MORTIMER HETSBERGER 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NOT FOR PUBLICATION WITHOUT THE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-3692-09T2

MORTIMER HETSBERGER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________

April 19, 2011

Submitted: April 6, 2011 - Decided:

Before Judges Axelrad and J. N. Harris.

On appeal from a Final Decision of the New Jersey Department of Corrections.

Mortimer Hetsberger, appellant pro se.

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

PER CURIAM

Mortimer Hetsberger appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of prohibited act *.002, assaulting any person, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed 15 days detention, 365 days administrative segregation, 365 days loss of commutation credit and 30 days loss of recreation privileges. Following an administrative appeal, an assistant superintendent of the DOC upheld the decision of the hearing officer, finding it based on substantial evidence and concluding no leniency should be afforded to appellant. Appellant then filed an appeal of the agency's decision.

On appeal, appellant argues his due process rights were violated because he was precluded from attending a hearing occurring on February 16, 2010, and was denied his request for a polygraph examination. Appellant also argues there was a lack of substantial evidence in the record to support the hearing officer's finding of guilt, and challenges the sanctions imposed as disproportionate to the offense. We reject appellant's arguments and affirm.

Appellant was accused by a fellow inmate of an assault occurring on January 31, 2010. The event allegedly occurred in the four-man cell inhabited by appellant, the victim, and two others who were purportedly asleep at the time. According to the reports, Senior Corrections Officer (SCO) Lemmon heard a commotion in the area of appellant's cell, and as he headed upstairs to investigate, he passed appellant running downstairs. In the cell, the corrections officer observed inmate Perry sitting on his bed "with blood on the left side of his face nearest his left eye." Perry reported that appellant hit him in the face. Sergeant Goslin arrived and noted that Perry "had a lump and a bleeding gash over his left eye," with "blood on his clothes and on the floor." Perry informed him as well that he had been struck in the head by appellant, his cellmate.

As three backup corrections officers walked up the stairs, they observed appellant heading upstairs towards his cell. Two of the officers noted in their reports that they observed Perry with a bleeding cut over his left eye. As Perry reported that his cellmates had been smoking marijuana, the cell was searched with negative results for contraband and the four men were urine tested, with negative results.

An investigation revealed that the other two cellmates apparently did not observe the incident. Inmate Wright stated only that he "rolled over" and, seeing that Perry was bleeding, left the room. Inmate Benthall was found by a responding officer in his bed, covered up with a blanket. He represented that both he and Wright were asleep when the incident occurred.

Both Perry and appellant were given medical examinations. Perry's examination confirmed the injuries to his left eye as observed by the officers, while appellant's examination revealed no injuries. Appellant was thus charged with a *.002 prohibited act.

Appellant also provided a statement during the investigation. He claimed SCO Lemmon had given him permission to use the bathroom, and when he returned, the officers had already reported to his cell. According to appellant, "[b]efore [he] went to the bathroom there was no incident." As evidence of his innocence, appellant noted he was searched for scars and blood on his body and clothing, and none were found.

Appellant presented confrontation questions to SCO Lemmon, including whether he gave appellant permission to use the bathroom. The corrections officer answered that question in the negative, responding in writing at the hearing on February 4, 2010 to all questions posed by appellant. Appellant also requested statements from two other corrections officers about whether any inmates had requested room reassignment due to problems with Perry, to which they responded in the negative. Appellant additionally requested his other two cellmates be called as witnesses; their statements were entered into evidence.

Perry also provided a statement, claiming that shortly before the incident appellant returned to their room and began arguing with him over the television volume. He also taunted Perry about being incarcerated at sixty-years of age. Perry told appellant to "not smoke marijuana if it made him act like he was acting." According to Perry, appellant continued to harass him and threatened to hit him, putting on his gloves and sneakers "indicating that he was going to do this and that to [him]." Perry further stated that appellant then went into the hall, returned to the room, and punched Perry in the eye and nose while Perry was "sitting on [his] bed trying to ignore him." In response to appellant's confrontation questions, SCO Lemmon noted that work gloves were found with appellant's property.

Appellant subsequently requested a polygraph examination. He asserted that Perry's statement to Sergeant Goslin that he observed appellant smoking marijuana in the room had proved incorrect based on the urine test and thus argued that Perry was "completely untrustworthy and was trying to frame [him]." Appellant also claimed the other inmates' and officers' statements confirmed he was not upstairs in the room when SCO Lemmon heard the loud noise. The administrator denied the request by memo of February 16, 2010, concluding as follows:

the disciplinary report, confrontation package and supplemental documentation provide sufficient information about the incident for the Inmate Disciplinary Hearing Officer to make an informed decision during the adjudication process.

Inasmuch as the statements provided by staff [are] considered to be credible, a fair and impartial disciplinary hearing and informed decision can be rendered by the Inmate Disciplinary Hearing Officer through utilizing the above listed documentation. Therefore the request for a polygraph examination is denied.

On leave granted to supplement the record, Hearing Officer Matthew Ruggiero certified to the following procedural history:

2. From February 2 to February 16, 2010, I was the Disciplinary Hearing Officer assigned to conduct the adjudication hearing of Appellant in this matter . . . for prohibited act *.002 (assaulting any person), originally charged on January 31, 2010.

3. [Appellant] was physically present during all adjudication hearing dates. He either directly participated or at least was given the opportunity to participate in his defense. His written statement was among the documents collected and admitted as evidence in this hearing.

4. [Appellant] was given the opportunity to request statements from other witnesses. He also was given the opportunity to confront an adverse witness, Senior Corrections Officer Lemmon, with cross-examination questions. He took both of these opportunities to produce evidence in his defense.

5. As of Friday, February 12, 2010, all aspects of the hearing were complete, with the exception of [appellant's] [] request for a polygraph examination . . . pending the [Bay State Prison] administration's decision.

6. February 12, 2010 was a mandatory furlough day for State employees. In addition, the following Monday, February 15, 2010, was a State holiday. As a result, I had to work at my home during that time period. At that point, [appellant] was about to serve his maximum 15-day period in prehearing detention.

7. On February 16, 2010, I received the memorandum from BSP administration denying [appellant's] request for a polygraph examination. At that point, I believed that all evidence was collected and all due process procedures were followed. I was prepared to enter a finding of guilty against [appellant], based on the summary of evidence collected.

8. Out of concern that [appellant] was about to complete his fifteenth day of prehearing detention, I faxed my finding of guilty and summary of reasons to his attention at BSP, so that he would receive it more quickly, as opposed to my having to travel back down to BSP to personally present it to him.

In finding appellant guilty of prohibited act *.002, the hearing officer provided a detailed factual basis in his February 16, 2010 report. He expressly found that appellant's claim he was not in the room where and when Perry was assaulted was not factually supported based on SCO Lemmon's observation of appellant heading downstairs immediately after the corrections officer heard the noise of the apparent assault. Moreover, the two other cellmates did not provide an alibi for appellant as neither declared he was not present when the assault occurred. The hearing officer further noted that both appellant and Perry admitted to an earlier argument and thus there was potential motive for appellant to act aggressively towards Perry. He also found compelling Perry's prompt identification of appellant as the person who assaulted him, which injuries were apparent.

Ruggiero did consider appellant's attack on Perry's credibility based on the false accusation about marijuana, but concluded that although it raised "some suspicion" of Perry's credibility, it was not "sufficient to totally discount Perry's identifying [appellant] as his assailant." The hearing officer also found credible SCO Lemmon's denial that appellant asked or was given his permission to use the restroom, thus belying appellant's explanation for leaving his room and heading downstairs. Ruggiero additionally found appellant's credibility was challenged by his inability to provide proof to support his claim that a number of other inmates complained about being housed with Perry in the face of the denial of same by the two officers who responded to appellant's written questions. Accordingly, the hearing officer concluded there was sufficient evidence in the record to substantiate the assault charge against appellant.

We first address appellant's due process challenges. In a disciplinary proceeding while imprisoned, an inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975); see also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed, and, in certain circumstances, the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-33.

Here, all of the procedural requirements were met. Although it may have been preferable for there to have been a hearing on February 16, 2010, or shortly thereafter with appellant present, even if nothing additional were presented, we are not convinced failure to do so was a denial of due process. Appellant was present for all material hearings and had a full opportunity to present his defense. Along with his statements and the statements of his two other cellmates, the corrections officers answered appellant's cross-examination questions. Thus, the hearing officer had a full record, consisting of a variety of investigation reports, medical records, inmate statements, and confrontation questions. As is evident from the hearing officer's detailed findings, he was aware of appellant's credibility challenges as well as the standard of substantial credible evidence in the record so there are no competent additional evidence or arguments that appellant was precluded from presenting as a result of Ruggerio completing the hearing prior to February 16, 2010. As Ruggerio noted, he would have proceeded with the hearing after that date only if the administration had approved appellant's request for a polygraph. Once that request was formally denied, the hearing officer promptly entered a finding of guilty and prepared his statement of reasons based on the extensive evidence that had already been admitted.

We also reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997). In addition, a polygraph is clearly not required on every occasion that an inmate denies the disciplinary charge against him, rather the request should be granted "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. N.J. Dep't of Corrs., 382 N.J. Super. 18, 20, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.

In appellant's case, the record does not demonstrate any issues of credibility that could not have been determined by the disciplinary proceeding as conducted. Appellant requested and received confrontation of the three corrections officers, made a statement on his own behalf, and presented the statements of his other two cellmates. He accurately pointed out a credibility issue stemming from Perry's unfounded assertion of marijuana use, which the hearing officer considered in evaluating the evidence. The officers presented sufficient corroborating circumstantial evidence as to appellant's assault on his cellmate, including their visual observations of appellant's movements immediately after the incident and their observations of Perry's physical injuries. Thus, the absence of a polygraph did not compromise the fundamental fairness of the disciplinary process.

We now turn to appellant's substantive challenges to the adjudication and sanction. Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or is unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (holding the court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). In this case, the hearing officer made express credibility assessments and relied on the testimony of the officers in corroborating reports, as well as the statement of the victim, to conclude that appellant's story was not credible. Thus, as there is substantial, credible evidence in the record to support the agency's adjudication of guilt of this disciplinary infraction, there is no basis to disturb that determination.

Nor do we discern any basis to interfere with the sanctions imposed by the agency. The hearing officer expressly found appellant's actions were aggressive, there was a risk of more serious injury, and he demonstrated no accountability for his actions. Appellant struck an inmate, apparently many years his senior, in the left eye, causing blood to pour down his face and onto his clothes and on the floor. Appellant suffered no injury, which strongly suggests his attack was entirely one-sided and unprovoked. The sanction is well within the administrative authority to punish appellant and deter this type of conduct for the safety and security of the prison.