CHANDA MCCLAM 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NOT FOR PUBLICATION WITHOUT THE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-1779-09T2

CHANDA MCCLAM,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________

May 3, 2011

Submitted April 5, 2011 - Decided

Before Judges Carchman and St. John.

On appeal from the New Jersey Department of Corrections.

Chanda McClam, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Chanda McClam, an inmate at Edna Mahan Correctional Facility (EMCF), appeals from a final agency decision of the Department of Corrections (the Department) that found her guilty of committing prohibited act *.002, assaulting any person, in violation of N.J.A.C.10A:4-4.1(a). We affirm.

On October 21, 2009, Corrections Officer Sergeant R. Simpson reported to the food service area of EMCF in response to an alert from Senior Corrections Officer M. Luongo. Inmate A. Burt reported to Luongo that she had just been assaulted by McClam. Burt stated to Luongo that McClam had hit her three times in the face and threw sauce on her. Simpson questioned McClam who denied the allegations. Inmate K. McClinton, who apparently witnessed the incident, told Simpson that Burt and McClam had argued and that McClam "swung on" Burt twice and threw tomato sauce on Burt. Upon completion of Simpson's investigation, McClam and Burt were brought to the infirmary for medical evaluation. The evaluation revealed that Burt had bruises, redness noted on her right cheek, but no other apparent injuries. McClam was found to be without injuries.

Based on the facts gleaned from Simpson's investigation at the food service area and the results of the medical evaluations, he concluded that McClam had assaulted Burt by punching her in the face. Simpson prepared a disciplinary report, charging McClam with a *.002 infraction (assaulting any person). On October 22, 2009, McClam was given the disciplinary report and she pleaded not guilty.

Sergeant G. Schaffer conducted an investigation of the alleged infraction. McClam told Schaffer that she was out in the break area at the time of the incident, that she never hit Burt, and that she never threw anything on her. Schaffer concluded that the victim and witness's statements, coupled with the medical evaluations, supported the allegation of assault.

At the disciplinary hearing on October 23, 2009, McClam

requested and was granted the assistance of counsel substitute.

McClam stated to the Disciplinary Hearing Officer (DHO) Shepperd that she did not do anything wrong. Her counsel substitute argued that the allegations were motivated by an old relationship, that McClam did not assault Burt, and that there was no evidence of the alleged assault. McClam requested, as witnesses, inmates Kelly and Cordero, and written statements from both witnesses were considered by the DHO. Kelly stated that she did not see anything, and Cordero stated that she did not want to get involved. McClam was offered an opportunity to confront adverse witnesses at the hearing and declined.

DHO Shepperd upheld the *.002 charge based on the reports of Luongo and Simpson, inmate Burt's statement that she was assaulted, and Burt's medical report showing an injury consistent with her allegations. DHO Shepperd imposed sanctions on McClam of fifteen days detention, 180 days loss of commutation time, and 180 of administrative segregation. Shepperd's reasons for the sanctions were stated as: deterrence of assaults; and an impression that the incident could have escalated into something more serious. The adjudication report indicated that McClam's counsel substitute reviewed the report and acknowledged that it accurately reflected what took place at the hearing.

McClam filed an administrative appeal from the DHO's

finding of guilt on the *.002 charge, checking on the appeal form "a plea of leniency" and "other" as her reasons for appeal. In a memorandum attached to the appeal form, McClam argued that there was insufficient evidence of the assault. She also questioned Burt's credibility, stating that she and Burt had a history of ill feelings toward one another. McClam requested that the DHO's finding of guilt be overturned and, if not overturned, that the sanctions be modified or suspended.

The DHO's decision regarding McClam's guilt of the *.002 charge was upheld on October 27, 2009, by William Hauck, Administrator. Hauck modified the sanctions, suspending McClam's 180 of administrative segregation for sixty days. Hauck's explanation for his decision was that McClam was proven through investigation to be responsible for this assault.

McClam raises one argument for our consideration in this appeal.

POINT ONE

APPLELLANT WAS DENIED DUE PROCESS AT THE DISCIPLINARY HEARING, REQUIRING REVERSAL OF THE FINDING OF GUILT.

McClam asserts that Schaffer never wrote a report, but simply relied on Simpson's report. Schaffer authored a report, which was given to McClam on October 22, 2009, at which time she was read her "Use Immunity" rights. The report indicates an independent investigation by Schaffer. McClam also asserts that she was never extended the right to confront her accuser and that she never authorized her counsel substitute to sign any documents on her behalf. We have considered each of these arguments and conclude that none of them has any merit.

The scope of our review in an appeal from a final determination of an administrative agency is strictly limited. There are well-recognized principles governing the judicial review of administrative agency determinations and appellate courts have a limited role in the review of such decisions. In re Stallworth, ___ N.J. ___ (2011) (slip op. at 13). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Id.at 14 (quoting Henry v. Rahway State Prison, 81 N.J.571, 579-80). "If a reviewing court concludes that a decision of the [Department of Corrections] is arbitrary, the court may either finally determine the matter by fixing the appropriate penalty or remand it to the [Department] for redetermination." Henry, supra, 81 N.J.at 580 (citing West New York v. Bock, 38 N.J.500, 520, 527-28 (1962)). In determining whether agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2)

whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether

in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

A reviewing court "may not substitute its own judgment for the

agency's, even though the court might have reached a different

result." Stallworth, supra,___ N.J.at ___ (slip op. at 14-15) (citations omitted). This is particularly true when the issue under review is directed to the agency's special "expertise and superior knowledge of a particular field." Id.at 15 (quotations omitted). The application of these principles is not limited to whether a violation warranting discipline has been proven because this deferential standard also applies to the review of disciplinary sanctions. Ibid. Accordingly, when reviewing administrative sanctions, appellate courts should consider whether, in the light of all of the circumstances, the punishment is so disproportionate to the offense that it is shocking to one's sense of fairness. Ibid.(citations omitted).

An incarcerated inmate is not entitled to the full panoply

of rights in a disciplinary proceeding as is a defendant in a

criminal prosecution. Avant v. Clifford, 67 N.J.496, 522

(1975). Inmates are, nonetheless, entitled to certain limited protections prior to being subjected to disciplinary sanctions. Those protections are set forth in Avant, supra, as follows:

(1) Written notice of the charges at least 24 hours prior to the hearing, id.at 525;

(2) An impartial tribunal, which may consist of personnel from the central office staff of the Department, id. at 525-28;

(3) A limited right to call witnesses and present documentary evidence in defense to the charges, id.at 529-30;

(4) A limited right to confront and cross-examine adverse witnesses, ibid.;

(5) A right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, id.at 533;

(6) Where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute, id.at 529.

The record shows that McClam was provided with a counsel substitute and advised of use immunity for criminal proceedings by the DHO. McClam did identify witnesses she wanted to present on her behalf and statements from those witnesses were considered at the hearing. Additionally, she has not identified anyone whose testimony her counsel substitute was unable to cross-examine. The record also shows she was provided with a written statement of the evidence relied upon and, obviously, she has filed an appeal. Thus, the record shows that the disciplinary process here did not violate McClam's due process rights.

McClam also appears to attack the sufficiency of the

evidence, arguing that the evidence presented was insufficient to substantiate the charge against her. We disagree. The DHO considered the victim and witness's statements, which were corroborated by the medical evidence. The evidence was plainly sufficient to support the conclusion that McClam committed the disciplinary offense charged.

We have considered, in reviewing the sanctions imposed on McClam, in light of all the circumstances, whether the punishment is so disproportionate to the offense that it is shocking to one's sense of fairness. We find that the sanctions imposed were fair.

A