MICHAEL BROWN 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NOT FOR PUBLICATION WITHOUT THE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-3543-10T3

MICHAEL BROWN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

August 24, 2012

Submitted March 27, 2012 - Decided

Before Judges Espinosa and Guadagno.

On appeal from the New Jersey Department of Corrections.

Michael Brown, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).

PER CURIAM

Michael Brown, an inmate at East Jersey State Prison (EJSP), appeals from a final agency decision adjudicating him guilty of disciplinary infractions and imposing sanctions against him. We affirm.

Senior Corrections Officer (SCO) Coleman reported that Brown approached him on February 8, 2011 and asked, "How would I go about getting a few bricks . . . within the institution?" SCO Coleman explained that "bricks" is jailhouse slang for heroin. SCO Coleman also reported that Brown said he had a contact on the street, his sister, who would pay SCO Coleman to bring the bricks into EJSP and asked how much money he wanted.

Brown was charged with disciplinary infractions *.751, attempting to give or offer any staff member a bribe, and *.803, attempting to commit a prohibited act or aiding another person to commit any such act, N.J.A.C. 10A:4-4.1. He pled not guilty.

When he provided a statement, Brown claimed the charges were fabricated and requested a polygraph. His request was subsequently denied. Brown's hearing was postponed when he requested confrontation of SCO Coleman and his superior. After the hearing was postponed, he withdrew his request to confront the superior. At the re-scheduled hearing, Brown was granted a counsel substitute and withdrew his request to confront SCO Coleman. He declined the offer to call any witnesses but made a statement in which he stated he never mentioned drugs to SCO Coleman and that SCO Coleman assumed "bricks" referred to drugs. However, he did not deny offering SCO Coleman something of value.

Brown was found guilty, based upon the pre-hearing detention reports and his own statements. A sanction of fifteen days of detention, 275 days of administrative segregation, 275 days of commutation time, fifteen days' loss of recreational privileges and 35 days' loss of contact visits was imposed. Brown administratively appealed.

The Assistant Superintendent directed that the matter be reheard. However, after the Assistant Superintendent was advised that Brown withdrew his requests to confront Coleman and his superior and wanted to proceed with the hearing, the Assistant Superintendent concluded the record did not present a serious question of credibility and sustained the finding of guilt without an additional hearing. He stated, "Having revisited this matter this writer finds that although the polygraph was denied the Appellant refused to avail himself of the 'confrontation' and as such the test of credibility." The Assistant Superintendent reduced the sanctions to time served in detention; 200 days of administrative segregation; 200 days of commutation time, fifteen days loss of recreational privileges and twenty days loss of contact visits.

In this appeal, Brown argues that the adjudication was not supported by substantial credible evidence. He also argues that he was improperly denied a polygraph examination and that, once the director directed a rehearing, he was entitled to all procedural rights at a new hearing.

Our review of an administrative agency's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (stating that a court must uphold an 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).

An incarcerated inmate is not entitled to the full panoply of rights in a disciplinary proceeding as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). 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, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33. All these procedural requirements were satisfied here.

N.J.A.C. 10A:3-7.1 states:

(a) A polygraph examination may be requested by the Administrator or designee:

1. When 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 or designee is presented with new evidence or finds serious issues of credibility.

(b) The polygraph shall not be used in place of a thorough investigation, but shall be used to assist an investigation when appropriate.

(c) Agreement by the inmate to take a polygraph examination shall not be a pre-condition for ordering a reinvestigation. An inmate's request for a polygraph examination shall not be sufficient cause for granting the request.

[(Emphasis added).]

In Ramirez v. Department of Corrections, 382 N.J. Super. 18, 20 (App. Div. 2005), we held that "an inmate's right to a polygraph is conditional and 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." We stated further that the determination whether the denial will so impair the fundamental fairness of the process lies within the discretion of the prison and provided the following guidance:

Impairment may be evidenced by inconsistencies in the SCO's statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24.]

In this case, the hearing officer found that SCO Coleman was "clear" about the facts, finding no inconsistencies in his statement. If accepted as true, SCO Coleman's statements were sufficient to support the charges against Brown. Yet, Brown declined to confront SCO Coleman at the hearing and did not deny he had offered SCO Coleman something of value.

We are satisfied that the Assistant Superintendent's conclusion that there was no serious question of credibility that required the administration of a polygraph examination was not an abuse of discretion, and further, that the final decision was fully supported by substantial credible evidence.

A