PHILLIP A. DIXON 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NOT FOR PUBLICATION WITHOUT THE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-5338-07T35338-07T3

PHILLIP A. DIXON, #206938/375768B

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

 

Submitted January 11, 2010 - Decided

Before Judges Rodr guez and Yannotti.

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

Phillip A. Dixon, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Phillip A. Dixon (Dixon) appeals from a final determination of the New Jersey Department of Corrections (NJDOC), which found that he committed prohibited act .254, refusing to accept a housing assignment, in contravention of N.J.A.C. 10A:4-4.1(a). We vacate the NJDOC's decision and remand the matter to the department for a new hearing.

This appeal arises from the following facts. Dixon is presently incarcerated at New Jersey State Prison (NJSP) in Trenton, New Jersey. On May 13, 2008, Sergeant Gaughan (Gaughan) ordered Dixon to pack his possessions and prepare to be transferred from administrative segregation to another housing assignment on 3-Wing. According to Gaughan, Dixon refused to go to 3-Wing. Dixon was placed in pre-hearing detention and charged with committing prohibited act .254, refusing a housing assignment. The charge was investigated, it was found to have merit and the matter was referred for a hearing.

Prior to the hearing, Dixon submitted a written statement in which he said that he did not refuse the new housing assignment. Dixon wrote that he had informed the corrections officer that he could not be placed in a cell with another inmate for medical and psychological reasons. Dixon claimed that, if he was placed in a cell with another inmate, it would endanger his life and well being. He asserted that, at his orientation in August 1991, he had been classified as "single cell only."

Dixon requested that a certain doctor and senior classification officer be called as witnesses. Dixon asked for copies of his classification documents from August 1991. He also requested confrontation with any custody staff personnel who alleged that he had refused the new housing assignment, including Gaughan and corrections officers Abrahms and Rodriguez.

The hearing took place on May 16, 2008. Dixon pled not guilty. The hearing officer's report indicates that Dixon did not request any witnesses or seek confrontation of adverse witnesses. The hearing officer found Dixon guilty of committing the prohibited act and imposed sanctions. Thereafter, Dixon filed an administrative appeal. He asserted, among other things, that he had been denied his right to present witnesses and evidence and to confront adverse witnesses.

On May 20, 2008, the assistant superintendent of NJSP upheld the hearing officer's decision, finding that there was substantial credible evidence to support the decision. In his decision, the assistant superintendent wrote that he had reviewed Dixon's classification folder, the most recent psychological report and had spoken with persons in the psychology department. He stated that "[t]here were no medical contraindications to [Dixon's] housing with another inmate." This appeal followed.

Dixon argues that: 1) the hearing officer's decision was not based on substantial evidence; 2) he was denied due process because the hearing officer improperly denied him of his right to present witnesses and evidence and confront adverse witnesses; and 3) he was denied due process by the absence of a verbatim record. In response, the NJDOC maintains that the matter should be remanded to the NJDOC for further consideration. We agree with the NJDOC that the matter should be remanded for a new hearing.

Accordingly, the NJDOC's decision of May 20, 2008, finding Dixon guilty of refusing a housing assignment is vacated and the matter is remanded for a new hearing, at which Dixon should be afforded an opportunity to present evidence and witnesses on his own behalf and to confront any adverse witnesses. The remand proceedings shall be completed within sixty days of the date of this opinion.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

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A-5338-07T3

January 28, 2010