LUTHER SEAY 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NOT FOR PUBLICATION WITHOUT THE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-3161-08T33161-08T3

LUTHER SEAY,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

 
 

Submitted December 9, 2009 - Decided

Before Judges Lyons and J.N. Harris.

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

Luther Seay, 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

Luther Seay (Seay) is an inmate in the State's correctional system, who is currently incarcerated at South Woods State Prison (SWSP) in Bridgeton, New Jersey. Seay is presently serving a twenty-eight year sentence, with a minimum mandatory term of thirteen years, which was imposed after his conviction of aggravated manslaughter, N.J.S.A. 2C:11-4(a).

Seay appeals from a final determination of the Department of Corrections (DOC), dated February 13, 2009, which imposed sanctions upon him for committing prohibited act *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, N.J.A.C. 10A:4-4.1(a), and prohibited act .501, failing to stand count, N.J.A.C. 10A:4-4.1(a). We affirm.

On February 11, 2009, Senior Corrections Officer (SCO) Slusarczyk was conducting an inmate count. As part of that routine procedure, SCO Slusarczyk ordered Seay to lock in his cell. Seay refused and reportedly told SCO Slusarczyk, "I am not locking in tonight with my new celly," referring to his cellmate. A supervisor, Sergeant Sparacio, was called to the scene and ordered Seay for a second time to lock in his cell for the taking of an inmate count. Seay stated to Sergeant Sparacio, "I'm not locking in with him." Seay's conduct resulted in a delay of the inmate count for approximately fifteen minutes.

Seay was charged with prohibited act .501 (failing to stand count) for his refusal to lock in his cell for the taking of an inmate count, and with prohibited act *.306 (conduct which disrupts or interferes with the security or orderly running of the correctional facility) for the resultant delay in the completion of the inmate count.

Seay was served with the charges on February 12, 2009. A hearing that considered both of the alleged prohibited acts was conducted on February 13, 2009 by DOC Disciplinary Hearing Officer James McGovern. Seay entered pleas of not guilty to both charges and utilized the assistance of a counsel substitute.

McGovern considered several documentary items of evidence, including disciplinary reports and the inmate's personal statement. The hearing officer found Seay guilty of both prohibited acts, and imposed a combined sanction of fifteen days detention, ninety days administrative segregation, and thirty days loss of recreational privileges.

Seay filed an immediate administrative appeal of the hearing officer's determinations. On February 13, 2009, Assistant Superintendent John Powell upheld the hearing officer's decision, explaining:

When given a direct order to lock in your cell during count, this is not an option. By failing to stand count, your actions violated the safety [and] security of this institution. The sanction imposed was proportionate to the offense.

Remaining aggrieved and unsatisfied by the DOC's final determination, Seay appealed.

On appeal, Seay offers numerous arguments for our deliberation. Among them, he asserts that he suffered an abuse of authority; he was subjected to cruel and unusual punishment; he was deprived of an Inmate Handbook; his due process rights were violated by the conduct of the counsel substitute; he was rushed into the preparation of a defense; he was denied the opportunity to request a polygraph examination because he was unaware of his right to ask for one; he was deprived of a psychiatric examination; and he never had a chance to discover other potentially relevant information about his case. Seay further claims that the corrections officers who submitted disciplinary reports set him up and falsified their reports in "copy-cat" fashion; that the staff at SWSP failed to conduct a thorough investigation of the case; and that he declined confrontation of the corrections officers on the advice of his counsel substitute who advised him that the SWSP staff would lie.

After carefully considering the record and briefs, we are satisfied that all of Seay's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). Substantial credible evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956).

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 context, prisoners do still have certain procedural due process rights, including a limited right to call witnesses, 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 530.

Based upon our review of the record, we are satisfied that Seay was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33; that the hearing officer's decision was based on substantial evidence that Seay committed the prohibited acts; and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005); N.J.A.C. 10A:4-9.15(a).

We see no basis on which to reach a conclusion that the sanctions imposed were contrary to what were found by the DOC. "Prisons are dangerous places," and prison administrators must be given latitude to control their "volatile environment[s]." Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.), certif. denied, 162 N.J. 196 (1999). Although the fifteen minute delay in completing the inmate count might not immediately appear to have a significant impact upon prison order and discipline, even de minimis breaches of protocol deserve keen observation and a swift response by those in charge. We cannot say that Seay was deprived of any due process rights or was treated unlike others similarly situated.

The record supports the view that Seay was afforded all the process he was due. We have no basis to disturb the DOC's determination.

Affirmed.

 

"Prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).

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A-3161-08T3

December 23, 2009