HECTOR C. MORALES 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NOT FOR PUBLICATION WITHOUT THE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-5990-08T2

HECTOR C. MORALES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

September 27, 2010

Submitted September 20, 2010 Decided

Before Judges Lisa and Reisner.

On appeal from the New Jersey Department of Corrections.

Hector C. Morales, appellant pro se.

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

PER CURIAM

Hector C. Morales, a prison inmate, appeals from a finding that he committed prohibited act *.306, disrupting the orderly running of the institution, N.J.A.C. 10A:4-4.1(a). We remand this matter to the Department of Corrections (DOC) for further proceedings consistent with this opinion.

I

The inmate is serving a ten-year sentence with a five-year parole bar for burglary and theft. The underlying facts giving rise to this appeal appear largely undisputed. According to the report of Sergeant Dilks, on January 20, 2009, the inmate told a corrections officer, who also happened to be named Morales, that the inmate "had not slept in four days and that medical won't give him his meds." He also "stated that he was going to kill himself." Officer Morales called Sergeant Dilks. Before Dilks could arrive, the "inmate approached the officer in an aggressive manner with clenched fists." The officer called in an emergency "Code 33." There followed a ten-minute lockdown of the institution and, later, a ten-minute delay in the daily "pill call" for the inmates.

The inmate was placed in a holding cell, where he "became very violent by standing at the back of the cell and running full speed into the door, doing this many times injuring himself." When Dilks ordered him to stop, the inmate did so and then told Dilks that he "wanted to kill himself." The inmate was placed on suicide watch and charged with prohibited act *.306, disrupting the institution, and prohibited act *.005, threatening an officer.

Prior to adjudicating the charges, the hearing officer sent the inmate for evaluation by a psychologist and obtained a report, which was not provided to the inmate.1 At the hearing, the inmate called no witnesses, but offered as a defense that he had not been given his prescribed medications, "hadn t slept in four days," "has been on and off psych meds" and "may have not been in the right frame of mind" at the time of the incident.

The hearing officer found the inmate guilty of violating *.306, but not *.005, and imposed sanctions of 15 days detention, 365 days administrative segregation, the loss of 365 days of commutation time and 30 days loss of recreational privileges. The hearing decision reasoned that the inmate "threaten[ed] to harm himself if he does not get his way and then move[d] towards officer with clenched fists. This type of behavior is not to be tolerated." In his administrative appeal, the inmate requested leniency based on his mental illness. In rejecting the appeal, the prison s associate administrator concluded that "the issues you raise, in your appeal, that you had suicidal thoughts at the time of the incident could not be substantiated based on your professional report."

II

On this appeal, the inmate contends that the lockdown arose from his suicide threat and was not due to any threat to the officer. In its brief, the State agrees that the officer called a Code 33 and that the institution was temporarily locked down because the inmate threatened to kill himself, not because the inmate allegedly threatened the officer. The inmate further contends that the incident arose from and was symptomatic of his underlying mental problems and the fact that he had not received his psychiatric medication. He contends that although a psychological report was issued, the hearing officer did not consider it. He therefore argues that we should remand this case to the hearing officer for reconsideration. We agree that the matter must be remanded.

The pertinent regulations require the prison hearing officer to consider psychological evidence where it may be relevant:

(d) The Disciplinary Hearing Officer/ Adjustment Committee shall determine the need to obtain a psychological/psychiatric evaluation based upon the nature of the infraction, the determination from the Mental Health Unit regarding whether the inmate is a special needs inmate and/or any other relevant information.

1. In those cases where a psychological/ psychiatric evaluation is necessary, the Disciplinary Hearing Officer/Adjustment Committee shall forward Form HSU-010, Request for Psychological/Psychiatric Evaluation to the Lead Psychologist.

2. Upon completion and receipt of the evaluation report from the Lead Psychologist, the Disciplinary Hearing Officer/Adjustment Committee shall consider the information provided in the evaluation report along with any other information gathered during the investigation.

[N.J.A.C. 10A:4-9.5(d)].

In compliance with the regulation, the prison s psychologist examined the inmate and issued a report. We have reviewed the report, which was submitted to us in a confidential appendix. The report opines that the inmate suffered from a mental illness at the time of the incident. Addressing the central and critical issue in this case, the report then states in conclusory fashion that the inmate's "symptoms of mental illness did not contribute to his behavior." The psychologist provided no explanation as to what the inmate's mental illness was, what the symptoms were, or the reason for his conclusion that those symptoms did not contribute to the incident. The report was thus a net opinion and provided the hearing officer with no meaningful information on which to base a decision. See Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981); Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000).

We will not disturb the agency s decision unless it was arbitrary or capricious, or unsupported by sufficient credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). On this record, however, we are not satisfied that there is substantial credible evidence to support the agency's decision, due to the lack of a reasoned expert opinion as to why the incident was not due to the inmate's psychological condition. Where the central issue in a disciplinary hearing is the inmate s psychological condition and its relationship to the alleged infraction, the psychologist s report must address that issue in reasonable detail. A psychological report that merely states a conclusion, e.g., that an incident was not caused by an inmate s mental illness, is insufficient. In deciding that this case must be remanded, we also take into account the severe penalties that were imposed, including 365 days loss of commutation credits and 365 days of administrative segregation. See Williams, supra, 330 N.J. Super. at 205.

We therefore vacate the finding of guilt and the sanctions imposed, and remand this matter to the agency for reconsideration. Before reaching a decision on remand, the hearing officer must obtain a more complete psychological report and must reconsider, in light of that report, the issues of the inmate s guilt or innocence and the appropriate sanction if the inmate is found guilty of the charge. We do not retain jurisdiction.

Vacated and remanded.

1 The report was provided to us in a confidential appendix.