RICHARD SIACA v. 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NOT FOR PUBLICATION WITHOUT THE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-4787-07T24787-07T2

RICHARD SIACA,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

______________________________________

 

Submitted March 23, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

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

Richard Siaca, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Richard Siaca (Siaca), an inmate currently confined at New Jersey State Prison (NJSP), appeals a final determination of the Department of Corrections (DOC) finding him guilty of a disciplinary infraction arising out of his possession of a cellular phone. We affirm.

In November 2007, a confidential informant alerted prison officials that Siaca and another inmate possessed and utilized cellular phones that had been confiscated from other inmates. Further investigation resulted in the subpoena of telephone records for the two phones. The numbers dialed from the phone allegedly used by Siaca coincided with telephone numbers identified on Siaca's prison phone number list. Prison officials confronted Siaca, who denied any wrongdoing and explained that because the phone in question had been confiscated from an inmate who had done legal work for him, that may explain the presence of phone numbers from his family in the records.

On February 7, 2008, Siaca was served a notice charging him with disciplinary infraction *.009, misuse or possession of electronic equipment not authorized for use or retention by an inmate such as, but not limited to, a cellular telephone(s), two-way radio(s), other communication device(s) and/or computer(s) and/or related device(s) and peripheral(s). N.J.A.C. 10A:4-4.1. He pled not guilty to the charge and was granted the assistance of a counsel substitute.

Following a hearing, the hearing officer found Siaca guilty. He concluded:

Based on the evidence presented, the report from [the investigator], the information from CI #07:005.02, the detailed phone records and the review of inmate Siaca's IPIN[] records[,] it is reasonable to conclude that inmate Siaca had possessed the cell phone (#858-8219) and used that phone to call family members while confined to NJSP.

Therefore, there is substantial evidence to support that charge.

The hearing officer imposed a fifteen-day detention with credit for time served, 365 days of administrative segregation, 365 days of loss of commutation time, and a one-year loss of phone privileges. Additionally, the hearing officer referred the matter to the classification committee for consideration of permanent loss of contact visits.

Siaca filed an administrative appeal. In his appeal, he argued that he was never actually found in possession of the cell phone in question, his due process rights were violated because he was placed in temporary detention for two months before the investigation was completed, and his sanction should be reduced "because he only misused the cell-phone, he did not get caught with any phone in his possession." The decision of the hearing officer was upheld and the present appeal followed.

On appeal, Siaca raises the following points:

POINT I

INMATE SIACA WAS DENIED HIS FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS BY THE ADMINISTRATOR HERE AT NEW JERSEY STATE PRISON BY PLACING HIM ON TEMPORARY CLOSE CUSTODY ("TCC") BY USING THE CRITERIA FOR PRE[-]HEARING DETENTION.

POINT II

APPELLANT CONTENDS THAT THE HEARING OFFICER ERRED IN FINDING HIM GUILTY OF POSSESSION OF A CELL[]PHONE CONTRARY TO THE RECORD WHICH DOES NOT REFLECT THAT APPELLANT WAS IN POSSESSION OF A PHONE.

After carefully reviewing the record, we are satisfied that Siaca's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). We add only the following.

N.J.A.C. 10A:4-9.89(c) permits postponement of disciplinary proceedings for inmates in pre-hearing detention if "there are exceptional circumstances, unavoidable delays or reasonable postponements." N.J.A.C. 10A:4-9.8(c). The postponements were necessitated by the need to conduct further investigation that specifically required securing subscriber information and call detail records. The investigation not only implicated Siaca but another inmate and a prison employee. Because there was reasonable suspicion that Siaca was involved in illegal cellular phone use, his pre-hearing detention during the course of the ongoing investigation is sustainable. See N.J.A.C. 10A:5-7.1(b) (permitting placement of an inmate in temporary close custody status when there is reasonable suspicion that an inmate has committed an asterisked offense).

Further, it is also well-settled that an inmate does not have a liberty interest in remaining free from administrative segregation, which may include pre-hearing detention. See Jenkins v. Fauver, 108 N.J. 239, 250 (1987) (quoting Hewitt v. Helms, 459 U.S. 460, 468, 103 S. Ct. 864, 869, 74 L. Ed. 2d 675, 686 (1983) (stating that administrative segregation is the "'sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration'"). We are satisfied there is substantial credible evidence in the record demonstrating that the hearing postponements were reasonably necessary and Siaca's continued placement in TCC during the pendency of the investigation did not violate his due process rights.

Turning to Siaca's claim that there was no basis for the hearing officer to find him guilty of the charge because he was not found in actual possession of a cellular phone, N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry, supra, 81 N.J. at 579-80 (1980).

Here, there is no dispute that the confiscated cellular phone had been used to call numbers linked to Siaca's family. When questioned, Siaca denied giving his personal phone numbers to any other inmate. Thus, the hearing officer's finding that based upon the evidence presented, it "is reasonable to conclude that inmate Siaca possessed the cell phone (#858-8219) and used that phone to call family members while confined to NJSP[,]" is supported by substantial credible evidence in the record.

 
Affirmed.

Individual Personal Identification Number.

(continued)

(continued)

6

A-4787-07T2

May 4, 2009