JUAN FELIX ORELLANA v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4562-08T34562-08T3

JUAN FELIX ORELLANA,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted May 26, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

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

Juan F. Orellana, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Kevin Jespersen, Assistant Attorney General, on the brief).

PER CURIAM

Juan Orellana is an inmate currently incarcerated at East Jersey State Prison in Rahway (EJSP). He appeals from a final administrative decision imposing disciplinary sanctions stemming from allegations of assault and disruption of the prison security. We affirm.

On March 24, 2009, during a search of Orellana's cell, Senior Correction Officer (SCO) Casper observed a hotpot filled with an unknown clear liquid substance boiling on the desk on which it was situated. After SCO Casper unplugged the hotpot, Orellana entered the cell and SCO Casper immediately told him to leave. Rather than leaving as ordered, Orellana grabbed the hotpot and threw its contents at SCO Casper, striking his neck, chest and right hand. SCO Casper called for assistance and three other officers arrived and eventually restrained Orellana and removed him to a holding cell. Orellana reportedly resisted the three officers from the time of their arrival until he was placed in a holding cell. SCO Casper claimed that he sustained injuries to his chest, neck and right hand, and following examination at the prison medical unit, he was transported to South Jersey Regional Medical Center for further evaluation.

The hotpot was confiscated, and during an inspection of the unit by Sgt. Nardelli, he found that a screw on the bottom of the hotpot appeared loose, leading him to believe that there had been tampering of the hotpot. He removed the base of the hotpot and observed that the thermostat was not making direct contact with the base and surmised that this condition could cause the pot to overheat and boil liquid.

Orellana was charged with committing prohibited acts *.003, assaulting any person with a weapon, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. N.J.A.C. 10A:4-4.1(a). He was served with the charges. His request for counsel substitute was granted and, after one postponement, the hearing was conducted on March 31, before a hearing officer from the Department of Correction's (DOC) Central Office. Orellana was offered the opportunity to confront adverse witnesses and to present witnesses on his own behalf. He declined both offers. At the hearing, he pled not guilty. He submitted a written statement in which he alleged that SCO Casper called him to his cell and asked to see his handwritten notes. While showing the notes to the officer, Orellana contends SCO Casper called a "Code 33" and that he then dropped to the floor, placing his hands behind his back.

The hearing officer found that the charges had been sustained, relying upon the written reports from prison officials describing the incident, reports from the prison medical staff describing SCO Casper's injuries, and the hotpot inspection report indicating that the hotpot had been altered and was capable of boiling water. The hearing officer imposed sanctions consisting of fifteen days' detention, 365 days' administrative segregation, and 365 days' loss of commutation time. Orellana filed an administrative appeal but the hearing officer's findings and sanctions imposed were upheld. The present appeal followed.

On appeal, Orellana contends:

POINT [I]

THE COURT-LINE HEARING REVERSIBLY ERRED IN FAILING TO GRANT ORELLANA'S REQUEST FOR A CONFRONTATION AND CROSS-EXAMINATION WHEN IT BECAME OBVIOUS THAT ALL REPORTS STATED THAT THE OFFICER SUFFERED INJURIES ON DIFFERENT PARTS IN THE BODY, AND OF DIFFERENT DEGREES. []N.J.A.C. 10A:4-9.14[(a)][].

POINT [II]

VIOLATION OF STANDARDS BY THE HEARING OFFICER REVERSIBLY ERRED IN FAILING TO ADEQUATELY PURSU[E] S.W.S.P. TO PROVIDE[] COURT-LINE WITH . . . EXPERT EVIDENCE AND/OR PHYSICAL . . . FACTS THAT [COULD] HAVE ESTABLISH[ED] A BEST EVIDENCE RULE. N.J.A.C. 10A:4-8.4(a).

POINT [III]

VIOLATION OF THE INVESTIGATION PROCEDURES ON THE HEARING OFFICER'S [PART] REVERSIBLY ERRED IN FAILING TO GRANT ORELLANA'S MOTION FOR A DISMISSAL OF THE CASE AFTER NOTING HOW THE INVESTIGATING OFFICER DESTROYED THE HOT-POT AND FAIL[ED] TO ATTACH PHOTOGRAPHS OF PHYSICAL EVIDENCE. N.J.A.C. 10A:4-9.5(e).

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

The procedural safeguards governing prison disciplinary proceedings set forth in Avant v. Clifford, 67 N.J. 496, 523 (1975) were followed. He received timely written notice of the charges. Id. at 525. He was afforded the assistance of substitute counsel. Id. at 529. The hearing was conducted before an impartial hearing officer not connected to EJSP. Id. at 525-28. Orellana was provided with the opportunity to confront adverse witnesses and to call witnesses on his behalf. Id. at 529-30. The hearing officer considered the written statement that he was permitted to submit. Id. at 529. After considering all of the evidence, the hearing officer found the evidence presented on behalf of the EJSP credible and concluded that the charges had been sustained.

Our scope of review of administrative decisions is quite limited. We will reverse such a decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We are not to substitute our judgment for that of the agency, Brady v. Dep't of Pers., 149 N.J. 244, 264 (1997), nor substitute our fact-finding for that of the agency. Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006). We "must defer to the agency decision if the findings of fact are supported by substantial credible evidence in the record and are not so wide off the mark as to be manifestly mistaken." Ibid. Judged by these standards, we are satisfied that there is substantial credible evidence in the record to support the agency decision and discern no basis for our intervention.

Affirmed.

 

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A-4562-08T3

June 25, 2010