JAMES K. CAINES 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NOT FOR PUBLICATION WITHOUT THE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-2657-10T4

JAMES K. CAINES,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________

April 20, 2012

Submitted March 27, 2012 - Decided

Before Judges Nugent and Carchman.

On appeal from the New Jersey Department of Corrections.

James K. Caines, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney forrespondent (LewisA. Scheindlin, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Appellant James K. Caines, an inmate at New Jersey State Prison in Trenton, appeals from a final decision of the Department of Corrections finding him guilty of violating .256, "refusing to obey an order of any staff member." N.J.A.C. 10A:4-4.1. As a result of the violation, appellant received a sanction of ninety days' loss of television privileges, which was suspended in part, as well as ninety days' loss of recreation privileges. We affirm.

These are the relevant facts. On October 14, 2010, at 11:00 a.m., Senior Corrections Officer Pagan was stationed in a cage about twenty feet from the recreation yard, quad two. At the completion of recreation time, Pagan ordered inmates in the yard, including appellant, to exit the yard and return indoors. Pagan issued this order five times, and appellant refused to obey each time. Pagan responded to appellant's conduct by notifying a sergeant, and yard movements were stopped to attend to this problem.

Pagan charged appellant with a .256 violation for "refusing to obey an order of any staff member." On October 15, 2010, Sergeant Poretti served the charge on appellant, conducted an investigation, and referred the charge to a hearing officer for further action.

A disciplinary hearing took place on October 18, 2010. During the hearing, appellant did not request counsel substitute, and he pleaded not guilty. The hearing officer played a video recording of the events of October 14, 2010 in the recreation yard. Appellant testified that when the recreation yard gate opened that day, he left. He claimed that he could not tell what was going on in the video. The hearing officer gave appellant the opportunity to name witnesses, and appellant declined. The hearing officer also gave appellant the opportunity to confront adverse witnesses, and again, appellant declined. After reviewing the evidence and hearing all the testimony, the hearing officer found appellant guilty of the .256 charge.

On October 19, 2010, appellant filed an administrative appeal of the hearing officer's decision. The administrator upheld the decision of the hearing officer. This appeal followed.

On appeal, appellant raises the following issues:

POINT I

THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE, IN VIOLATION OF THE CODE.

POINT II

THE IMPOSED SANCTION WAS EXCESSIVE, IN VIOLATION OF THE CODE.

POINT III

APPELLANT WAS DENIED DUE PROCESS DURING THE AGENCY APPEAL, IN VIOLATION OF THE CODE.

The scope of our review of an agency decision is limited.

"An appellate court ordinarily will reverse the decision of an

administrative agency only when the agency's decision is

'arbitrary, capricious or unreasonable or [] is not supported

by substantial credible evidence in the record as a whole.'"

Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div.

2005) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80

(1980)). "'Substantial evidence' means 'such evidence as a

reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super.

186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas

Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of

an administrative agency is entitled to deference, our appellate

obligation requires more than a perfunctory review." Blackwell

v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).

When reviewing a determination of the Department in a matter involving prisoner discipline, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. See McDonald v. Pinchak, 139 N.J. 188, 194-96 (1995).

Prison disciplinary hearings are not criminal prosecutions,

and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975).

See also Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243,

252 (App. Div. 2010). However, prisoners are entitled to

certain limited protections prior to being subject to

disciplinary sanctions. These rights, defined in Avant,

include: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections; (3) a limited right to call witnesses and present documentary evidence in defense of the charges; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (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. Supra, 67 N.J. at 525-33.

The New Jersey Supreme Court has reaffirmed the procedural due process requirements articulated in Avant. See McDonald, supra, 139 N.J. at 192. See also Jacobs v. Stephens, 139 N.J. 212, 215 (1995). Indeed, the Court has found that the regulations currently in place "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.

Here, appellant was appropriately charged and provided with notice, a hearing and an appellate procedure. We find no deprivation of his due process rights.

We reach the same results regarding the merits. The proofs before the DOC and at the various levels of review established that appellant had failed to obey the Senior Corrections Officer's order at least five times. The determination of guilt was supported by substantial credible evidence in the record.

Finally, while appellant asserts that the imposition of sanctions violated N.J.A.C. 10A:4-5.1, we note that appellant has already received his discipline, so the issue addressing the sanctions is moot.

Affirmed.