MELVIN JONES v. NEW JERSEY DEPARTMENT OF CORRECTIONS

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3042-08T13042-08T1

MELVIN JONES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.



Submitted January 6, 2010 - Decided

Before Judges Graves and J. N. Harris.

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

Melvin Jones, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Melvin Jones, an inmate lodged at East Jersey State Prison, appeals from his conviction for commission of prohibited act .703 (correspondence or conduct with a visitor in violation of regulations). See N.J.A.C. 10A:4-4.1(a). As the result of his conviction, Jones was sanctioned with sixty days loss of contact visits.

On appeal, Jones presents the following main legal argument:

IN VIEW OF THE CIRCUMSTANCES SURROUNDING THIS MATTER THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS SHOULD BE VACATED AND DISMISSED, INASMUCH AS APPELLANT WAS DENIED A FAIR DISCIPLINARY HEARING PREJUDICIAL ENOUGH TO WARRANT REVERSAL, AND VIOLATIVE OF APPELLANT'S DUE PROCESS AND EQUAL PROTECTION RIGHTS AS GUARANTEED BY NEW JERSEY CONSTITUTION, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTIONS.

Distilled to its essence, Jones claims that he was the victim of an overarching pattern of discrimination and retaliation fostered by the New Jersey Department of Corrections (DOC), implemented by its officers, primarily Lieutenant Richard Salort, and carried to fulfillment by the hearing officer and administrator assigned to his case. Jones claims that the present disciplinary matter was initiated in retaliation for Jones's formal and informal complaints about Lieutenant Salort's alleged harassment and religious discrimination.

We affirm.

I.

The record reveals evidence that on January 4, 2009, Jones was observed in the prison's Visit Hall by two corrections officers Lieutenant Salort and Senior Corrections Officer Stark engaged in inappropriate behavior with a visitor. Lieutenant Salort's report of the incident stated, "visitor Mrs. Karen Duck was witness[ed] by this writer with her legs wedged between inmate Jones['s] legs." Senior Corrections Officer Stark's report similarly stated, "I observed I/M Jones #[] sitting with his visitor[']s legs wedged in between his."

Believing that Jones's conduct, which Jones had previously been warned against, was contrary to DOC regulations, Lieutenant Salort initiated a disciplinary proceeding against Jones. Witness statements were collected, videotapes were reviewed and found to be without evidentiary significance, and a hearing was held on January 9, 2009.

Disciplinary Hearing Officer Gary Shepperd marshaled the evidence, sifted through the conflicting portions of the proofs, and rendered the following determination:

The behavior does violate visit rules (visit rules- P. 29 IM handbook- #1[]) according to the Lt. IM pleads not guilty, stating the Lt. is retaliating. There is no evidence that this is the case. Inmate's witnesses do not give him any real support. The staff observations are clear, & I can see no reason for the submission of false reports. Charge upheld.

Shepperd's adjudication form indicates that he considered the statements of two other inmates, as well as Jones's statement: "It is a retaliation [be]cause I wrote him up. There is no video to back up his statement. I wrote him up for harassing my visit." The adjudication form contains a notation in response to Item #15 that Jones declined the opportunity to confront adverse witnesses. Jones's signature appears on the adjudication form directly below the following language:

Inmate or counsel substitute acknowledges that the information in lines 1-15 accurately reflects what took place at the inmate disciplinary hearing.

Jones immediately appealed the Disciplinary Hearing Officer's decision on the grounds of a "violation of Standards" and a "misinterpretation of the facts." He explained the basis for his appeal as follows:

Lt. Salort violated, through his words, Art. II sect. 6; sect. 7; sect. 8, Art. III sect. 1 & Art. VI sect. 1, 2 & 3. S.C.O. Stark violated Art. I sect 3; Art II sect 6, 7 & 8. And I didn't refuse confrontation.

On January 23, 2009, DOC Associate Administrator Cindy Sweeney upheld Shepperd's determination, explaining:

You have not offered any evidence of a violation of standards. You have not explained what was misinterpreted.

This appeal followed.

II.

After carefully considering the record and briefs, we are satisfied that all of Jones'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 otherwise 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).

Furthermore, when reviewing a determination of the DOC involving a prisoner's disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act at issue and whether, in making its decision, the DOC followed the regulations adopted to afford inmates adequate procedural due process. McDonald v. Pinchak, 139 N.J. 188, 193-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995). 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 the 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 Jones was afforded all required due process protections outlined in Avant, supra, 67 N.J. at 525-33; that the hearing officer's decision was based on substantial credible evidence that Jones committed the prohibited act; 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).

Jones asserts on appeal, as he did at the initial hearing, that the charges against him were both discriminatory and retaliatory. However, he has offered no evidentiary support for the conclusion that Lieutenant Salort, who was the subject of Jones's prior complaints, acted in a retaliatory fashion by filing the present disciplinary matter. Moreover, the record is barren of competent evidence to support Jones's conclusory accusation that "Lt. Salort openly admitted and openly stated that he do[es] not like Muslims and care[s] very little about blacks."

Similarly, there is no merit in Jones's argument that he was denied fundamental due process of law. The procedures afforded to Jones in connection with his hearing were adequate. See Avant, supra, 67 N.J. at 528-32 (prescribing minimal procedural due process norms for prison disciplinary hearings).


Affirmed.

The record contains a memorandum from Lieutenant Salort to Sergeant Stanley Solsky, dated January 7, 2009, that was written in response to Jones's request for video tape evidence. The memorandum states: "Their [sic] is no video evidence since the camera was not on I/M Jones [] at the time of the infraction."

"P. 29 IM handbook- #1" refers to Page 29 of the East Jersey State Prison Inmate Handbook (June 21, 2005), which contains the following guideline for visits: "You and your visitor(s) are to maintain proper decorum for a public place at all times."

Jones contends that he was the victim of race and religion-based discrimination. His pro se brief asserts that he and his wife "are both 'Black' and both are 'Muslims.'"

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A-3042-08T1

January 28, 2010