RAYMOND TEXIDOR 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NOT FOR PUBLICATION WITHOUT THE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-0

RAYMOND TEXIDOR,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

October 29, 2013

Submitted July 2, 2013 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the New Jersey Department of Corrections.

Raymond Texidor, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley Dickstein, Deputy Attorney General, on the brief).

PER CURIAM

Raymond Texidor is an inmate currently incarcerated at the Southwoods State Prison in Bridgeton. He appeals from the final administrative agency decision of the New Jersey Department of Corrections (DOC), adjudicating him guilty of disciplinary infractions *.004, fighting with another person and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. We affirm.

The facts upon which the adjudications were reached occurred on September 16 and 20, 2011. At the time, Senior Corrections Officer Rodriguez, witnessed Texidor involved in an altercation with another inmate in the recreational yard where other inmates were present. Other correctional officers were dispatched to the area and the two inmates were separated. Texidor was taken to the prison infirmary where he was evaluated by the medical staff. He sustained multiple skin abrasions. He was placed in pre-hearing detention and was served with the two disciplinary infractions.

Texidor pled not guilty to both charges and the matter proceeded to a hearing before Hearing Officer (HO) Nolley. Texidor had initially requested the opportunity to confront the correctional officers who lodged the charges but later withdrew that request. He additionally requested and was granted counsel substitute. He testified at the hearing that he was playing handball. He submitted a written statement in which he maintained the injuries he sustained occurred when he fell playing handball rather than from fighting. A number of inmates also submitted written statements on Texidor's behalf. In most of those statements, the inmates stated they did not see any fighting. In only one statement, from Jason Lotz, was it stated that "at no time while we were play (sic) was there any fight (sic), alot (sic) of arguments but no fight (sic) while I was playing handball." However, even that statement was limited to the time when Texidor was playing handball with Lotz.

HO Nolley considered SCO Rodriguez's Special Custody Report in which he stated that he witnessed two men fighting in the "1 and 2 Wing Yard Hand Ball Court area[,]" but was only able to identify one of the men involved, Texidor. She also considered the written reports submitted by numerous correctional officers, who responded to Rodriguez's call for assistance, but who did not actually witness the incident, a video of the area where the incident occurred, which depicted inmates fighting, and the medical reports documenting Texidor's injuries.

HO Nolley upheld both charges. She found the "fighting put other inmates and staff in danger" and that "the yard must be maintained." She also found that the "yard and schedule was disrupted as a result of this incident." HO Nolley combined the sanctions for the two infractions and imposed a 15-day period of detention, 275 days of administrative segregation, a 275-day loss of commutation time, and a 65-day loss of recreation privileges.

Texidor filed an administrative appeal of both charges. He limited his appeal to the 275-day administrative segregation. He sought modification or suspension of that sanction, contending that his institutional record was otherwise above average. The Assistant Superintendent upheld the decision and sanctions imposed. The present appeal ensued.

On appeal, Texidor raises the following points for our consideration:

POINT ONE

THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ALSO LACKS THE NECESSARY ELEMENTS TO SUSTAIN GUILT BASED UPON SUBSTANTIAL CREDIBLE AND RELIABLE EVIDENCE IN THE RECORD AS A WHOLE.

POINT TWO

THE APPELLANT WAS DENIED EQUAL PROTECTION AND FUNDAMENTAL FAIRNESS AT HIS DISCIPLINARY HEARING.

POINT THREE

THE VIDEO EVIDENCE CLEARLY EXONERATES APPELLANT OF ALLEGED INFRACTION BUT WAS USED AS A FINDING OF GUILT; THE AGENCY'S ACTION VIOLATED EXPRESSED OR IMPLIED LEGISLATIVE POLICIES.

POINT FOUR

THE AGENCY FAILED TO PROVIDE EFFECTIVE SUBSTITUTE COUNSEL AT HEARING N.J.A.C. 10A:4-9-12; "THE HEARING OFFICER IS TO CHOOSE A SUFFICIENTLY COMPETENT STAFF MEMBER OR INMATE TO PROVIDE ASSISTANCE[.]"

We have considered Texidor's claims in light of the record and applicable legal principles and conclude his argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11 3(e)(1)(D) (E). We add the following brief comments.

We will not disturb a final administrative agency decision unless it is arbitrary, capricious or unreasonable. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). Therefore, we will affirm a final agency decision if the agency's findings "could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole . . . with due regard also to the agency's expertise." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (internal citations and quotation marks omitted). It is particularly appropriate that we recognize such expertise when dealing with matters of prison administration. Pryor v. Dep't of Corr., 395 N.J. Super. 471, 476 77 (App. Div. 2007).

We also note the settled law that inmate disciplinary appeals are not part of the criminal justice system and that inmates are not afforded the panoply of procedural rights afforded to an individual defending against a criminal charge. In Avant v. Clifford, 67 N.J. 496, 525 30 (1975), the Supreme Court summarized the rights available to an inmate charged with a disciplinary infraction. These include receiving written notice of the charges at least twenty-four hours in advance of the hearing, an impartial tribunal to decide the charges, a limited right to call witnesses and present documentary evidence, a limited right of confrontation and cross-examination, a written decision noting the reasons for the decision and the evidence relied upon, and, when appropriate, the assistance of counsel substitute.

The record here reveals that Texidor received all of these rights. His hearing thus comported with the requirements of procedural due process for inmate disciplinary matters. Additionally, there is substantial credible evidence in the record to support the finding that he engaged in fighting, which disrupted and interfered with the security and orderly running of the correctional facility. We discern no basis to disturb the findings or the sanctions imposed.

Affirmed.