ANGEL LOPEZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0728-07T2A-0728-07T2

ANGEL LOPEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________

 

Submitted January 5, 2009 - Decided:

Before Judges Sabatino and Simonelli.

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

Angel Lopez, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Angel Lopez appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing two counts of prohibited acts *.002, assaulting any person, in violation of N.J.A.C. 10A:4-4.1(a). On appeal, Lopez contends that he was improperly denied a polygraph examination. We affirm.

At all times relevant to this appeal, Lopez was incarcerated at Southern State Correctional Facility ("SSCF"). He is serving a five-year sentence, with a mandatory-minimum term of eighteen months, for convictions of unlawful possession of a weapon and a parole violation.

On June 8, 2007, Senior Corrections Officer Sutherland was clearing inmates from Unit 3L of B-Wing in order to perform a routine search of the unit. While Sutherland was attempting to perform this duty, Lopez questioned him about why he had to leave the unit, which prompted Sutherland's order to Lopez to leave. Lopez then stated to Sutherland, "keep treating me this way and I'm gonna fuck one of you up." Sutherland then ordered Lopez to turn and face the wall. Lopez initially complied but then shoved himself off the wall and into Sutherland, striking the officer in the left eye and knocking him into some lockers.

Senior Corrections Officer Makos, who was sitting at a nearby desk, heard the commotion and saw Sutherland struggling with Lopez. Makos went to assist Sutherland. Upon his arrival at the scene, Lopez threw a punch at Makos, striking him in the shoulder. Makos then grabbed Lopez and attempted to restrain him, at which point Lopez shoved Makos into the corner of the lockers. Makos and Lopez then fell to the floor. Makos and Sutherland restrained Lopez on the floor until additional officers arrived.

As a result of the incident, Makos injured his right shoulder, which required the administration of an ice pack; Sutherland sustained a bruise to his left eye and a scratch to his right shoulder. Lopez was charged with committing two counts of prohibited act *.002.

On June 9, 2007, Sergeant Keen served the charges on Lopez and conducted an investigation. Lopez pled not guilty to the charges and indicated that he would make a statement at the hearing. Lopez requested and was granted a counsel substitute to represent him at the hearing. He was also offered but declined the opportunity to request witness statements. Keen noted Lopez's prior assault history and determined that his actions towards officers were deliberate and intentionally injurious. As such, Keen referred the charges for a hearing.

The first hearing was scheduled for June 11, 2007, but was postponed in order to resolve Lopez's request for a polygraph. A second hearing was scheduled for June 13, 2007, but was postponed because a decision regarding the polygraph was still pending. The hearing continued on June 15, 2007, without Lopez having taken a polygraph. Lopez was offered the opportunity to call witnesses on his own behalf and to confront and cross-examine adverse witnesses. He declined both offers. Instead, he pled guilty to both charges and argued for leniency in the imposition of disciplinary sanctions.

In adjudicating the *.002 charge filed by Sutherland, Hearing Officer Maniscalco stated:

Inmate pleads guilty requesting leniency. [Hearing Officer] relies on report from [] Sutherland stating that while conducting routine searches in the 3L housing unit of SSCF[,] inmate Lopez had [m]ade a threatening [statement] toward the officer. As the [inmate] was ordered to turn around[,] the report states that the inmate pushed himself from the wall and struck the [officer] in the eye and push[ed] him into the unit lockers. [Hearing Officer] notes initially the inmate requested a polygraph and that request was denied by Ms. Ricci. Inmate later pleads guilty to [the] charge. [Hearing Officer] also relies on [Exhibit A]-9[,] medical [evaluation] of officer indicating that he had sustained injuries consistent with a [physical] altercation. [Hearing Officer] also relies on [Exhibit A]-10[,] [] Makos providing an eyewitness report [in] support of the charge. Based on the inmate's plea [of] guilt[y] as well as the documentary evidence presented[,] there is substantial evidence to support the charge.

After finding Lopez guilty of the *.002 charge filed by Sutherland, Maniscalco recommended sanctions of 15 days' detention, with credit for time served ("CTS"), 365 days' loss of commutation time ("LOCT") and 365 days' administrative segregation.

In adjudicating the *.002 charged filed by Makos, Maniscalco stated:

Inmate pleads guilty requesting leniency. [Hearing Officer] also notes inmate requested a polygraph initially, however, that request was denied by [] Bartkowski. [Hearing Officer] relies on report from [] Makos stating that after observing a physical altercation taking place on the tier of 3L of SSCF he responded to the area to render assistance. Upon arriving at the scene the report states that the inmate punched him in the shoulder and continued to resist hi[m] by pushing the officer into the foot lockers on the tier. [Hearing Officer] also notes [Exhibit A]-2[,] and [Exhibit A]-9[,] submitted in support of the charge. [Hearing Officer] notes [that A]-9 indicates that the officer had sustained injuries consistent with that of a physical altercation. Based on the inmate's plea [of guilty] as well as the evidence presented[,] there is substantial evidence presented[,] to support the charge.

After finding Lopez guilty of the *.002 charge filed by Makos, Maniscalco recommended sanctions of 15 days' detention, 365 days' LOCT, and 365 days' administrative segregation, consecutive to the sanctions imposed on the other *.002 charge.

On June 17, 2007, Lopez administratively appealed Maniscalco's decision to the prison Administrator. On June 28, 2007, Bartkowski upheld the guilty findings and the sanctions imposed. This appeal followed.

A prison disciplinary proceeding "'is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply.'" Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). However, in such proceedings prisoners have certain procedural due process rights, including a limited right to call witnesses and present documentary evidence and to confront and cross-examine witnesses where necessary "for an adequate presentation of the evidence, particularly when serious issues of credibility are involved[.]" Id. at 529-30.

An inmate's due process rights do not automatically include a right to a polygraph examination. See Johnson v. New Jersey Dep't of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997) (an inmate's mere request for a polygraph examination shall not be sufficient cause, in and of itself, for granting the request); Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005) (N.J.A.C. 10A:3-7.1 "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him.") "[A]n inmate's right to a polygraph is conditional and the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez, supra, 382 N.J. Super. at 20. Regarding the issue of fundamental fairness, the Ramirez court held that:

Impairment [of fundamental fairness] may be evidenced by inconsistencies in the [officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24].

Based upon our review of the record, we are satisfied that Lopez was not entitled to a polygraph. The evidence against him was unrefuted and Lopez presented no evidence challenging the credibility of that evidence. Accordingly, the denial of Lopez's request for a polygraph did not compromise the fundamental fairness of the disciplinary process. We are also satisfied that Lopez was afforded all due process protections required by Avant, supra, 76 N.J. at 525-33, that Maniscalco's decision was based on substantial evidence that Lopez committed prohibited acts, and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez, supra, 382 N.J. Super. at 23 (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10a:4-9.15(a).

Affirmed.

The polygraph request was not considered by Ms. Ricci, who is the Administrator of New Jersey State Prison, where Lopez is currently incarcerated. Rather, Greg Bartkowski, the Associate Administrator at SSCF, considered the polygraph request.

(continued)

(continued)

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A-0728-07T2

 

June 8, 2009