FREDERICK HEDGESPETH 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NOT FOR PUBLICATION WITHOUT THE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-6369-06T26369-06T2

FREDERICK HEDGESPETH,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted September 9, 2008 - Decided

Before Judges Wefing and Parker.

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

Frederick Hedgespeth, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Thomas E. Kemble, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Frederick Hedgespeth appeals from a final decision by the Department of Corrections (DOC) imposing sanctions on him for committing prohibited act .256, N.J.A.C. 10A:4-4.1 (.256), refusing to obey an order by a staff member.

The charge arose out of an incident on June 25, 2007 when a corrections officer (CO) instructed petitioner to take a food cart to the mess hall. Petitioner refused to take the cart and the CO ordered him into the chapel area where he was strip searched because of his suspicious behavior. After he refused a second order to take the food cart to the mess hall, claiming it wasn't his job, he was then placed in pre-hearing detention.

When the matter was investigated, petitioner stated that he had volunteered to push the cart but after he was strip searched, the cart was gone and when the CO told him to push another cart he refused because someone else was pushing it.

Counsel substitute was provided and a hearing was held on June 27, 2007. Petitioner pled not guilty and was offered the opportunity to confront witnesses, but he declined. He made no statement at the hearing and counsel substitute merely requested leniency. At the close of the hearing, counsel substitute acknowledged the accuracy of the hearing record.

Petitioner administratively appealed on the ground that the decision was not based on substantial credible evidence, that he was subject to a strip search in violation of DOC standards and that the written charge was incorrect. The DOC affirmed the hearing officer's decision on July 2, 2007.

In this appeal, petitioner argues:

POINT ONE

THE FINAL ADMINISTRATIVE DECISION MUST BE REVERSED AND VACATED BECAUSE IT IS GROUNDED UPON A PLAIN VIOLATION OF THE APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS BY RESPONDENTS COMPELLING A RETALIATORY AND/OR PUNITIVE STRIP SEARCH OF THE APPELLANT. U.S. CONST. AMEND. I, IV, VII, XIV; N.J.A.C. 10A:3-5.7(b)7; N.J.S. 2C:30-2

POINT TWO

THE FINAL ADMINISTRATIVE DECISION SHOULD BE REVERSED AND VACATED BECAUSE THE DOC HAS REFUSED TO ADOPT A POLICY OF PRESERVING VIDEOTAPES OF ALL PROHIBITED ACTS ALLEGED TO HAVE OCCURRED IN THE WEST COMPOUND ROTUNDA OF NEW JERSEY STATE PRISON, THEREBY ARBITRARILY DENYING INMATES ACCESS TO MATERIAL EVIDENCE TO SUPPORT A DEFENSE, AND THEREBY DENYING A FAIR HEARING. N.J. CONST. (1947) Art. 1, Par. 1; N.J. CONST. (1994) Art. 1, Par. 5; N.J.A.C. 10A:4-8.4(a); N.J.A.C. 10A:4-9.13; N.J.A.C. 10A:4-9.14

POINT THREE

THE FINAL ADMINISTRATIVE DECISION SHOULD BE REVERSED BECAUSE THE DECISION WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE. N.J. CONST. (1947) Art. 1 Par. 1; N.J.A.C. 10A:4-9.15

POINT FOUR

THE FINAL ADMINISTRATIVE DECISION MUST BE REVERSED AND VACATED BECAUSE THE APPELLANT WAS DENIED A FAIR OPPORTUNITY TO PRESENT HIS DEFENSE THAT A CONFLICT IN ORDERS DENIED THE APPELLANT NOTICE OF WHICH CONDUCT IS PROHIBITED, AND THEREFORE DENIED HIM AN OPPORTUNITY TO CONFORM HIS ACTIONS TO REGULATIONS. N.J. CONST. (1947) Art. 1, Par. 1; N.J.A.C. 10A:4-2.1; N.J.A.C. 10A:4-3.1(a)2; N.J.A.C. 10A:4-1.1(a)(3); N.J.A.C. 10A:4-1.1(a)(6)

POINT FIVE

THE FINAL ADMINISTRATIVE DECISION MUST BE REVERSED BECAUSE THE DOC FAILED TO PROPERLY IDENTIFY THE DISCIPLINARY ACT ALLEGED DENYING THE PROTECTION OF N.J.A.C. 10A:4-9.6 & -9.16, DENYING THE APPELLANT A FAIR HEARING. N.J. CONST. (1947) Art. 1, Par. 1

We find that petitioner's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Petitioner was provided with all of the due process rights available to an inmate pursuant to Avant v. Clifford, 67 N.J. 496, 522 (1975); N.J.S.A. 52:14B-4. He had the opportunity at the hearing to present all of his arguments, notwithstanding his position on appeal that he was not given a fair opportunity to present his defense.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . . '" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We will accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We find the decision here is supported by substantial credible evidence.

Affirmed.

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A-6369-06T2

September 23, 2008