WILFREDO RUIZ 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NOT FOR PUBLICATION WITHOUT THE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-0267-08T10267-08T1

WILFREDO RUIZ,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________

 

Submitted October 6, 2009 - Decided

Before Judges Wefing and Grall.

On appeal from the New Jersey Department

of Corrections.

Wilfredo Ruiz, appellant pro se.

Anne Milgram, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

Wilfredo Ruiz, presently an inmate at East Jersey State Prison in Rahway, appeals from an adjudication of a disciplinary infraction for prohibited act *.005, threatening another with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a). Ruiz received a sanction consisting of 15 days' detention, 300 days' administrative segregation and 300 days' loss of commutation time. The prison's Assistant Superintendent, Paul Wagner, denied his administrative appeal, and Ruiz now appeals from that final agency decision of the Department of Corrections (DOC). Because the determination is "supported by sufficient credible evidence on the record as a whole" and not arbitrary or capricious, we affirm. R. 2:11-3(e)(1)(D).

On the morning of August 14, 2008, Ruiz went to the prison infirmary but had to wait to see a doctor. According to Dr. Shah's report of the incident, Ruiz "appeared angry" when he entered the examining room. He "slammed the pen and stated 'Ridiculous. I had to wait [three hours].'" While the doctor examined him, Ruiz became "louder and threatening." Ruiz then jumped and "slammed his hand on [the] desk . . . . Officer Durand came in[to] the room and backed [the] inmate up." Dr. Shah "was fearful and felt threatened for [her] safety."

Officer Durand's written report does not indicate the point at which he entered the examination room. His summary includes this information: During a scheduled medical appointment, Ruiz became agitated and loud and slammed his I.D. on the doctor's desk. Ruiz "again moved towards Dr. Shah in an aggressive manner as she was sitting at her desk. At this point it was evident [he] intended to cause harm to her." Ruiz "had to be restrained (physically)." Consequently, Durand "handcuffed" him and gave Dr. Shah an opportunity to leave the room.

Sergeant Grablow was called and came to the infirmary with another officer. According to Officer Small's report, he called Grablow. Small's report, which does not indicate whether he observed the incident or was told about it, notes that Ruiz slammed his I.D. on Dr. Shah's desk, jumped off the examination table, and walked toward the doctor; Durand stepped between the inmate and the doctor. Grablow's report suggests that Small was not an eyewitness. His list of members of the prison staff involved does not include Small.

Grablow gave the following summary of what he learned, without identifying the source of the information it includes.

[Ruiz] became loud and disruptive while being seen by Dr. Shah in the infirmary exam room. As the Dr. was examining him he became extremely agitated, began yelling and jumped off of the exam table toward the Doctor. At this time the Dr. exited the exam room in fear for her safety and called for the officer to assist. SCO Durand immediately restrained the inmate due to his assaultive behavior and for the Dr.'s safety. Upon my arrival the inmate was escorted to detention, examined by CMS and mental health and placed in detention PHD status with the [charge of *.005 Threat on CMS staff.]

On August 15 and August 16, 2008, Ruiz wrote to the prison Administrator, Charles Albino, and provided his account. The second letter includes a request for a polygraph: "I am willing to take a lie detector test and pay for it if I must to prove to the event described." In both letters, Ruiz acknowledges disagreeing with the doctor about her prescription of two half-dose pills of his thyroid medication rather than one full-dose pill, which meant that he was charged twice as many co-pays. He also acknowledges mentioning to her a complaint he had filed about medical services, but he denies threatening the doctor.

The disciplinary hearing was conducted on August 18, 2008. Albino did not respond to Ruiz's request for a polygraph, and the hearing officer who had Ruiz's letters did not address that request. Ruiz, who had the benefit of counsel substitute, pled not guilty and presented copies of the letters he sent to Albino as his written statements in support of his defense of denial. According to the hearing officer's report, which was signed by counsel substitute, Ruiz did not ask for the opportunity to confront or cross-examine any witness.

Acknowledging Ruiz's reliance on discrepancies between the various written statements of the officers and Dr. Shah and referencing Ruiz's decision to waive his right to confront the authors of those reports, the hearing officer concluded "that [Ruiz] approached the doctor in a threatening manner" and "presented an immediate threat to the doctor." The hearing officer selected a sanction he deemed appropriate "to deter [Ruiz] from threatening others."

Ruiz filed his timely administrative appeal on August 19, 2008. Noting a "discrepancy in the statements of all involved" and alleging that the "event [had been] totally blown out of proportion," Ruiz reiterated his request that "a lie detector test be administered [to him to] even out the playing field."

Wagner, as Albino's "designate," gave a one-sentence reason for upholding the hearing officer's decision and presumably for denying Ruiz's request for a polygraph. He wrote: "Witness statements corroborate."

Our review of decisions in prison disciplinary proceedings is circumscribed by principles that require us to defer to determinations that are supported by sufficient credible evidence and are neither arbitrary nor capricious. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005); Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005).

With that standard in mind, we consider whether the evidence was adequate to establish a violation of N.J.A.C. 10A:4-4.1(a) based upon threatening bodily harm. In Jacobs v. Stephens, 139 N.J. 212, 222-23, the Supreme Court addressed the evidence required to establish that an inmate has conveyed a threat within the meaning of *.005. The Court reasoned that the determination requires "an objective analysis of whether" the words and conduct "conveys a basis for fear." Ibid. In Jacobs, the various witnesses to the incident described the threatening words the inmate "yelled" at the officer and his "taunt[s]." Id. at 223. Although there was additional evidence, the Court observed that standing alone, the inmate's cursing demand for an officer to get "out of [his] face" made "during a 'heated' discussion, . . . would be sufficient to justify the conclusion that a threat had been made." Id. at 223-24. The Court held that "[w]hen words of an inmate are of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer, then that is a threat of bodily harm" within the meaning of *.005. Id. at 224.

Although the record in this case does not include a description of what Ruiz said when he became "louder," the statements of Dr. Shah and Durand corroborated one another with respect to an essential fact that is adequate to support a finding that his actions reasonably conveyed a menace of physical harm to Dr. Shah. Ruiz spoke in a loud tone, approached the doctor and when an officer attempted to intervene he was required to use physical restraint. That evidence alone is adequate to support the agency's determination and warrant affirmance of the finding of guilt and the sanction imposed. We recognize that the statement of findings and reasons provided by the hearing officer and Wagner do not include a very satisfactory statement of the facts that they deemed adequate to support a finding or guilt, but we have concluded that the explanations are "sufficiently specific under the circumstances of [this] case to enable" us to determine that the portions of the record upon which we rely Dr. Shah's statement about Ruiz's actions, Durand's intervention and Durand's description of his perception of the need to impose physical restraint are sufficiently corroborating to provide "a reasonable basis for" a finding of guilt. Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 122 (App. Div. 2002) (quoting N.J. Bell Tel. Co. v. Commc'ns Workers of Am., 5 N.J. 354 (1950)).

We turn to consider Ruiz's objections to the denial of his request for a polygraph. In addressing this issue, we assume that Wagner's reference to corroborating statements is intended to explain that denial and his reasons for affirming the hearing officer's decision. On the facts of this case, we cannot conclude the denial of a polygraph was arbitrary or unreasonable.

Regulations promulgated by the DOC authorize polygraphs in connection with a disciplinary proceeding at the discretion of the prison administrator or the administrator's designee. N.J.A.C. 10A:3-7.1; see Ramirez, supra, 382 N.J. Super. at 23. The regulations expressly allow this test "[w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." N.J.A.C. 10A:3-7.1(a)(1). And, they permit an administrator to request a polygraph relevant to resolve an inmate's administrative appeal from a hearing officer's decision imposing a sanction for a disciplinary infraction. N.J.A.C. 10A:4-11.4(a)-(d). Moreover, approval of requests made by inmates when appropriate is apparently contemplated by N.J.A.C. 10A:3-7.1(c), which notes that "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request" and implies authority to approve a request when there is good cause.

In any event, the ultimate decision on the need for a polygraph is left to the discretion of the administrator. Ramirez, supra, 382 N.J. Super. at 23-24; Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). In exercising that discretion, the administrator should consider whether a denial "will impair the fundamental fairness of the disciplinary proceeding." Ramirez, supra, 382 N.J. Super. at 24. This court has observed that "fundamental fairness will not be [a]ffected [by a denial] when there is sufficient corroborating evidence presented to negate any serious question of credibility." Ibid. Similarly, it is apparent that when an inmate can testify and has an opportunity to call, question and cross-examine adverse witnesses, a polygraph is not essential to fundamental fairness because these more traditional and powerful means of acquiring the truth are available. Cf. Engel v. N.J. Dep't of Corr., 270 N.J. Super. 176, 179 (App. Div. 1994) (reversing a disciplinary sanction based upon denial of a polygraph in a case involving a plot to escape supported by nothing other than investigative reports repeating hearsay statements of a confidential informant).

While we disapprove of Wagner's disposition of Ruiz's request for a polygraph with a cryptic, one-sentence after-the-fact response, in the particular circumstances of this case we cannot conclude that his denial was arbitrary or unreasonable. Here, the only limitation on the right of cross-examination was Ruiz's decision to refrain from requesting an opportunity to confront the adverse witnesses. Furthermore, because the statements of Durand and Dr. Shah corroborate Durand's inability to defuse the situation without resort to physical restraint there are no serious questions of credibility that could not have been addressed effectively through cross-examination. Thus, a polygraph of Ruiz was not essential to the fairness of the proceeding.

Ruiz's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

For the purpose of providing some guidance on the preparation of written reports in the future, we note that it

is important for an author to indicate what the author saw and heard the inmate do and say and what the author was told by others. Hearsay information does not have the same value as information based upon direct observation, and it is difficult for a hearing officer, a prison administrator or a reviewing court to evaluate the significance of a report that does not indicate how the information included was acquired.

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A-0267-08T1

November 12, 2009