MICHAEL PERSON 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NOT FOR PUBLICATION WITHOUT THE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-3526-08T33526-08T3

MICHAEL PERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

 

Submitted August 31, 2010 - Decided

Before Judges Simonelli and Waugh.

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

Michael Person, appellant pro se.

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

PER CURIAM

Appellant Michael Person appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.708, refusal to submit to a search, in violation of N.J.A.C. 10A:4-4.1. We affirm.

Appellant is incarcerated at South Woods State Prison (SWSP). He is serving a three-year sentence for causing a death while driving with a suspended license, distributing a controlled dangerous substance (CDS) on school property, and possession of CDS.

On December 4, 2008, Senior Correction Officer Chaparro ordered appellant to leave his cell in order to perform a cell search. Appellant refused to leave his cell. Appellant continued refusing to leave his cell despite Chaparro's continued orders to do so. Appellant was placed in handcuffs and escorted to the dayroom until he was cleared for housing in the detention unit. The SWSP Administration approved appellant for placement in pre-hearing detention. The SWSP medical staff cleared appellant for placement on detention status but indicated that he must remain on the extended care unit, not the detention unit, due to his medical condition. Appellant was then assigned to and placed in the extended care unit.

On December 5, 2008, appellant was charged with prohibited act *.708. He admits receiving the charge on that date. Appellant was also charged with prohibited act *.210, possession of anything not authorized for retention or receipt by an inmate or not issued to him or her through regular correctional facility channels, for an altered hot pot found in his cell during the search.

On December 8, 2008, Hearing Officer Maguire began the adjudication of the disciplinary charges. Appellant requested and was granted counsel substitute, and he requested one witness statement; however, that witness declined to make a statement. Appellant declined the offer of in-person confrontation of adverse witnesses. Appellant admitted delaying SCO Chaparro, requested leniency, and stated that he would plead guilty if the charge was reduced to the non-asterisk offense of .256, refusing an order.

The hearing was postponed until December 17, 2008, to allow Maguire to obtain and review all evidence on appellant's relayed *.210 charge. In adjudicating appellant guilty of the charge, Maguire relied on several reports, which appellant and counsel substitute were permitted to review. Maguire sanctioned appellant to fifteen days detention with credit for time served, ninety days administrative segregation, and sixty days loss of commutation time.

On December 17, 2008, appellant administratively appealed. He requested leniency in the form of a modified sanction based on his medical needs. He raised no other issues. On December 23, 2008, Assistant Superintendent Loretta Brancato upheld Maguire's decision. This appeal followed.

Appellant contends for the first time on appeal that (1) his placement in pre-hearing detention violated N.J.A.C. 10A:4-10 (1)(a); (2) he was not afforded a conference appeal in violation of N.J.A.C. 10A:4-7.2; (3) the postponement of the hearing violated N.J.A.C. 10A:4-9.7(a); and (4) his placement in pre-hearing detention constituted cruel and unusual punishment and a violation of the Fourteenth Amendment and the Americans with Disabilities Act because the medical staff did not clear him for placement in detention status.

We decline to consider questions or issues not properly presented below when an opportunity for such a presentation is available, unless the questions raised on appeal concern jurisdiction or matters of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Appellant's contentions do not satisfy the Nieder exceptions. Even if we considered appellant's contentions, they lack merit. N.J.A.C. 10A:4-7.2 does not afford an inmate the right to a conference appeal of his placement in pre-hearing detention, and only applies to on-the-spot disciplinary corrections; appellant's placement in pre-hearing detention complied with the requirements of N.J.A.C. 10A:4-10.1(d) and (e); N.J.A.C. 10A:4-9.8(c) permitted the postponements; and the medical staff cleared appellant for placement on detention status and he was appropriately placed in the extended care unit.

That being said, we discern no reason to disturb the DOC's decision. 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 proceedings prisoners have certain procedural due process rights, including a 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 529-30.

We are satisfied that appellant was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33, that Maguire's decision was based on substantial evidence that appellant 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) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)); N.J.A.C. 10A:4-9.15(a).

 
Affirmed.

This charge was later downgraded to an "on-the-spot-correction," for which appellant was found guilty. Appellant does not appeal this charge.

(continued)

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A-3526-08T3

September 3, 2010