TIMOTHY F. CONKLIN 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NOT FOR PUBLICATION WITHOUT THE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-0657-08T30657-08T3

TIMOTHY F. CONKLIN,

Appellant,

V.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Lisa and Reisner.

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

Timothy Conklin, appellant, pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

After an administrative hearing at which he was permitted to confront the witnesses against him, inmate Timothy Conklin was found guilty of prohibited act *.005, threatening another with harm, prohibited act *.306, conduct which disrupts the orderly running of the institution, and prohibited act .256, refusal to obey the order of a staff member. For violating .256 and *.306, he received an aggregate sanction of: fifteen days of detention with credit for time served, ninety days administrative segregation, and sixty days loss of commutation time. He was also referred to the Psychology Department. For the *.005 violation, he was sanctioned with fifteen days of detention, 180 days administrative segregation, and 180 days loss of commutation time, consecutive to the sanctions imposed for the first two charges. Conklin appeals. We affirm in part and reverse in part.

The charges stemmed from an incident on August 14, 2008. During a medical visit with a prison doctor, Dr. Buch, the inmate became upset after the doctor told Conklin that he would no longer prescribe a certain medication for him. According to the doctor, he advised Conklin that the medication was not appropriate to treat his medical condition. Conklin threatened to have seizures and to sue the doctor, but he also refused to leave the doctor's office. The doctor felt threatened and pushed the "duress" button, which summoned several correction officers to remove the inmate from his office.

In reviewing the agency's decision, we are limited to determining whether its findings are supported by substantial credible evidence in the record and whether its conclusions are consistent with applicable law. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Having reviewed the record, we conclude that, with the exception of the *.005 charge, the agency's action meets that standard and must be affirmed.

On this appeal, Conklin contends that the evidence does not support a violation of *.306, conduct which disrupts or interferes with the orderly running of the institution. In support of this argument, he contends that the doctor mistakenly pushed the duress button and that any disruption to the institution was caused only by this mistake. Conklin also argues that there is no proof to support the hearing officer's finding that the doctor felt threatened or intimidated by the inmate's actions.

We conclude that there is sufficient credible evidence in the record to support the findings that Conklin violated *.306 and .256. When the doctor told Conklin that he would not prescribe the medication Conklin wanted, the inmate became "angry and uncooperative" and refused to leave the doctor's office despite the doctor's direction to him to leave. As a result, the doctor, who was alone with the inmate in his office, felt threatened and activated the security buzzer, resulting in an emergency "code 33." In response to a question "did you ever actually feel threatened," the doctor answered, "yes." Whether the doctor knew that the button he was pressing was the emergency button or whether he thought it would only summon the officer stationed outside his office is immaterial here. The inmate's conduct was threatening and intimidating, and resulted in correction officers having to be summoned to remove him from the doctor's office. See Henry, supra, 81 N.J. 579-80.

Finally, Conklin contends that his threat to sue the doctor did not constitute a violation of *.005, (threat to the person or property of another person). The Department of Corrections (DOC) agrees with Conklin on this point and consents to dismiss the charge on remand. Accordingly, with the agency's consent, we reverse the finding of the *.005 violation and remand to the DOC with direction to dismiss the finding that the inmate violated this section and to remove all of the associated sanctions that had been imposed based on this violation.

Affirmed in part, reversed and remanded in part.

 

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A-0657-08T3

 

March 12, 2009