 67 N.J. 496, 525-62 (1975)).

We see no purpose in remanding this case so that the agency can explain its reasons for declining to dismiss the charges pursuant to N.J.A.C. 10A:4-9.9. There is nothing in the record to suggest that it would have been appropriate to dismiss these charges under the standards established in that regulation. See Klajman, supra, 292 N.J. Super. at 61-62 (exercising original jurisdiction where the relevant facts were clear on the record). The charge was serious, and the need to await a laboratory report from a law enforcement agency in order to fairly adjudicate that charge was apparent. Moreover, Lumumba did not allege that the delay prejudiced his effort to prepare or present a defense. He did not ask to present or confront witnesses. If the relevant factors were less clear than they are in this case, we would be constrained to either reverse or remand due to the failure to explain the exercise of discretion pursuant to N.J.A.C. 10A:4-9.9. We remind those who hear and review prison disciplinary charges of the importance of a written decision. Avant, supra, 67 N.J. at 524, 533.

The decision is affirmed.

 

(continued)

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A-6760-04T3

August 15, 2006