TYRONE BARNES 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NOT FOR PUBLICATION WITHOUT THE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-4238-08T3

TYRONE BARNES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________________

September 24, 2010

Submitted September 7, 2010 - Decided

Before Judges Payne and Messano.

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

Tyrone Barnes, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Susan M. Scott, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tyrone Barnes, an inmate at East Jersey State Prison, appeals from the final decision of the Department of Corrections (D.O.C.) that adjudicated him guilty of committing prohibited act *.306, conduct that disrupts or interferes with the security or orderly running of the facility. See N.J.A.C. 10A:4-4.1(a). The disciplinary hearing officer imposed a sanction of 10 days in detention with credit for time served, 210 days of administrative segregation, and the loss of 180 days of commutation time.

On administrative appeal, the facility's Associate Administrator affirmed the findings of the hearing officer and the sentence imposed. This appeal followed.

Barnes raises the following points on appeal:

POINT I:

THE HEARING OFFICER FAILED TO MAKE MENTION OR SUBSTANTIATE WHAT EVIDENCE WAS DEEMED SUBSTANTIAL TO SUPPORT HIS DECISION, IN LIGHT OF APPELLANT BEING FOUND NOT GUILTY OF THE PRINCIPAL CHARGES, SUCH SHORT-COMING IS ARBITRARY, AND UNREASONABLE WHICH SHOULD WARRANT A REMAND.

POINT II:

APPELLANT['S] DUE PROCESS RIGHTS W[ERE] VIOLATED BY DOC FAILURE TO AFFORD A TIMELY HEARING []OR GIVE [AN] EXPLANATION WHY HEARING WASN'T HELD IN TIMELY MANNER.

POINT III:

THE ADMINISTRATOR'S ASSISTANT ESCHEWED [HIS] DUTY BY UPHOLDING APPEAL BASED ON INCORRECT PROCEDURES, SUCH REASONS GIVEN RUN[]AFOUL OF DUTY WHEN REVIEWING ADMINISTRATIVE APPEALS.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

On March 8, 2009, Barnes was an inmate at Bayside State Prison. At approximately 7:00 p.m., after the movement of inmates into the education area had ceased, and the movement of inmates into the chapel area had begun, Barnes attempted to enter the education area. He was ordered to stop and to submit to a search; he loudly refused the order, causing officers from the chapel area to respond to the education area. They observed Barnes, with his hands raised in front of him, refusing to submit to the search. Barnes was subdued and placed in handcuffs. A subsequent search revealed that he had concealed "legal" mail in a back brace he wore. The altercation resulted in the delay of the movement of inmates to the chapel.

Barnes was served with a notice of disciplinary action on March 9, charging him not only with the *.306 violation, but also two additional disciplinary violations, *.708, refusing to submit to a search, and *.402, being in an unauthorized area. A hearing took place on March 11; Barnes was represented by counsel substitute, declined the opportunity to confront any adverse witnesses, and offered no witnesses on his behalf. In a statement before the hearing officer, Barnes claimed he "was set-up," but acknowledged he did not comply with the staff's orders. Barnes stated he would "enter a no plea since [he was] concerned that [he would] not be able to substantiate [his] innocence. In exchange, by keeping the process simple, [he] request[ed] sanction leniency."

The hearing officer rejected any claim that the officers had fabricated the story, noting "[t]here [wa]s no evidence of misconduct [by the] staff." He further noted the consistency of the reports of the officers, and the fact that the incident occurred in a "sensitive area" of the facility. The hearing officer concluded Barnes was not where he was supposed to be in the facility, and that he refused the order to be searched and resisted the attempts to handcuff him. However, he only adjudicated Barnes of the *.306 violation, and imposed the sanctions we have referenced.

Barnes' administrative appeal advanced the first two arguments he has made before us. The Associate Administrator rejected them without explanation, upheld the determination, and concluded that the "sanction imposed was proportionate to the offense."

Our review of agency action is limited. "An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is 'arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole.'" Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In Re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quotations and citations omitted). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).

Barnes initially contends that the administrative decision was not supported by "substantial evidence." He bases this argument, in part, on the fact that two of the three disciplinary charges were dismissed against him.

While some inconsistencies exist in the reports of the various officers, they are by and large consistent with each other in all critical respects. Although Barnes claims there was insufficient proof regarding any disruption to the facility, the hearing officer found, based upon the reports in evidence, that movement of the inmates into the chapel area was suspended and delayed as a result of the incident. We will not second guess the agency's interpretation of its own regulations prohibiting disruptive conduct that impairs the orderly operation of the facility. See Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) ("It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'") (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)).

Next, Barnes contends his due process rights were violated in that he was placed in pre-hearing detention at 7:00 p.m. on March 8, his hearing did not occur until March 11, and no explanation was given for the delay. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). It suffices to say that N.J.A.C. 10A:4-9.8(c) provides that "[i]nmates confined in Prehearing Detention shall receive a hearing within three calendar days of their placement in Prehearing Detention . . . ." D.O.C. fully complied with these time constraints, and Barnes has failed to demonstrate why the regulation does not "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald v. Pinchak, 139 N.J. 188, 202 (1995).

Lastly, Barnes contends that we should order a remand because the Associate Administrator's final decision denying his appeal failed to demonstrate any consideration of the factors set forth in N.J.A.C. 10A:4-11.4(e). That section of the regulations provides:

In reviewing an appeal the following factors shall be considered:

1. Compliance with the subchapters on inmate discipline which prescribe procedural safeguards;

2. Whether the decision of the Disciplinary Hearing Officer or Adjustment Committee was based upon substantial evidence;

3. Whether the sanction imposed was proportionate to the offense in view of the inmate's recent disciplinary history and present custody status except in the case of a termination of contact visits sanction as established in N.J.A.C. 10A:4-5.1(c);

4. Whether the inmate has a history or presence of mental illness; and/or

5. Whether extenuating circumstances were considered.

The argument is unpersuasive. Although the comments on the disposition form are terse, it explicitly reflects that the Associate Administrator considered factors 3 and 4. Although the other factors are not mentioned, we conclude consideration of them was implicit in the final decision, and so no reason to remand the matter in light of our review of the total record.

Affirmed.