GARY DAVIS 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NOT FOR PUBLICATION WITHOUT THE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-4076-07T34076-07T3

GARY DAVIS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________

 

Submitted February 4, 2009 - Decided

Before Judges Stern and Lyons.

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

Gary Davis, 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

Gary Davis (Davis), an inmate at Bayside State Prison, appeals from a final decision issued by the New Jersey Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act *.009, "misuse, possession, distribution, sale, or intent to distribute or sell, an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention," in violation of N.J.A.C.

10A:4-4.1(a). Because we find that Davis was afforded all appropriate procedural guarantees and that there is substantial credible evidence in the record to support the DOC's decision, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On March 25, 2008, at approximately 12:45 a.m., corrections officers conducted a search of Davis' one-man cell. During the course of this search, an officer found a cellular telephone and a cellular telephone charger with the charger plugged into a wall outlet located in Davis' cell. Davis was lying on the bed next to the charging cellular telephone when the officer entered Davis' cell to conduct the search. As a result of Davis' possession of the cellular telephone and charger, he was charged with committing prohibited act *.009.

Davis pled not guilty of possession of the cellular telephone and charger, and on April 3, 2008, provided a statement denying that he ever "touched or used a cell phone" in his life, and alleging that the phone was planted and that he was "set up." Davis had requested a polygraph, which was denied. A hearing was conducted on April 7, 2008. The hearing officer granted Davis' request for the assistance of a counsel-substitute. Davis did not testify nor did he produce any witnesses. He relied upon his witness statement and the arguments of his counsel-substitute.

In adjudicating the charge, after reviewing the evidence, the hearing officer stated:

[b]ased upon a tip from a person (or persons) kept anonymous, [inmate's] cell was entered by SCO Gansert at [approximately] 12:45 a.m. on 3/25/08 for a search. Soon upon entering this cell/room[,] the SCO observed [inmate] upon his bed with a cell phone next to him (wall side) [such would also be found to be charging]. This evidence, which is not factually disputed, is sufficient to substantiate this charge. [Inmate] Davis presents no factual defense. There is no evidence of the phone being planted, nor that he was ignorant of its existence. SCO answer[ed] questions during confront[ation] hearing in an honest and straightforward manner [and] made no statements contradictory to the record. [Charge] is substantiated.

The hearing officer recommended sanctions of fifteen days of detention, 365 days of administrative segregation, 365 days' loss of commutation time, thirty days' loss of recreational privileges, permanent loss of contact visits, and disposal/confiscation of the cellular telephone and charger.

On April 9, 2008, Davis administratively appealed the decision of the hearing officer. On April 14, 2008, the DOC upheld the decision of the hearing officer and this appeal ensued.

On appeal, Davis presents the following arguments for our consideration:

POINT I

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED INASMUCH AS APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS AS GUARANTEED BY BOTH NEW JERSEY STATE CONSTITUTION & THE UNITED STATES CONSTITUTION WHEN HEARING OFFICER FAILED TO EXPLAIN WHY HEARING OFFICER FAILED TO INFORM APPELLANT THAT CONFIDENTIAL INFORMANT WAS BEING USED.

POINT II

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED INASMUCH AS APPELLANT WAS DENIED HIS DUE PROCESS RIGHTS AS GUARANTEED BY BOTH NEW JERSEY STATE CONSTITUTION & THE UNITED STATES CONSTITUTION WHEN HEARING OFFICER FAILED TO EXPLAIN WHY HEARING OFFICER FAILED TO FOLLOW STANDARDS SET FORTH IN N.J.A.C. tit. 10A:4-9.15 REGARDING USE OF CONFIDENTIAL INFORMANTS.

We note at the outset that "[c]ourts have a limited role in reviewing a decision of an administrative agency." Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. We must determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 92-93 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)).

We further note that Davis was afforded all of the recognized protections that an inmate facing disciplinary charges is entitled to receive. McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Davis received written notice of the alleged violation; a written statement of the evidence relied on; the reasons for the disciplinary action taken; a right to call witnesses; a right to present evidence; and a right to assistance from a counsel-substitute. Id. at 195.

The essence of Davis' argument is that the DOC did not comply with N.J.A.C. 10A:4-9.15(b) with respect to the confidential informant who advised the prison administration that Davis had a cellular telephone. This information caused the administration to conduct the search of Davis' cell. Davis argues that N.J.A.C. 10A:4-9.15(b)(1)(i)(ii) required the hearing officer to provide Davis with a concise summary demonstrating how the hearing officer concluded that the informant was credible and the information reliable, as well as providing Davis with the informant's statement.

We find that the requirements of N.J.A.C. 10A:4-9.15 are not at issue in this case. The regulation provides that in those instances where the hearing officer's "decision of guilt is based on evidence which includes confidential information," certain information must be set forth on the record and provided to the inmate. In this case, the decision of guilt was not based on evidence provided by a confidential informant, but on evidence adduced from the corrections officers who conducted the search and found the cellular telephone next to Davis, who was lying on his bed. Consequently, we find no violation by the DOC of N.J.A.C. 10A:4-9.15.

Davis also argues that the refusal to perform a polygraph examination was improper. We have recently reviewed this issue and noted that:

N.J.A.C. 10A:3-7.1, Use of polygraph examinations with inmates, reads in applicable part:

(a) A polygraph examination may be requested by the Administrator:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge.

. . .

The code regulation's principal impetus is as an investigative tool of the administrator when serious disciplinary infractions are alleged against an inmate as opposed to an affirmative right granted to the inmate himself.

In Johnson v. New Jersey Department of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997), we determined that an inmate does not have an unqualified right to a polygraph test. Under N.J.A.C. 10A:3-7.1(c), "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." This administrative code section 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. Therefore, we conclude that a prison administrator's determination not to give a prisoner a polygraph examination is discretionary and may be reversed only when that determination is "arbitrary, capricious or unreasonable."

Although no appellate tribunal in this state has directly addressed this issue, we are convinced by an analysis of the authorities below that a prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO'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 [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005).]

In this case, the record does not disclose any inconsistencies with respect to the facts. In addition, there is sufficient corroborating evidence presented to negate any serious questions of credibility. All that is raised is the inmate's denial that the cellular telephone was his. We do not find that the denial of the request for a polygraph impaired the fundamental fairness of this disciplinary proceeding.

Accordingly, because we conclude that the agency's decision is neither arbitrary nor capricious nor unreasonable given the facts presented and that the decision is supported by substantial credible evidence in the record as a whole, we affirm. See Henry, supra, 81 N.J. at 579.

Affirmed.

(continued)

(continued)

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A-4076-07T3

February 25, 2009