MICHAEL BROWN 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NOT FOR PUBLICATION WITHOUT THE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-2781-09T3

MICHAEL BROWN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

May 2, 2011

Argued February 15, 2011 Decided

Before Judges Baxter and Koblitz.

On appeal from the New Jersey Department of Corrections.

Christopher R. Barbrack and Jean E. Ross argued the cause for appellant (Mr. Barbrack, attorney and on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant Michael Brown, a New Jersey State Prison inmate, is serving a life sentence with a mandatory minimum of thirty years for murder 2C:11-3a(1) and (2). He is also serving two consecutive sentences, one for fifteen years with a parole ineligibility period of eighty-five percent under the No Early Release Act, N.J.S.A. 2C:43-7.2, for kidnapping, N.J.S.A. 2C:13-1b and 2C:2-6, and another for five years with a parole ineligibility period of one-third for hindering apprehension, N.J.S.A. 2C:29-3b(1). Brown appeals the August 19, 2009 decision of the Department of Corrections (Department) imposing discipline for two charges of assault against two Passaic County corrections officers. N.J.A.C. 10A:4-4.1(a); *.002.1 On each charge Williams was sanctioned consecutively to fifteen days of detention, 365 days of administrative segregation and a 365-day loss of commutation time. His matter was referred to the Special Investigations Division to determine whether the charges should be referred to the Prosecutor.

On appeal, Brown argues that the hearing officer rendered an arbitrary and capricious finding of guilt not supported by substantial evidence and failed to accord due process. After reviewing the record in light of the contentions advanced on appeal, we reverse to allow Brown to present the statement of an inmate eyewitness and direct the Department to reconsider its decision not to administer the requested polygraph test to Brown.

On July 9, 2009, when Brown was temporarily lodged in the Passaic County Jail, five corrections officers entered Dorm 1-1 to conduct roll call. All inmates were instructed to exit the dorm and line up. When Brown delayed exiting, an altercation began between the officers and Brown. The Department's "description of alleged infraction" delivered to Brown reads in its entirety, "assault by pushing Cpl. Teller with both hands while striking Sgt. Meehan." Brown was sprayed in the face with O.C. (Oleoresin Capsicum) by the officers and then restrained. He was taken to the medical unit where he was observed to have closed eyes due to the spray as well as multiple facial bruises, a broken tooth,2 redness and facial swelling and scalp redness. He also had redness and bruises on his neck and back and a lower lip laceration. He reported a "pounding headache" and was sent to the emergency room at St. Joseph's Hospital to rule out any additional head and facial injuries. Sergeant D. Meehan was evaluated by the jail medical personnel due to redness and soreness of his chest and a scratch on his right arm. No other officer was hurt.

On July 10, 2009, Brown was brought before a Passaic County Superior Court judge for a post-conviction relief application. The judge ordered that Brown be kept in protective custody.3

Brown maintains that he was denied the ability to properly present his defense to the hearing officer in part because he was placed in solitary confinement. He was represented by an inmate paralegal counsel substitute. Brown claims he was denied the right to obtain a statement from inmate Luis Tamayo, who was an eyewitness to the altercation, and was denied access to photographs showing his injuries. He received only photocopies of photographs, which were not helpful.4 On July 23, 2009, Brown requested in writing hospital medical reports, all investigative reports, including interviews and photographs from all internal and external5 investigations, and a copy of the court order placing him in protective custody.

Brown sought a polygraph test, which was denied by the Passaic County Sheriff's Department (Sheriff) because the "detailed reports from all staff involved in this incident [furnished] more than enough information . . . to make an informed decision during the adjudication of these disciplinary charges." The Sheriff's denial also noted, "the incident in question occurred within an inmate living unit, where there is no camera; therefore, there are no video recordings of the actual incident." The New Jersey State Prison Administrator also denied Brown a polygraph examination on July 24, 2009, because there were "no issues of credibility[,] . . . no findings of new evidence," and for the reasons stated in the Sheriff's denial of July 16, 2009.

The hearing officer found that Brown replied with vulgarity when ordered to get dressed for roll call, and then,

[a]t that time the inmate charged toward Sgt. Meehan and punched him in the chest. Brown then pushed C[pl.] Teller and continued to swing and throw punches at the two officers. The staff reported that they struck the inmate while attempting to restrain him.

The hearing officer indicated that Brown "argued that the officer had assaulted him, however, could not present any evidence to support that claim." The hearing officer noted that Brown made no statement and declined to confront adverse witnesses. The hearing officer found that "[b]ased on the evidence presented there [was] substantial evidence to support the charge[s]." The Department upheld the July 29, 2009 decision of the hearing officer, finding that it "was based on substantial evidence."

Brown argues the following points on appeal.

I.

THE FINAL AGENCY[] DECISION WAS ARBITRARY AND CAPRICIOUS, BECAUSE IT WAS BASED ON A HEARING WHICH FAILED TO AFFORD INMATE BROWN THE MINIMUM ELEMENTS OF DUE PROCESS REQUIRED IN PRISON DISCIPLINARY HEARINGS.

A. THE APPELLANT WAS NOT AFFORDED THE PROCEDURAL DUE PROCESS REQUIRED BY AVANT V. CLIFFORD, 67 N.J. 496 (1975) AND THEREFORE HIS RIGHTS WERE VIOLATED.

B. THE ADMINISTRATIVE AGENCY'S DECISION TO DENY APPELLANT A POLYGRAPH TEST VIOLATED APPELLANT'S RIGHT TO DUE PROCESS.

II.

THE FINAL HEARING DISPOSITION CANNOT BE UPHELD BECAUSE THE DEPARTMENT OF CORRECTIONS DID NOT FOLLOW ITS OWN PROCEDURES IN PROVIDING PROTECTION FOR THE INMATE, AS SUCH THE ALLEGATIONS AGAINST APPELLANT SHOULD BE VACATED.

A. APPELLANT WAS DENIED HIS RIGHT TO INVESTIGATION OF THE ALLEGED INFRACTIONS HE VIOLATED [sic] PURSUANT TO N.J.A.C. 10A:-4-9. 5 AND N.J.A.C. 10A:4-9.6, AND THEREFORE HE WAS NOT AFFORDED HIS DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL HEARING.

B. THE HEARING OFFICER'S DECISION WHICH RENDERED APPELLANT GUILTY OF VIOLATING PRISON PROHIBITED ACTS WAS NOT BASED ON THE REQUIREMENT OF N.J.A.C. 10A:4-9.15(a) AND THEREFORE ARE [sic] FUNDAMENTALLY UNFAIR, SUCH THAT THE ALLEGATIONS AGAINST APPELLANT SHOULD BE DISMISSED.

C. APPELLANT WAS DENIED HIS RIGHT TO CONFRONTATION AND CROSS EXAMINATION IN PRESENTATION OF HIS CASE, PURSUANT TO N.J.A.C. 10A:4-9.14, AND THEREFORE WAS NOT AFFORDED HIS DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL HEARING.

The Department has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, it has been noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Prisoners are, however, entitled to certain limited protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of counsel substitute, and a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed. Id.at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995); Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995).

The hearing officer prepared adjudication forms for the two infractions after the adjudication, which indicate that Brown gave no statement, declined to call any eyewitnesses and withdrew his request to confront the witnesses against him. The Department argues that because Brown's counsel substitute signed these adjudication forms, agreeing with the pre-printed statement that the hearing officer's information "accurately reflects what took place at the inmate disciplinary hearing," Brown should be precluded from raising these issues. Indisputably, however, Brown named two witnesses who could confirm his injuries and sought a copy of the court order and information concerning inmate witnesses prior to the hearing. Only a few days after the adjudication, on August 3, 2009, Brown appealed to the prison administrator, raising among other issues, that inmate "Luis Timayo [sic]", an eyewitness, was not permitted to give a statement.

Tamayo's certification, provided by Brown on appeal, indicates that Brown did respond to the corrections officer's direction to "[c]ount up" with profanity. Tamayo then relates that Brown was beaten by the officers without further provocation. Tamayo also relates that he was interviewed by Passaic County Jail investigators and told them what happened. The Sheriff, in a February 2, 2010 letter, acknowledged to Brown's appellate counsel that his investigators took an audio/video interview of Tamayo, which the Sheriff indicates is inconsistent with this certification. This interview has not been made available to Brown or to us on appeal.

We conclude that the hearing officer should have considered the statement of the eyewitness, Luis Tamayo, before ruling on the assault charges against Brown. The institution was aware that Brown sought Tamayo's statement, and Tamayo was accessible to the institution as he was also incarcerated.6 Should Tamayo's statement be inconsistent with that of the Passaic County corrections officers, the Department should then reconsider administering a polygraph test to Brown.

Pursuant to N.J.A.C. 10A:3-7.1(a), the prison administrator may authorize a polygraph examination to be performed by the Department's Special Investigations Division when

(1) there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or (2) as part of a reinvestigation of a disciplinary charge, when the Administrator is presented with new evidence or finds serious issues of credibility.

N.J.A.C. 10A:3-7.1(c) provides that "[a]n inmate's request for a polygraph examination shall not be sufficient cause for the granting of the request." Although a prison administrator's decision to authorize a polygraph requested by an inmate is discretionary, the "administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). We have noted that "[i]mpairment may be evidenced by inconsistencies in the [senior corrections officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf." Ibid. Therefore, if Tamayo's statement contradicts the corrections officers' statements, a polygraph may well be appropriate under the criteria set forth in Ramirez.

To the extent that we have not specifically addressed any of Brown's other arguments, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We conclude that the Department's decision was arbitrary and capricious only because the hearing officer failed to consider Tamayo's written statement. However, because a rehearing is necessary, we direct that clear copies of the photographs of Brown after the altercation be provided to him. His appellate counsel has obtained other available records pertaining to the incident. Brown chose not to make a statement or confront the witnesses against him. He will be permitted to revisit these decisions on remand in light of any new evidence now available to him. The Department should also reconsider administering a polygraph to defendant if Tamayo's statement conflicts with other evidence.

Reversed and remanded for further proceedings consistent with this opinion.

1 On July 9, 2009, Brown was also charged with *.501, failing to stand count, *.304, using abusive or obscene language to a staff member and *.256, refusing to obey an order of any staff member. The hearing officer did not adjudicate these charges. The Department indicates in its brief that these charges were "downgraded . . . to 'On-the-Spot' corrections pursuant to N.J.A.C. 10A:4-9.16(b)."

2 The broken tooth is mentioned in the Department's brief and reflected in the St. Joseph's Hospital medical records requested by Brown, which were not received in time to be reviewed by the hearing officer.

3 Prior to the disciplinary hearing, Brown sought to have the judge and his mother interviewed as witnesses to his injuries. The Department denied this request as neither person was an eyewitness to the altercation. The order for protective custody was supplied by Brown for the first time on appeal. The Department at no time disputed Brown's injuries.

4 We have reviewed these photocopies and agree that the photographs are too poorly reproduced to be of any value.

5 Brown indicates that the Office of the Public Defender conducted an investigation.

6 The record is not clear as to when Tamayo was interviewed by the Sheriff, but apparently the Sheriff had ready access to Tamayo.