STEVEN McKEE 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NOT FOR PUBLICATION WITHOUT THE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-5457-10T3

STEVEN McKEE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________

September 26, 2012

Submitted September 10, 2012 - Decided

Before Judges Graves and Guadagno.

On appeal from the New Jersey Department of Corrections.

Steven McKee, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Steven McKee, a prison inmate, appeals from a final administrative determination of the Department of Corrections (DOC), imposing disciplinary sanctions pursuant to N.J.A.C. 10A:4-4.1(a), for committing prohibited act *.005, threatening a corrections officer. After careful consideration of appellant's arguments, we affirm the administrative finding that he violated *.005 and the disciplinary sanctions imposed for that violation.

I.

On May 19, 2011, at approximately 10:10 p.m., Senior Corrections Officer (SCO) Mather heard loud music coming from cell #1115, occupied by defendant. SCO Mather told defendant to turn the music down. Defendant refused to comply, prompting SCO Mather to again order defendant to turn the music down or use headphones. Defendant came up to the cell door and shouted to SCO Mather, "When I come out for work I'll fuck you up!" As defendant was assigned to a kitchen detail that was scheduled to begin in a few hours, SCO Mather was concerned and notified Sergeant Gibson of the threat. Defendant was taken from his cell and transported to prehearing detention.

On May 20, 2011, defendant was charged with disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property. N.J.A.C. 10A:4-4.1(a). Sergeant Ennals served defendant with a copy of the charge, conducted an investigation and referred the charge to a hearing officer. When asked if he wished to call any witnesses at the hearing, McKee requested that fellow inmate, Jose Diaz, be called.

McKee pled not guilty and was granted the assistance of counsel substitute. The hearing was scheduled to begin on May 23, 2011, but McKee requested a polygraph examination. The prison administrator denied this request later that day. McKee also requested the opportunity to confront SCO Mather and Sergeant Gibson. The hearing officer granted McKee's request to confront SCO Mather but denied the request as to Gibson, although she did require Gibson to submit a statement, which caused postponement of the hearing. The hearing was delayed two additional times while awaiting Gibson's statement and once more due to the Memorial Day holiday.

The hearing concluded on June 2, 2011. McKee's counsel substitute argued the fourteen-day delay in concluding the hearing violated McKee's due process. McKee denied making the threat and claimed that as an inmate who has been incarcerated for twenty years he knew better than to threaten an officer. The hearing officer rejected both arguments and found that SCO Mather's testimony was consistent with his report. She found McKee guilty of the *.005 charge and imposed sanctions of fifteen days detention with credit for time served; one-hundred-eighty days administrative segregation; and one-hundred-eighty days loss of commutation time.

McKee filed an administrative appeal and on June 6, 2011, the hearing officer's decision was upheld by an associate administrator of the DOC.

On appeal, McKee claims his request for a polygraph was wrongfully denied, his hearing was impermissibly delayed, and he was entitled to confront Sergeant Gibson and question SCO Mather more extensively. He also argues that as an inmate who has been incarcerated for twenty years, his testimony was entitled to additional "credence and weight."

II.

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).

In his "First Argument," McKee claims that it was an abuse of discretion to deny his request for a polygraph examination. N.J.A.C. 10A:3-7.1(a)(1) provides that a polygraph examination may be authorized by the administrator "[w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." However, "[a]n inmate's request for a polygraph examination shall not be sufficient cause for granting the request." N.J.A.C. 10A:3-7.1(c); see also Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). "[A] polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). Administration of the test is discretionary, and the prison administrator's determination to deny such a test will be deemed arbitrary, capricious and unreasonable only in circumstances in which the refusal to permit a polygraph examination "impair[s] the fundamental fairness of the disciplinary proceeding." Id. at 24.

Here, the conduct that resulted in the disciplinary charge was witnessed by SCO Mather, who provided a detailed description of the threat. McKee denied the charge. The hearing officer was presented with a routine credibility determination and the denial of McKee's request for a polygraph examination was not an abuse of the administrator's discretion.

In his "Second Argument," McKee claims that the delay in scheduling his hearing constituted a denial of due process. N.J.A.C. 10A:4-9.8(c) provides:

Inmates confined in Prehearing Detention shall receive a hearing within three calendar days of their placement in Prehearing Detention, including weekends and holidays, unless there are exceptional circumstances, unavoidable delays or reasonable postponements. Should the third day fall on a Saturday, Sunday or holiday, the hearing shall be held on the business day immediately following the weekend or holiday.

McKee was served with a copy of the charge on May 23, 2011 and his hearing concluded on June 2, 2011. Three postponements were caused by delay in the preparation of the statement of Sergeant Gibson. The fourth, was caused by a conflict with the Memorial Day holiday. These delays amounted to "reasonable postponements" under N.J.A.C. 10A:4-9.8(c) and did not deprive McKee of due process.

In his "Third Argument," McKee claims that the hearing officer's denial of his request to confront Sergeant Gibson was an abuse of discretion. The hearing officer granted the opportunity to confront SCO Mather, the only officer who witnessed the threat. When McKee was interviewed, the only witness he sought to call was fellow inmate Jose Diaz who declined to make a statement.

N.J.A.C. 10A:4-9.13 provides in relevant part:

Inmates shall be allowed to call a fact witness(es) . . . and present documentary evidence in their defense . . . . If requested, an inmate or counsel substitute shall be provided the opportunity to call and question in-person a fact witness(es)

. . . .

A fact witness is defined in N.J.A.C. 10A:4-1.3 as

a witness who provides a factual account of the incident based upon his or her being personally involved in, or having personally observed the incident or aspects thereof. For example, a Department of Corrections staff member who administers a test for prohibited substances may be considered a fact witness if a question of fact exists with regard to the taking, initial testing or custody of the specimen.

Sergeant Gibson, who was not a witness to the event, was not a fact witness within the meaning of N.J.A.C. 10A:4-1.3 and the hearing officer had the discretion to deny McKee's request to call him. Nevertheless, she required Gibson to provide a statement, which confirmed that he did not witness the threat but learned of it through SCO Mather. After the incident, Gibson and another officer escorted McKee to a detention facility without incident. That was the full extent of Gibson's involvement in this incident.

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. Id. at 522-23. These protections include a limited right to call witnesses and present documentary evidence and a limited right to confront and cross-examine adverse witnesses. Id. at 525-33. We have previously addressed circumstances where the charge against the inmate is based entirely on uncorroborated accusations made by a corrections officer. In Decker v. N.J. Dep't of Corr., 331 N.J. Super. 353, 359 (App. Div. 2000), we held:

[W]here the inmate is charged with a disciplinary infraction by virtue of conduct directed to or at a corrections officer and the matter turns on the credibility of the officer or the inmate, the inmate, upon request, is entitled to confrontation and cross-examination of the officer, at least in the absence of any reasons that justify an exception as a matter of prison security.

McKee was afforded the right to confront and cross-examine the accusing officer. The hearing officer made a credibility determination and rejected McKee's defense. The determination that McKee threatened SCO Mather was supported by substantial credible evidence in the record and was not arbitrary, capricious or unreasonable. We are satisfied from our review of the record that McKee has received all the process he is due under the circumstances. Any further arguments raised by McKee that are not specifically addressed in this opinion, including his argument that his testimony was entitled to additional "credence and weight" because of the length of time he has served in prison, are so lacking in merit that they do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.