THOMAS CLAUSO v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5556-08T25556-08T2

THOMAS CLAUSO,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted May 19, 2010 - Decided

Before Judges Sapp-Peterson and Espinosa.

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

Thomas Clauso, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Thomas Clauso is an inmate confined at Northern State Prison in Newark. He appeals from the final agency decision imposing disciplinary sanctions for the commission of prohibited acts. We affirm.

On May 28, 2009, after noticing a "paper substance blocking the locking device," Senior Correction Officer (SCO) White asked Clauso to unblock the food port locking device for cell 312, located on Echo 300 East. He reportedly responded, "Hell[,] no[,] you stupid bitch[.] I will fuck you up, I am tired of [correction officers] searching my fucking cell." He also allegedly yelled at SCO White, "I will tie your black ass up and fuck you in your ass you and your mother because you think [you're] a man." Finally, he was alleged to have told SCO White, "I'm a Pagan Bike Rider[,] bitch, I'll have you eliminated asap." When assistance arrived in the area and Clauso was being escorted away, he reportedly stated that SCO was a "bitch[-]ass woman. I'm going to take a polygraph and get all of you[.] I have money."

As a result of these alleged remarks, Clauso was charged with violating the following disciplinary infractions under N.J.A.C. 10A:4-4.1(a): (1) *.005, threatening another with bodily harm; and (2) *.154, tampering with or blocking any locking device. The latter charge was modified to a .256 charge, refusing to obey an order. After being served with the charges, Clauso pled not guilty. His request for counsel substitute was granted, and after a number of postponements, the hearing was held before a hearing officer from the Department of Corrections' (DOC) Central Office.

At the hearing, Clauso denied blocking the food port or saying anything to SCO White. He told the hearing officer that if SCO White was not a lady, he "would have broke her fucking neck. This woman is a nut." His counsel substitute, on his behalf, stated: "We know he has a bad mouth. He doesn't control his language."

The hearing officer found that the *.005 charge had been sustained, finding:

Inmate stated he didn't say anything to that lady. He was referring to Officer White during the confrontation. He requested confrontation and did not address the threatening charge except in [the] question which he asked about the foul language which was reported. During his confrontation[,] his primary questions were about his [*.]154 charge and other questions which had nothing to do with either charge. The inmate clearly threatened the officer at the confrontation by stating that if she wasn't a lady[,] he would have broke[n] her fucking neck. He called her a nut and made all types of unnecessary and derogatory comments about the officer. He made his threats and comments directly in front of the disciplinary staff and paralegals. The paralegal admitted that the inmate has a bad mouth and doesn't know how to control his language. Not being willing to control his mouth and behavior deliberately is not enough of a reason to disregard the seriousness of the charge and the content of the charge. The C/O [Correction Officer] was clear that the inmate made racial and violent threats against the officer, the officer's family and the C.O's person. All requests were addressed. There were no further reasons to delay the hearing. Charge [*].005 upheld.

With respect to the .256 charge, the hearing officer found:

Inmate was asked to remove the item(s) blocking the food port and he refused. The C/O clearly stated that the inmate refused because he said he didn't do it. Whether he did or didn't[,] he lived in the cell and when the C/O gave him an order he refused to follow the order and remove the item. The inmate became disruptive and disrespectful. Inmate has a hx [history] of being uncooperative and disobey[ing] staff[] rules and reg. He must follow all orders by staff.

On the *.005 charge, the hearing officer recommended the imposition of fifteen days of detention, 365 days of administrative segregation, 365 days loss of commutation time, and a thirty-five-day loss of recreation privileges. On the .256 charge, similar discipline was recommended, accompanied by a recommendation for a sixty-day suspended sentence, ninety days of administrative segregation and a sixty-day loss of recreation privileges. Clauso administratively appealed the imposition of sanctions and requested leniency. However, the sanctions were upheld. The present appeal followed.

On appeal, Clauso contends:

POINT I

THE DISCIPLINARY CHARGE *.154 IS NOT ACCCRATE AND SHOULD BE DISMISSED FOR LACK OF EVIDENCE.

POINT II

NO SET OF FACTS EXIST[S] FOR A FINDING OF GUILT OF *.005.

POINT III

HEARING OFFICER'S DENIAL TO CONTINUE CONFRONTATION OF OFFICER WHITE.

POINT IV

THE REFUSAL TO OBTAIN AND PRODUCE EXCULPATORY EVIDENCE [OF] THE VIDEO TAPE OF THE INCIDENT.

POINT V

HEARING OFICER'S FINDING OF GUILT IS AGAINST THE WEIGHT OF [THE] EVIDENCE.

POINT VI

VIOLATION OF THE DUE PROCESS CLAUSE AND THE RULES, REGULATIONS, OR LAWS, AS IT IS WRITTEN IN THE UNITED STATES CONSTITUTION.

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 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 there is substantial credible evidence in the record to support the agency decision and we discern no basis for our intervention. Clauso was afforded all of the protections to which he is entitled under Avant v. Clifford, 67 N.J. 496, 522 (1975). He received the requisite notice of charges at least twenty-four hours prior to the hearing. Id. at 525. He was afforded counsel substitute. Id. at 529. The hearing officer who presided over the hearing was a member of the DOC's Central Office staff. Id. at 525-26. Clauso was offered and accepted the opportunity to call witnesses on his own behalf and to confront adverse witnesses. Id. at 529-30. Clauso and his counsel substitute were also provided with the written evidence the hearing officer was asked to consider. Id. at 528. From the testimony and documentary evidence the hearing officer considered, she made credibility determinations that led her to conclude that the charges had been sustained.

Crediting the evidence presented by prison witnesses clearly establishes that there was substantial credible evidence in the record to support the hearing officer's findings. Tlumac, supra, 187 N.J. at 573. Additionally, the hearing officer's discontinuation of the confrontation of SCO White during the hearing was appropriate given the continuation of Clauso's vituperative language during the hearing. Nor does Clauso's brief outline what questions were not permitted that would have altered the outcome of the proceedings. Finally, he also failed to demonstrate how he was prejudiced by the denial of his request for production of the surveillance video as it did not contain sound.

Affirmed.

 

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A-5556-08T2

June 23, 2010