ALLEN TALLY 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NOT FOR PUBLICATION WITHOUT THE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-2441-07T32441-07T3

ALLEN TALLY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

 

Submitted February 3, 2009 - Decided

Before Judges Gilroy and Chambers.

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

Allen Tally, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Keith S. Massey, Jr., Deputy Attorney General, on the brief).

PER CURIAM

Appellant Allen Tally appeals from the final decision of the New Jersey Department of Corrections (DOC) finding him guilty of committing three prohibited acts in violation of N.J.A.C. 10A:4-4.1(a): 1) *.708 (refusal to submit to a search); 2) *.259 (failure to comply with an order to submit a specimen for prohibited substance testing); and 3) .256 (refusing to obey an order of any staff member). We affirm.

On December 23, 2007, Senior Corrections Officer (SCO) Rieger observed appellant while in the East Jersey State Prison visiting hall. Rieger observed appellant un-tuck his shirt from his pants and place a white napkin down the back of the pants. Suspecting appellant may have unlawfully received a controlled dangerous substance (CDS), appellant was escorted from the visiting hall, strip searched, and directed to provide a urine sample for testing. No drugs were found during the search, nor detected in the urine sample.

Following the urine test, the prison's medical staff examined appellant and placed him in a "dry cell," instructing him not to use the toilet, but to defecate in a Styrofoam tray so that his feces could be examined for CDS. Contrary to the order, appellant used the toilet to defecate, soiling himself in the process. After observing feces on appellant's hands, the prison officers believed that appellant had attempted to search his feces for CDS. Appellant was escorted to the shower to clean himself. While in the shower, appellant's cell was searched, but no contraband was found. Following these events, appellant was charged with committing prohibited acts .256 and *.708.

On the following day, appellant was provided water to drink and was directed to provide a second urine sample. After two hours, appellant failed to comply. Accordingly, appellant was charged with committing prohibited act *.259.

Although the initial hearing on appellant's three charges was scheduled to begin before Hearing Officer Kathy Ireland on December 26, 2007, it was adjourned because appellant was on close watch status. As such, Ireland did not hear any testimony in the matter.

On January 7, 2008, the disciplinary hearing was conducted before Hearing Officer Zane Maguire. Appellant was provided with counsel substitute and was offered the opportunity to view the surveillance video of him in the visiting hall. Following the hearing, Maguire determined the officers' testimony credible, and based on a review of the videotape, found that there was a reasonable basis for placing appellant in a dry cell and ordering him to use the Styrofoam tray, rather than the toilet.

On the .256 charge, Maguire sanctioned appellant to fifteen days of detention with credit for time served; sixty days loss of commutation time; and ninety days of administrative segregation. Maguire also recommended that appellant be transferred to a more secure institution.

On the *.708 charge, appellant was sanctioned to fifteen days of detention; 300 days loss of commutation time; 300 days of administrative segregation. Also on this charge, appellant was again referred for transfer to a more secure institution. On the *.259 charge, appellant was sanctioned to 365 days loss of commutation time; 365 days of administrative segregation; permanent loss of contact visits; and 180 days of urine monitoring and drug programming. All sanctions were to run consecutive to each other.

On January 11, 2008, appellant appealed his disciplinary decision requesting a modification of the sanctions. On January 14, 2008, Assistant Superintendent Amadu Jalloh affirmed the hearing officer's decision, concluding that the sanctions imposed were proportionate to the offenses on which appellant was adjudicated guilty.

On appeal, appellant argues that he was denied due process because: 1) although his hearing was conducted by two officers, the second officer who adjudicated him guilty and imposed the sanctions did not possess evidence that was provided to the first hearing officer; and 2) the record does not support the adjudication of guilty on the charge of failing to provide a urine sample, *.259.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

We have considered each of appellant's arguments in light of the record and applicable law. We are satisfied that the arguments are without merit. R. 2:11-3(e)(1)(E). Nevertheless, we add the following comments.

Prison inmates are permitted only limited procedural due process in disciplinary proceedings. Those rights include written notice of the charges; presentation of the matter to an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a written statement of the evidence relied upon by the hearing officer and the reasons for the sanctions imposed; and when necessary, the assistance of counsel substitute. Avant v. Clifford, 67 N.J. 496, 522-30 (1975). We conclude that appellant received all the process he is due under the law. Ibid. He received proper notice of the charges prior to the hearing. The hearing was timely, and it was conducted by a member of the agency's hearing officer's staff. Counsel substitute was assigned, and appellant was offered the opportunity to confront and cross-examine witnesses and call witnesses on his own behalf.

Citing Ratti v. New Jersey Department of Corrections, 391 N.J. Super. 45 (App. Div. 2007), appellant argues that his due process rights were violated because the second hearing officer, who adjudicated him guilty and imposed the sanctions, did not possess evidence provided to the first hearing officer. We find appellant's reliance on Ratti misplaced.

In Ratti, we held that when the evidentiary phase of a disciplinary hearing commences and is then adjourned, it must be considered by the same hearing officer or, if a new hearing officer is assigned to the matter, the evidentiary phase must commence anew. Id. at 48. Here, contrary to appellant's argument, the first hearing officer, Kathy Ireland, did not commence the evidentiary phase of the hearing. No testimony was presented, nor did Ireland conduct confrontation of any witnesses. Rather, the record indicates that it was Hearing Officer Zane Maguire who considered all evidence, and conducted confrontation of witnesses. That Maguire had considered the evidence in the matter was acknowledged by appellant's and counsel substitute's signatures immediately below Line 15 of Maguire's adjudication report.

Appellant argues next that he was improperly denied the opportunity to submit to a polygraph examination to contest the statements of the correctional officers. Appellant contends that he made the polygraph request to Ireland, but that she neither documented the request, nor forwarded the request onto Maguire. This argument is meritless.

"It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)). Appellant did not raise this issue in his administrative appeal. Because the issue does not pertain to the jurisdiction of the administrative hearing or to a matter of great public interest, we will not consider the merits of the argument.

Defendant argues next that the hearing officer's determination finding him guilty of committing prohibited act .256 was not supported by credible evidence in the record. We disagree.

On December 24, 2007, Sergeant Barnes directed appellant to provide a second urine sample. Subsequent to the directive, appellant signed a form stating the consequences of failing to comply with the order. Following a two-hour waiting period, appellant did not provide the urine sample. Appellant contends that he did not refuse to provide a urine sample, only that he was unable to do so because he had not been provided sufficient water by the attending correction officers.

Contrary to appellant's contention, the record discloses that SCO Johns provided appellant sixteen ounces of water and SCO Latorre provided an additional eight ounces of water. The hearing officer determined that appellant "was given an adequate supply of water," as per the prison policy governing urine testing: "[n]o more than an 8 [ounce] cup of water every 30 minutes, but not to exceed a maximum of 24 [ounces] of water." Defendant's failure to provide a urine sample within the two-hour period from the time of the initial directive constitutes a failure to comply with the order to submit a specimen sample. N.J.A.C. 10A:3-5.11(i).

Lastly, appellant argues at the end of Point I of his brief that Maguire failed to consider that the .256 charge and .708 charge that occurred on December 23, 2007, are duplicative. That is, that the two charges are based "on the same elements, same time, same place [and] same proofs." We reject the argument. Procedurally, appellant's contention was not properly raised in a separate point heading as required by Rule 2:6-2(a)(5). The DOC has a right to know precisely what legal arguments are being made against it and should not have to respond to claims not properly raised in accordance with the rules. Dougherty v. N.J. State Parole Bd., 325 N.J. Super. 549, 553 (App. Div. 1999), certif. denied, 163 N.J. 77 (2000). Substantively, the charges are not based on the same evidence, although they did occur the same time. The .256 charge was based on appellant's failure to comply with SCO Loteck's order to defecate in the disposable tray after having been placed into a dry cell. The *.708 charge was based on evidence that appellant had tampered with his own feces, thereby interfering with the search. The sanctions imposed on each of the charges are authorized by N.J.A.C. 10A:4-5.1.

Affirmed.

(continued)

(continued)

10

A-2441-07T3

March 10, 2009