QUDDOOS FARRA'D 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NOT FOR PUBLICATION WITHOUT THE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-4967-09T1

QUDDOOS FARRA'D,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

December 13, 2011

Submitted October 26, 2011 - Decided

Before Judges Graves and Koblitz.

On appeal from the New Jersey Department of Corrections.

Quddoos Farra'd, appellant pro se.

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

PER CURIAM

Appellant Quddoos Farra'd, an inmate at the New Jersey State Prison, is serving a thirty-five-year prison term with a seventeen year, six-month period of parole ineligibility. He appeals the June 15, 2010 decision of the Department of Corrections (Department) imposing discipline for "lying [or] providing [a] false statement to a staff member." N.J.A.C. 10A:4-4.1(a)*.305. Farra'd was sanctioned to fifteen days detention, ninety days administrative segregation, sixty days loss of commutation time and twenty-five days loss of recreation privileges. On appeal, Farra'd argues that the hearing officer rendered an arbitrary and capricious finding of guilt unsupported by substantial evidence, that an allegation stemming from an inmate statement in a complaint form cannot form the basis for a disciplinary action and that the Department failed to provide appropriate due process, especially in light of Farra'd's status as an elected inmate representative. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The facts which gave rise to the allegation against Farra'd are largely uncontested. On May 19, 2010, at approximately 12:45 p.m., Senior Corrections Officer (SCO) Patrick Scully ordered Farra'd and the other inmates in his housing unit to lock into their cells because the Department Commissioner was coming to tour the prison. Later that day, Farra'd submitted a written Inmate Remedy Form (IRF) captioned "problem [with] Sgt. Aronow," claiming that SCO Scully ordered Farra'd to lock into his cell "per Sgt. Aronow" as part of a pattern of harassment by Aronow against Farra'd. Farra'd indicated this lock-in order interfered with his "Wing Representative duties."1 In a written report, SCO Scully denied that Aranow gave the order to lock in. He also denied telling Farra'd that the order came from Aronow.

The initial adjudication hearing was postponed because Farra'd requested the opportunity to confront witnesses and a polygraph examination. Farra'd represented himself and did not seek the assistance of a counsel substitute. The hearing officer rejected the witness statements prepared by Farra'd, but his witnesses were permitted to give written statements obtained through the Department pursuant to regulation. N.J.A.C. 10A:4-9.5(e) and (f).

On appeal, Farra'd raises the following issues,

POINT I

Accuser erred in writing & hearing officer erred in processing a disciplinary charge against an alleged false statement in a submitted remedy complaint form by not having the authority or jurisdiction to hear a cross - claim

POINT II

Hearing officer erred in not investigating and allowing a retaliation defense

POINT III

Hearing officer erred in the denial of request for evidence of the activity schedule and 3 wing log denying due process

POINT IV

Hearing officer erred in hearing a charge against an elected representative while performing duties in which was official immunity N.J.A.C. 10A:12-3

POINT V

Hearing officer finding of guilt was against the weight of the evidence being arbitrary & capricious

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).

In Point I of his brief, Farra'd argues that the Administrative Code prevents the Department from disciplining an inmate for the submission of an IRF. The code provides in pertinent part:

The submission of a "Routine Inmate Request," . . . shall not result in cause for coercion, punishment, retaliation, reprisal, or retribution against any individual.

[N.J.A.C. 10A:1-4.4(b)

We agree that the mere submission of an IRF in itself shall not result in discipline. If the content of the IRF contains a lie or knowingly false statement, however, the inmate may be disciplined pursuant to *.305. This section of the Administrative Code was not intended to grant immunity to inmates for intentionally reporting false information, but rather to allow inmates to voice their genuine concerns without fear of retaliation.

In Point II of his brief, Farra'd argues that the "hearing officer['s] refusal to hear [his] retaliation defense violated [his] substantive and procedural due process in clear violation of N.J.A.C. 10A:4-9.13[(a)]." That provision of the Code states in pertinent part:

 
Inmates shall be allowed to call a fact witness(es) (as this term is defined at N.J.A.C.10A:4-1.3) and present documentary evidence in their defense. The Disciplinary Hearing Officer or Adjustment Committee has the discretion to keep the disciplinary hearing within reasonable limits. If requested, an inmate or counsel substitute shall be provided the opportunity to call and question in-person a fact witness(es) unless the Disciplinary Hearing Officer or Adjustment Committee determines that calling said witness(es) may be:

. . . .

4. Harassing or retaliatory against another . . .

[N.J.A.C. 10A:4-9.13(a).]

Farra'd claims that two inmate witnesses, both of whom confirmed that SCO Scully stated Aronow ordered him to lock in the inmates, were fired as "wing porters" after providing written statements favorable to Farra'd. Farra'd argues that this claim of retaliation against his witnesses should have been investigated as part of his disciplinary hearing. We find this argument unconvincing. This section of the code does not instruct the hearing officers to allow inmates to present evidence of retaliation; rather, it instructs the officers to disallow witnesses called by the inmate in retaliation. The hearing officer has wide discretion to keep the disciplinary hearing within reasonable limits. N.J.A.C. 10A:4-9.13(a).Certainly the issue of whether or not the Department retaliated against witnesses supportive of Farra'd is not directly relevant to the infraction and could properly be excluded.

Farra'd also argues that he should have been afforded the opportunity to take a polygraph examination. 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." This provision "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). The prison administrator did not abuse his discretion in denying Farra'd's request for a polygraph test.

In Point III, Farra'd argues that the denial of his request for the institutional activity schedule for May 19, 2010, deprived him of the opportunity to demonstrate that the Commissioner did not arrive until after SCO Scully was off- duty, thereby undercutting SCO Scully's credibility. Farra'd was given the opportunity to cross-examine SCO Scully. The activity schedule is not directly relevant to the underlying allegation and its exclusion was within the discretion of the hearing officer.

In Point IV, Farra'd argues that as an inmate representative, he is immune from any prosecution. In support of this claim, Farra'd relies on N.J.A.C. 10A:12-3.1, as well as prison memoranda that authorize "Wing Reps" "to conduct business associated with their positions throughout the course of the day from 6:30 [a.m.]. . .until 9:00[p.m.] . . ." SCO Scully testified that Farra'd was loitering rather than conducting inmate representative business at the time of the lock-in. The hearing officer accepted SCO Scully's testimony. Thus, including Farra'd in the general order to lock in did not violate the policy that inmate representatives should be able "to voice [inmate] comments and concerns on issues affecting the inmate population" to the correctional facility administration. N.J.A.C. 10A:12-3.1(a)2. Inmate representatives are not immune from disciplinary action, however, when they make false statements to a staff member.

Finally, Farra'd argues in Point V that the finding of the hearing officer was arbitrary and capricious. Our review of decisions in prison disciplinary proceedings is circumscribed by principles that require us to defer to determinations that are supported by sufficient credible evidence and are neither arbitrary nor capricious. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005); Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005). N.J.A.C. 10A:4-9.15(a) provides that "a finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." SCO Scully stated that he locked down the unit on his own authority because the Commissioner was coming later that day. He stated he included Farra'd in the lock-down because Farra'd was not performing the duties of an inmate representative at the time. The hearing officer found that SCO Scully answered all of Farra'd's questions without hesitation, while some of Farra'd's inmate witnesses changed their version of events during questioning by Department staff. The hearing officer found SCO Scully's statement to be more credible than Farra'd's statement. We generally defer to the credibility assessments of the fact-finder. Clowes v. Terminix Int'l, 109 N.J. 575, 587 (1988); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). The hearing officer, on the basis of SCO Scully's testimony and that of several inmates, found that Farra'd was not individually targeted and that Sgt. Aronow did not give the order to lock down the unit. Thus, the hearing officer concluded that Farra'd was not truthful when he stated in the IRF that Aronow ordered him to lock in as part of a pattern of harassment, and there is sufficient credible evidence to substantiate that determination.

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

1 Pursuant to N.J.A.C. 10A:12-3.2, inmates are permitted to elect representatives.