VASIL HEISLER 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NOT FOR PUBLICATION WITHOUT THE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-1109-11T1

VASIL HEISLER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________________

January 24, 2013

Submitted December 5, 2012 - Decided

Before Judges Fuentes and Hayden.

On appeal from the New Jersey Department of Corrections.

Vasil Heisler, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Vasil Heisler, an inmate currently incarcerated at New Jersey State Prison (NJSP) in Trenton, appeals from a final decision of the Department of Corrections (DOC) finding him guilty of disciplinary charges *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and *.708, refusal to submit to a search. Having considered the record before us and the applicable law, we affirm.

Heisler is a Rule 30 prisoner, a county inmate who has been placed in the DOC's custody. On August 5, 2011, a sergeant and a senior corrections officer went to Heisler's cell and ordered Heisler to submit to a search. According to the prison staff, Heisler refused, even after several repeated orders. The staff assembled a five person team to extract Heisler from his cell. All movement in the area ceased for more than fifteen minutes in order to escort Heisler from his cell and bring him to the medical unit. The entire incident involved five officers and two supervisors, keeping them from their normal duties for more than thirty minutes.

Heisler denied that he refused to be searched. Rather, since he had "prior problems" with the officers who came to his cell, he requested loudly and repeatedly that someone from the Special Investigations Division (SID) be present with a camera before the search occurred.

Immediately after this incident, the staff charged Heisler with Prohibited Acts *.306 and *.708. At the hearing, Heisler requested and received the assistance of a counsel substitute. According to the hearing officer's report, Heisler declined the opportunity to name witnesses, introduce evidence or confront adverse witnesses. Heisler gave his explanation for not cooperating with the officers and further explained that after the incident he had written complaints to the SID and the Ombudsman's Office pertaining to the search procedure. He also argued that, as a county prisoner, he could be sanctioned at the most with fifteen days detention per charge for a maximum of thirty days detention under N.J.A.C. 10A:31-[17.2(b)]. As he was not a state prisoner, Heisler contended, he could not be sanctioned with administrative segregation time.

The hearing officer adjourned the hearing to look into Heisler's Rule 30 status and his complaints to the SID and the Ombudsman's Office. On August 16, 2011, the hearing officer rendered his decision, finding Heisler guilty of both charges. In his written report, the hearing officer noted that he relied on the staff disciplinary reports and the pre-hearing detention report. He also pointed out that NJSP records showed that Heisler had received a copy of the NJSP Handbook and had gone through a facility orientation. His investigation showed that neither SID or the Ombudsman's Office had any recent complaints from Heisler and no record existed that Heisler had been issued disciplinary charges by the two staff members who initially came to his cell.

After considering all the evidence, the hearing officer determined that Heisler had refused to submit to a search and that this refusal disrupted the facility, and thus, upheld both charges. For the *.306 charge, the hearing officer sanctioned Heisler with fifteen days detention, 180 days administrative segregation, thirty days loss of recreation privileges, and 180 days loss of commutation time.1 For the *.708 charge, the hearing officer sanctioned him to fifteen days detention, 365 days administrative segregation, thirty days loss of recreation privileges, and 365 days loss of commutation time. Heisler appealed immediately. On September 6, 2011, the administrator issued a final decision, which upheld the hearing officer's determination and the sanctions. This appeal followed.

On appeal, Heisler raises the following contentions for our consideration:

POINT I - THE ADMINISTRATIVE SEGREGATION SANCTIONS WERE IMPOSED ON APPELLANT, A COUNTY JAIL DETAINEE HOUSED AT A STATE PRISON IN VIOLATION OF TITLE 30 AND N.J.A.C. 10A:31-16.12, THEREFORE, THE ADJUDICATION AND SANCTIONS IMPOSED SHOULD BE VACATED.

POINT II - THE MANNER IN WHICH THE HEARING WAS CONDUCTED DEPRIVED APPELLANT OF HIS RIGHT TO DUE PROCESS BY THE FAILURE OF THE HEARING OFFICER TO [ALLOW APPELLANT TO] PRESENT A DEFENSE, OR TO CONFRONT HIS ACCUSERS, THUS THE ADJUDICATION SHOULD BE REVERSED.

Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or 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) (citation omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).

The DOC has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Furthermore, as we have previously noted, "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995). "A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence means "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) (citations omitted).

The record contains sufficient credible evidence that Heisler was afforded all the recognized rights that an inmate facing disciplinary charges was entitled to receive. According to the hearing officer's final report, Heisler had timely notice of the hearing, received the assistance of a counsel substitute, and had the opportunity to present evidence or witnesses and confront adverse witnesses, but declined. The record does not support Heisler's claim that he made a request for witnesses, but they were not produced. Additionally, although after hearing Heisler's statement the hearing officer decided to look into Heisler's claims about the officers who searched his cell, she was not required to hold an additional hearing with Heisler present before rendering her decision.

Based upon our review of the record, we reject as without merit Heisler's argument that the hearing officer's determination was not based upon substantial credible evidence on the record. We are satisfied that the disciplinary reports provided substantial evidence that was more than adequate to support the agency's findings as to both charges. Indeed, we noted that Heisler does not deny that he refused to allow the search and that the staff was compelled to remove him. Heisler has pointed to no NJSP regulation, procedure or policy that allows an inmate to refuse a search unless it is filmed by SID. Because the record contains substantial evidence to support the findings of the agency, we must defer. Ramirez, supra, 382 N.J. Super at 23. Thus, we find that the agency's decision was not arbitrary or capricious.

Heisler also argues that as a county prisoner he cannot be sanctioned with administrative segregation. We disagree.

The Commissioner of DOC has the authority to "[d]etermine all matters of policy and regulate the administration of [penal] institutions. . . ." Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 67 (App. Div.) (quoting N.J.S.A. 30:1B-6(g)), certif. denied, 162 N.J. 196 (1999). The Commissioner is "specifically empowered to designate places of confinement for inmates, N.J.S.A. 30:4-91.1, and to transfer inmates from one institution to another, N.J.S.A. 30:4-85." Ibid. Generally, when inmates are transferred, they "shall be subject to rules, regulations and discipline of the institution in which they are confined . . . ." N.J.S.A. 30:4-85. Due process requires that the inmate have "notice of prison rules, offenses, sanctions and the like . . . ." Bryan v. Dep't of Corr., 258 N.J. Super. 546, 551 (App. Div. 1992) (quoting Avant, supra, 67 N.J. at 525). As long as an inmate has received notice that the infraction committed carried the sanctions imposed, an inmate may be sanctioned according to the rules of the institution where he is incarcerated. Ibid.

Here, the record supports the hearing officer's finding that Heisler received a copy of the NJSP Handbook containing the institutional regulations, including disciplinary violations and possible sanctions. We are satisfied that, having received the proper notice, Heisler was subject to the applicable rules and regulations of the facility where he was incarcerated, including the possible sanction of administrative segregation. N.J.S.A. 30:4-85.

Affirmed.

1 The DOC concedes that since Heisler has no commutation time, his sanction for loss of commutation time has no effect.