DENNIS GALAN v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5287-07T15287-07T1

DENNIS GALAN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________

 

Submitted March 18, 2009 - Decided

Before Judges A. A. Rodr guez and Ashrafi.

On appeal from a Final Agency Decision of

the Department of Corrections.

Dennis Galan, appellant pro se.

Anne Milgram, Attorney General, attorney for

respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; John P. Cardwell,

Deputy Attorney General, on the brief).

PER CURIAM

Inmate Dennis Galan appeals disciplinary sanctions imposed upon him for possession of a cell phone while in custody at Northern State Prison. We affirm.

On May 21, 2008, an officer conducting a routine search found a cell phone inside a green and white cooler near the area of Galan's bed. Written on the cooler was Galan's name. The officer immediately reported the discovery to his supervising sergeant. The next day, Galan received written notice of an administrative charge for possession of an unauthorized electronic device. Disciplinary proceedings before a hearing officer began on May 23, 2008. Galan pleaded not guilty and requested the assistance of counsel substitute and the right to confront the officer who had found the cell phone. The hearing was postponed four times during the next week until that officer became available for questioning.

On June 4, 2008, the hearing officer reviewed the report of the officer regarding discovery of the cell phone, black and white photocopy pictures of the cooler and cell phone, and the reports of other officers regarding notification of Galan about the charge and his transfer to detention. Galan and his counsel substitute were given an opportunity to testify or call witnesses. Galan did not call any witnesses, but he denied that he was guilty, and his counsel substitute stated that Galan's cooler was blue and white, not green and white. The officer who found the cell phone was examined by the hearing officer through written questions provided by Galan.

The hearing officer indicated in writing that he found the officer's answers credible and that he relied on the reports and other listed evidence in finding Galan guilty. He recommended the following sanctions: fifteen days detention with credit for time served, and 365 days of administrative segregation, loss of commutation credits, and loss of telephone privileges, stating further that the charge of possession of a cell phone was a serious, security related infraction.

Galan filed an administrative appeal, submitting a written argument that included factual challenges to the credibility of the evidence against him and requesting for the first time that the logs of calls from the cell phone be examined. Several days later, the Assistant Superintendent of the prison issued a written decision upholding the finding of guilt and imposing the recommended sanctions. Galan filed a notice of appeal to this court.

Galan contends that his due process rights were violated because polygraph examinations of him and the accusing officer were not ordered, he was not permitted to cross-examine the officer, and the documents provided by the prison are illegible. We have reviewed the briefs and record of the disciplinary proceedings and conclude that these contentions have no merit.

In Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-79, 41 L. Ed. 2d 935, 955-56 (1974), the United States Supreme Court held that prison inmates must have the benefit of certain minimal due process protections when administrative sanctions are imposed for violation of prison rules. These protections include advance written notice of the charge, a written statement of the evidence relied upon and the reasons for the sanctions imposed, and a limited right to call witnesses and present documentary evidence. Ibid. Federal constitutional rights of prisoners do not include the right to counsel or to cross-examine witnesses. Id. at 567-70, 94 S. Ct. at 2980-81, 41 L. Ed. 2d at 957-58.

In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Supreme Court of New Jersey noted that a prison disciplinary proceeding is not a criminal prosecution and does not require the same due process protections as in criminal courts. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484, 499 (1972). Nevertheless, the Court expanded the due process rights of New Jersey's inmates beyond the minimal federal constitutional rights required by Wolff. The Court held that due process rights are adequately protected by requiring: (1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, which may be a superior officer from the central prison staff, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant v. Clifford, supra, 67 N.J. at 525-39. Disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.

A polygraph examination is not required simply because the inmate requests one. See Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 20, 23 (App. Div. 2005); Johnson v. N.J. Dept. of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997); N.J.A.C. 10A:3-7.1(c). Even if Galan had requested a polygraph at the time of the hearing, which he did not, denial of the request would not have been arbitrary, capricious, or unreasonable in the circumstances of this case. See Ramirez, supra, 382 N.J. Super. at 23-24.

As to the right of confrontation, Galan provided questions in writing to the hearing officer, who then posed those questions to the officer-witness. The officer answered orally and the hearing officer wrote his answers to make a record. Galan had a right to ask follow-up questions in the same way if he desired. This procedure conformed with administrative regulations, N.J.A.C. 10A:4-9.14, and it met due process requirements, see McDonald v. Pinchak, 139 N.J. 188, 198-99 (1995). Galan did not have a right to cross-examine the officer personally or through counsel substitute. See Avant v. Clifford, supra, 67 N.J. at 530 (hearing officer has discretion to determine whether cross-examination is warranted and what procedures may be used for obtaining testimony from witnesses).

Regarding the legibility of documents, we have examined the reports and other documents, including the hearing officer's notes of the evidence he relied upon and the reasons for the decision and sanctions. We have no trouble reading the handwriting and do not understand Galan's complaint. If Galan is complaining about the legibility of the decision on administrative appeal, a typed version of that document was provided and he has made use of it on this appeal. In any event, the handwriting did not affect the fairness of the proceedings or the result.

Galan argues that the evidence was not sufficient to find him guilty because his cooler is blue and white and the cell phone logs were not examined to determine if the numbers called matched his list of approved telephone numbers. The green and white cooler had Galan's name written in large letters on the outside and it was found near Galan's bed. The color difference is a matter of weight of the evidence to be evaluated within the fact finding duty of the hearing officer.

Concerning logs of the cell phone, Galan has not said how and in what time frame phone "logs" were to be obtained or why they could be relied upon to establish that the cell phone was not his. He might have obtained the cell phone recently and not yet used it, or it could have been used to contact unapproved numbers. Clearly, the record before the hearing officer provides sufficient evidence to sustain the finding of Galan's unauthorized possession of the cell phone.

Next, Galan argues that his counsel substitute was ineffective because he did not request a polygraph examination or a log of the cell phone. A counsel substitute is a trained paralegal, see N.J.A.C. 10A:6-2.12 to -2.14, not a criminal defense attorney. He is expected to provide assistance to the inmate, usually in the form of advice about due process rights and help in communicating his defense to the hearing officer. The standards that might apply to his performance are not like those of an attorney in a criminal case. Even if we were to hold that ineffective assistance of counsel substitute is a viable claim on an appeal of prison sanctions, the deficiencies alleged by Galan would not be sufficient to set aside the administrative finding of his guilt.

Finally, Galan asks for permission to expand the record so that he can challenge the denial of a typewriter to him while he serves the sanction in administrative segregation. The prison disapproved Galan's request because of security concerns about rods in the typewriter that can be removed and presumably used as weapons or tools. This issue is not properly before this court because it is embodied in a separate administrative determination that was not addressed at the hearing under review, and it is beyond the scope of this appeal. This court does not review administrative decisions that are not properly before it. We note also that Galan was able to present to this court a clean and accurately typed brief.

 
Because appellant's contentions do not show a violation of his due process rights, or an insufficiency of evidence to find him guilty of the charge, we affirm the administrative finding of guilt and the imposition of sanctions.

(continued)

(continued)

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A-5287-07T1

April 7, 2009