CALVIN GARNETT v. DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1389-10T3

CALVIN GARNETT,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

__________________________________

August 22, 2011

Submitted August 16, 2011 Decided

Before Judges Waugh and Koblitz.

Onappeal fromthe Departmentof Corrections.

Calvin Garnett, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jennifer S. Hsia, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Calvin Garnett appeals the final administrative action of the Department of Corrections (DOC) imposing discipline based upon a finding that he failed to comply with a written rule or regulation of East Jersey State Prison, at which

Garnett is incarcerated. We remand for a fuller explanation of the agency's decision.

I.

We discern the following facts and procedural history from the record on appeal. In October 2010, Garnett was charged with offense *.051, engaging in sexual acts with others. The charge was based upon allegations that Garnett and a female visitor rubbed each other's "crotch" or "genital" areas during a contact visit on October 9, 2010. Garnett pled not guilty, claiming that no such conduct had taken place.

Garnett's disciplinary hearing was adjourned on October 12 and October 15, because the video tapes from two surveillance cameras were not yet available for review by the hearing officer. On October 18, the hearing officer viewed the tapes. She amended the charge to offense .709, violating any rule or regulation. Garnett pled not guilty to that offense.

The hearing officer found Garnett guilty of the revised charge. Her factual findings and legal conclusions were as follows:

The video shows the 2 people involved holding hands & rubbing hand but they both were doing it in an inappropriate manner. The inmate agreed that it appears that more was going on than what was. Based on rules & reg the 2 people (The inmate & his visitor) were not following rules & reg respect[ing] . . . acceptable conduct in a public area. Charge upheld.

The hearing officer imposed a sanction of (1) fifteen days in detention, suspended for sixty days, (2) ninety days of administrative segregation, suspended for sixty days, (3) sixty days loss of commutation credit, (4) ten days loss of recreational privileges, and (5) thirty-five days loss of visitation privileges. Garnett's administrative appeal was unsuccessful.

This appeal followed.

II.

On appeal, Garnett argues that the hearing officer's decision was not supported by substantial evidence, as required by N.J.A.C. 10A:4-9.15. DOC counters that the decision was appropriately supported by the record, and that we should defer to the administrative determination made after a hearing.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Substantial evidence is "'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) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)).

Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Because prison discipline is not part of a criminal prosecution, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must facilitate an informal hearing to ensure that disciplinary findings are based upon verified facts and the use of discretion is informed by accurate knowledge of an inmate's behavior. McDonald v. Pinchak, 139 N.J. 188, 195 (1995). Our Supreme Court has recognized that DOC's regulations for disciplinary hearings "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." Id. at 202.

Although we have carefully reviewed the record, we are unable to determine what Garnett did to warrant the discipline imposed. The original allegation was that he and his female visitor were "rubbing" each other's "crotch" or "genital" areas. After viewing the video tapes, the hearing officer downgraded the charge to failure to obey written rules or regulations. That charge was upheld on the basis of holding and rubbing hands in an "improper" manner, with no articulation of what was "improper" about the way Garnett and his visitor were acting or what written rule or regulation was being violated. There is nothing in the record to suggest that mere touching was not allowed. Indeed, the circumstances of the visit apparently contemplated some physical contact.

DOC points to a report reflecting a purported admission by Garnett's female visitor that she did "grab his penis." There were also reports alleging genital rubbing. We assume, without deciding, that such conduct would have supported the .709 charge. However, the hearing officer's decision does not find that such conduct took place. In fact, it is arguably implicit in her downgrading of the charge against Garnett that it did not.

We can only base our review of an administrative decision on the findings actually made therein. Because there has been no clear articulation of conduct that was improper and no citation of rule or regulation violated by such conduct, we are unable to review DOC's decision on the current record. Consequently, we remand to DOC for a fuller explanation of its decision, including specific factual findings and citation of the rules or regulations at issue.

The remand shall be completed within forty-five days. The supplemental decision by the hearing officer may be administratively appealed within DOC. If Garnett is unsatisfied with the result, he may appeal to this court. We do not retain jurisdiction.

Remanded.