1MARION JACOBS 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NOT FOR PUBLICATION WITHOUT THE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-2332-10T41

A-2575-10T4

MARION JACOBS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________

March 26, 2012

Submitted March 6, 2012 - Decided

Before Judges Yannotti and Guadagno.

On appeal from the New Jersey Department of Corrections.

Marion Jacobs, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Emily A. Samuels, Deputy Attorney General, on the brief in A-2332-10; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief in A-2575-10).

PER CURIAM

Marion Jacobs, an inmate incarcerated at New Jersey State Prison, appeals from two final administrative determinations by the Department of Corrections imposing disciplinary sanctions for committing prohibited acts, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

I.

The First Violation

On November 2, 2010, Senior Corrections Officer (SCO) Elly2 ordered Jacobs to transfer from housing unit 7up to unit 2right. According to SCO Elly, Jacobs refused to accept the housing assignment and was charged with disciplinary infraction .254, "refusing to work, or to accept a program or housing unit assignment." N.J.A.C. 10A:4-4.1(a). He was also charged with *.306,3 "conduct which disrupts or interferes with the security or orderly running of the facility." According to SCO Elly's report, the inmate's refusal to transfer "caused a delay in the return of the morning yard movement, while he was removed from the tier." On November 3, 2010, Officer Purrit investigated the incident and confirmed that SCO Elly's report was accurate. Jacobs was then given a copy of the disciplinary charge.

Jacobs pled not guilty to both charges and was offered the assistance of a counsel substitute.4 A disciplinary hearing was held on November 5, 2010, before a hearing officer who reviewed the investigatory file containing reports from four officers. While Jacobs admitted that the SCO told him that he had to move housing units, he denied refusing the order: "I didn't do anything and I didn't say anything." He declined the opportunity to confront and cross-examine witnesses. The hearing officer found that even if Jacobs did not verbalize a refusal to comply with the order, "this does not mean he complied with officer's order." She credited the SCO's report that Jacobs failed to comply with the new housing assignment and found him guilty of the .254 violation. She sanctioned Jacobs to ten days detention, thirty days loss of recreational privileges and ninety days administrative segregation.

The *.306 charge was downgraded and Jacobs was sanctioned to the loss of an additional five days of recreational privileges. The sentences were suspended to allow Jacobs to comply with the housing assignment.

On November 8, 2010, Jacobs filed an administrative appeal claiming violations of standards, misinterpretation of the facts and seeking leniency. On November 12, 2010, an assistant superintendent reviewed the matter and upheld the hearing officer's decision, finding that the facts were not misrepresented and appellant was not entitled to leniency because of his disciplinary history.

The Second Violation

On November 16, 2010, Jacobs was ordered by SCO Johnson to move to a new housing unit, 3EE. According to the SCO, he refused, stating, "I am not going." On the following day, Jacobs was served with a copy of a disciplinary charge alleging another violation of .254. On November 19, 2010, he appeared before a hearing officer and was offered counsel substitute, which he declined. When offered the opportunity to make a statement Jacobs said:

An order was never given to me to go to 3EE. I never refused to move to 3EE. I never spoke to Sgt. Goode. There is no description by Officer Johnson of how I refused, comment or gesture. I object to his report stating how I refused. It is not noted on my charge. I object to this report being used as evidence. Report was written on the 19th. He never gave me an order.

Jacobs was given the opportunity to call witnesses on his own behalf and cross examine the witness against him but declined both offers.

For reasons not apparent on the record before us, but perhaps in response to the inmate's challenge to the sufficiency of the disciplinary charge, the hearing officer directed SCO Johnson to prepare a Special Custody Report (SCR). The SCR dated November 19, 2010, contains the statement attributed to Jacobs, "I/M [inmate] stated I am not going," which was not included in the original disciplinary report.

The hearing officer then credited SCO Johnson's version of the events, finding that Jacobs refused the order to move. She reasoned that the SCO had "nothing to gain by falsifying reports" and that inmates cannot choose where they want to live. She found Jacobs guilty of the infraction and imposed sanctions of fifteen days detention and ninety days of administrative segregation.

Jacobs filed an administrative appeal and on December 8, 2010, the hearing officer's decision was upheld by an assistant superintendent, who found that there was compliance with the administrative code on discipline and that the sanctions were appropriate. There was also a finding that the SCR prepared on the day of the hearing by the SCO was permissible.

Appellant claims that his due process rights were violated because the original disciplinary report was deficient as it did not contain the statement attributed to him and did not allege facts sufficient to support the charge. He also argues that the creation of the supplemental SCR on the day of the hearing was improper and, without that report, "the .254 charge lacked any substantial evidence to find appellant guilty of charge."

II.

As to both proceedings, appellant challenges the sufficiency of the charging documents. In the first, he claims that the charge, "inmate refused to go to 2right as a unit assignment," is insufficient as it does not allege a verbal refusal to comply with the order. As to the second charge, "I/M Jacobs 47408 refused an order to move to 3EE housing unit," Jacobs raises the same claim but also maintains that it was improperly amended by the creation of the supplemental SCR.

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). Agency decisions carry with them a presumption of reasonableness. City of Newark v. Natural Resource Council, 82 N.J. 530, 539, cert. denied, 449 U.S 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it 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).

Inmates subject to disciplinary proceedings do not receive the full spectrum of rights accorded to criminal defendants, but must be accorded a minimum level of due process. Avant v. Clifford, 67 N.J. 496, 523 (1975). These rights include notice in writing of the allegations against the inmate at least twenty-four hours before the hearing. Id. at 525. N.J.A.C. 10A:4-9.2 addresses the notice inmates are entitled to:

The disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances. The report shall be delivered by the reporting staff member or the investigating custody staff member. The report shall be signed by the person delivering it and the date and time of delivery shall be noted. The inmate shall have 24 hours to prepare his or her defense.

Both disciplinary reports were sufficient to advise Jacobs of the nature of the infraction he was being charged with as they contained the date, time and location of the alleged offense, the name of the charging officer, and the administrative code citation and title of the prohibited act. Due process requires written notice that informs an inmate of the charges and enables him to marshal the facts and prepare a defense. Avant, supra, 67 N.J. at 523. Upon receipt of the evidence, Jacobs did not request additional time, nor does he argue that he had inadequate time to marshal the facts or prepare his defense. We conclude that the notice given in both matters was adequate.

Moreover, the facts alleged in both disciplinary reports were sufficient to support the charges of refusal to accept a housing assignment. In arguing that the reports were deficient, appellant's reliance on N.J.A.C. 10A:4-9.15 is misplaced. That section addresses the evidence required at a disciplinary hearing, not the requirements of a disciplinary report, which can be found at N.J.A.C. 10A:4-9.1. That section provides in pertinent part:

(a) When a violation of a prohibited act as identified in N.J.A.C. 10A:4-4, Inmate Prohibited Acts has occurred, the staff member who witnessed it or who has probable cause to believe that a prohibited act has occurred shall prepare Form 259 Disciplinary Report and forward it to the appropriate correctional supervisor.

[N.J.A.C. 10A:4-9.1]

Both disciplinary reports contain allegations that the inmate refused to comply with a housing assignment. We find no merit in appellant's contention that either report was deficient.

As to appellant's claim that the disciplinary report was improperly amended with the SCR, we note that the only information contained in the SCR that does not appear in the original disciplinary report is the inmate's statement. The original complaint was legally sufficient without reference to the statement made by Jacobs. While there was no need for the hearing officer to order the preparation of the supplemental SCR, she had the right to require further investigation of the charges if she was of the opinion that the report was not properly made out or the facts and circumstances were not sufficient to set forth a basic understanding of the incident. N.J.A.C. 10A:4-9.6.

Both determinations that Jacobs refused to accept a housing assignment were supported by substantial credible evidence in the record and were not arbitrary, capricious or unreasonable.

A

1 These two appeals, calendared back-to-back, have been consolidated for the purpose of this opinion.

2 The first names of the officers are not included in the record before us.

3 Under N.J.A.C. 10A:4-4.1(a), prohibited acts preceded by an asterisk (*) are considered the most serious and result in the most severe sanctions.

4 While respondent's brief states that Jacobs declined counsel substitute, the Adjudication of Disciplinary Charge form indicates that Jacobs requested and was assigned counsel substitute.