MILTON DURHAM 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NOT FOR PUBLICATION WITHOUT THE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-2788-09T3

MILTON DURHAM,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________________________________

March 13, 2012

Submitted February 16, 2012 - Decided

Before Judges Graves and Koblitz.

On appeal from the New Jersey Department of

Corrections.

Milton Durham, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney

for respondent (Melissa H. Raksa, Assistant

Attorney General, of counsel; Christopher C.

Josephson, Deputy Attorney General, on the

brief).

PER CURIAM

Milton Durham, a state prison inmate, is serving a forty-year term with twenty years of parole ineligibility for committing five first-degree aggravated sexual assaults. He appeals from a final decision of the Department of Corrections (DOC) finding him guilty of prohibited act .053, indecent exposure, in violation of N.J.A.C. 10A:4-4.1. We affirm.

The charge against Durham was based on an incident that occurred at the New Jersey State Prison on November 19, 2009. At approximately 10:30 a.m., Senior Corrections Officer (SCO) Schlusselfeld and SCO Schwartzer escorted Durham to a prison medical clinic for a routine examination by a nurse. According to the nurse who examined Durham and both corrections officers, while Durham was at the clinic he exposed his penis to the nurse.

Following a disciplinary hearing on November 23, 2009, which Durham did not attend, the hearing officer found him guilty of indecent exposure. Durham was sanctioned with fifteen days of detention with credit for time served, ninety days in administrative segregation, sixty days' loss of commutation time, and fifteen days' loss of recreation privileges. The hearing officer noted that Durham had "10 prior similar infractions."

On November 24, 2009, Durham filed an administrative appeal in which he claimed that he did not refuse to attend his hearing. Assistant Superintendent Drumm upheld the guilty finding and the imposition of sanctions on December 7, 2009. However, he did not specifically address Durham's claim that he was not allowed to attend his hearing.

Durham filed a notice of appeal with this court on February 4, 2010. In his merits brief, Durham stated that he was never given an opportunity to appear at his disciplinary hearing, he never signed a waiver of his right to participate in the hearing, and he never refused to attend the hearing. The DOC subsequently moved for a remand to provide Durham with a rehearing. We granted the motion on February 25, 2011.

The remand hearing took place on March 11, 2011. Durham attended the hearing and was found guilty. The hearing officer summarized his findings as follows:

Durham denies guilt at [rehearing] on 3/11/11 to indecent exposure. Per staff report from [the nurse], Durham exposed his penis during a routine medical exam. Penis was exposed and erect. Durham states "she doesn't have any of the dates of me being treated for a rash." [Hearing] was postponed to obtain medical exam of 11-19-09. Medical report was [received] before [hearing] officer left, therefore [hearing] continued same day. Medical report (A6) clearly indicates Durham was being seen for re-eval[uation of] chest pain. Although Page 4 of 7 of A6 indicates [subject] had received medication for "scrotal rash" this does not explain his behavior as [described] in detail on Page 3 of A6. Incident was witnessed by SCO Schlusselfeld (A3) and SCO Schwartzer (A4). Both indicating Durham exposed his penis to [the nurse]. Durham was not in medical to address a scrotal rash but for re-eval[uation] for chest pain. It wasn't until after nurse observed exposed penis and was ordered to leave did Durham say "do you want to see my rash?" Staff reports are clear and relied upon to support charge. Medical report A6 - 7 pages also used.

The second hearing officer reimposed the same sanctions that were originally imposed on November 23, 2009.

In an administrative appeal requesting leniency, Durham stated: "I only exposed my private part/area to [the nurse] because of my rash." In a decision dated March 30, 2011, Assistant Superintendent Anderson noted that Durham was "taken to Medical after [he] complained of chest pains," and Anderson upheld the hearing officer's decision.

On appeal to this court, Durham presents the following arguments:

POINT I

[THE NURSE] IS NOT A STAFF PERSON . . . PURSUANT TO N.J.A.C. 10A:4-9.1(a), PERMITTED TO WRITE INFRACTIONS.

POINT II

DEFENDANT['S] WHOLE ARGUMENT MUST BE DISREGARDED AS IT IS BASED ON THE INTERIM DECISION OF THE [HEARING OFFICER] AND NOT THE FINAL DECISION AND . . . WAS DONE TO AVOID MENTION OF THE FORGED APPEAL SUBMITTED BY THE PERSON WHO PREPARED THE DOCUMENT, [COUNSEL SUBSTITUTE].

POINT III

THE ADMINISTRATIVE DECISION MUST BE REVERSED AS IT RELIES ON FRAUDULENT DOCUMENTS AND FALSE STATEMENTS.

POINT [IV]

VIOLATION OF ANY PROCEDURAL SAFEGUARDS ESTABLISHED UNDER ADMINISTRATIVE, STATE OR FEDERAL LAWS REQUIRES THAT THE FINAL ADMINISTRATIVE DECISION BE REVERSED.

POINT V

APPELLANT WAS NOT PROVIDED EFFECTIVE ASSISTANCE OF COUN[SEL].

POINT VI

THERE ARE NO PROVISIONS UNDER THE N.J.A.C. 10A:4 ET SEQ. THAT RELY ON A PRISONER DETERMINING WHAT CONDUCT IS PROHIBITED BY A RULE THROUGH TRIAL AND ERROR.

POINT VII

THIS INFRACTION IS A CONTINUATION OF [AN] ONGOING CAMPAIGN . . . OF HARASSMENT AND RETALIATION AGAINST APPELLANT.

POINT VIII

DESPITE APPELLANT'S EMPHATIC REQUESTS TO BE TREATED BY A PHYSICIAN OTHER THAN [THE NURSE], SHE CONTINUES TO CALL APPELLANT IN FOR TREATMENT.

After reviewing the record and applicable law, we are satisfied these arguments are clearly without merit, Rule 2:11-3(e)(1)(E), and the decision of the "administrative agency is supported by sufficient credible evidence on the record as a whole." R. 2:11-3(e)(1)(D). We add only the following comments.

A finding of guilt at a disciplinary hearing must be based on "substantial evidence" that the inmate has committed a prohibited act. Avant v. Clifford, 67 N.J. 496, 530 (1975); N.J.A.C. 10A:4-9.15(a). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)); Mead Johnson & Co. v. Borough of S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).

The scope of our review is narrow. We will reverse an agency's decision only if it is arbitrary, capricious, or unreasonable, or it is not supported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); accord Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). Therefore, we must uphold the DOC's decision, even if we would have reached a different result, so long as there is sufficient credible evidence in the record to support the decision. In re Taylor, 158 N.J. 644, 656 (1999); Johnson v. N.J. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) ("We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record.").

In this case, Durham concedes in his brief that "he opened his buttons on his pants" because he thought the nurse would use a "black light device . . . to examine his private parts," but "she stuck the device in his ear." Moreover, the hearing officer relied on the statements provided by the nurse, SCO Schlusselfeld, and SCO Schwartzer. Thus, there is substantial credible evidence to support the final agency decision dated March 30, 2011.

A