DENNIS SMITH v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3472-08T13472-08T1

DENNIS SMITH,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________

Submitted April 27, 2010 - Decided May 24, 2010

Before Judges Carchman and Parrillo.

On appeal from a Final Decision of the Department

of Corrections.

Dennis Smith, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney

General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Dennis Smith, who was an inmate at Southern State Correctional Facility at the time of the incident in question, appeals from a final decision of the Department of Corrections (DOC), adjudicating him guilty of disciplinary infractions *.013, "unauthorized physical contact with any person, such as, but not limited to, physical contact not initiated by a staff member, volunteer or visitor[,]" and *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility[,]" in violation of N.J.A.C. 10A:4-4.1. We affirm.

The evidence established that on February 5, 2009, Senior Corrections Officer (SCO) Rogue ordered Smith to make sure his bed area was cleaned because of an upcoming inspection. According to Rogue, Smith replied, "I always clean my f---ing bed area, even others[,] bed areas." When Rogue instructed Smith to worry just about himself, Smith began yelling and waving his arms in the air. As other inmates began gathering around because of the disturbance, Rogue ordered Smith to calm down and go to his wing. When Smith refused, Rogue requested assistance from his partner, SCO Gandy, and then ordered Smith to walk to the Sergeant's office and place his hands on the wall, due to the attention he was receiving within the unit.

While in the office, Smith continued to yell and draw attention of unit inmates. Upon arrival, SCO Gandy ordered the gathering inmates to disperse and return to their wing, and then called for Sergeant Graiff to report to the unit. Meanwhile, Rogue handcuffed the still combative Smith, who then threatened Rogue, stating "I know people on the street I can call that can

f---ing take care of you." When Sergeant Graiff and SCO Emmel arrived shortly thereafter, and as Rogue was explaining the incident to them, Smith again started yelling and jerking his body around. Sergeant Graiff called for a lockup cart to be brought to the unit as SCO Emmel attempted to restrain Smith. Smith then started kicking SCO Emmel with his left foot and struck SCO Emmel in his left leg. Smith was restrained in the lockup cart and transported to detention after being seen and cleared by the nurse.

As a result of this incident, Smith was charged with disciplinary infractions .256, refusing to obey an order of any staff member; *.005, threatening another with bodily harm; *.002, assault; and *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility[.]" Smith was given timely written notice of the charges; afforded counsel substitute and the opportunity to make a statement; provided the occasion to review the adjudication report and all evidence utilized against him; and provided a hearing before an impartial tribunal. Smith pled not guilty and at the hearing denied refusing an order, threatening SCO Rogue, assaulting SCO Emmel, or being disruptive in any way, claiming that Rogue initiated and instigated the entire incident. Although given the opportunity, Smith did not offer any witnesses on his behalf, nor did he confront adverse witnesses.

At the conclusion of the evidence, the hearing officer found Smith not guilty of the .256 and *.005 charges, but adjudicated him guilty of the *.306 charge as well as disciplinary infraction .013 (unauthorized physical contact) as modified from the original *.002 assault charge. Smith was sanctioned on the former to fifteen days detention, 300 days of administrative segregation, and 300 days of commutation time, and on the .013 charge, to a consecutive sanction of fifteen days detention, ninety days administrative segregation, and sixty days loss of commutation time. In rendering the sanctions, the hearing officer stated:

It is of the utmost importance for inmates to follow the direct orders of staff. Any refusal will result in staff altering from their normal duties. Inmate Smith's conduct disrupted the staff's normal duties. Inmate Smith's actions caused a gathering of unit inmates.

Smith filed an administrative appeal, and on February 27, 2009, the assistant administrator upheld the decision of the hearing officer. This appeal follows in which Smith raises the following issues:

I. THE HEARING OFFICER'S DECISION WAS NOT BASED ON SUBSTANTIAL EVIDENCE AS REQUIRED BY N.J.A.C. 10a:4-9.15(a).

II. THE SANCTION RECEIVED ON THE *.306 CHARGE WAS ARBITRARY AND CAPRICIOUS.

III. THE HEARING OFFICER DID NOT PROVIDE A "SUMMARY OF EVIDENCE" STATEMENT THAT WAS ADEQUATELY DETAILED WITH REASONS.

IV. THE ADMINISTRATOR DID NOT PROVIDE THE REQUIRED RECITATION OF WHAT SUBSTANTIAL EVIDENCE CONSISTED OF.

V. THE ADMINISTRATOR VIOLATED SMITH'S RIGHT UNDER N.J.A.C. 4:11-7(a), BY NOT RENDERING A DECISION ON HIS APPEAL WITHIN THE REQUIRED 72 HOURS, OR EVEN A REASONABLE AMOUNT OF TIME THEREAFTER.

After reviewing the record in light of the arguments advanced by the parties, we conclude that the issues presented by appellant are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). We add only the following comments.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Governed by this standard, we find no basis to disturb the result, as we are satisfied that both the hearing officer's decision and the DOC's ultimate determination are grounded on sufficient credible evidence. See Henry, supra, 81 N.J. at 579-80. We are also satisfied that the administrative adjudication comported with procedural due process, see Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995); McDonald v. Pinchak, 139 N.J. 188, 193-95 (1995), and find no warrant for interference with the sanctions imposed.

 
Affirmed.

DOC inmate disciplinary regulations classify "asterisk" offenses as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1; Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).

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