JOHN A. RIDDICK 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NOT FOR PUBLICATION WITHOUT THE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

JOHN A. RIDDICK,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________

July 24, 2013

Submitted July 16, 2013 Decided

Before Judges Ashrafi and St. John.

On appeal from New Jersey Department of Corrections.

John A. Riddick, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Roshan D. Shah, Deputy Attorney General, on the brief).

PER CURIAM

Appellant John A. Riddick appeals from a December 6, 2011, final agency decision of the New Jersey Department of Corrections (DOC). We affirm.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Riddick was incarcerated in Bayside State Prison. On December 3, 2011, at approximately 12:40 a.m., two senior corrections officers were conducting tours of the prison's housing facility. Looking through a bathroom window, they noticed Riddick behaving suspiciously and he appeared startled to see them. The officers entered the bathroom and blocked Riddick from exiting.

Riddick turned and started running toward the toilet despite the officers' commands to stop. He pushed away one of the officers and flushed a cell phone down the toilet. The phone was ultimately retrieved from the sewer trap. Riddick was handcuffed and charged with assault, in violation of *002, possession of a cell phone, in violation of *.009, and conduct which disrupts or interferes with the security or orderly running of the correctional facility, in violation of *.306.

The department conducted a disciplinary hearing and Riddick pleaded not guilty to the assault charge and "no plea" to the possession charge. He claimed that the officers had confused him with a different inmate and that he had not flushed anything down the toilet. He was represented by counsel-substitute but he called no witnesses and did not cross-examine the officers.

The hearing officer found Riddick guilty of assault and possession of a cell phone, but not guilty of disrupting the orderly running of the facility. Riddick was sanctioned with thirty days detention, 365 days administrative segregation, and 365 days loss of commutation credits. Riddick administratively appealed. He did not challenge the hearing officer's findings or the sufficiency of the evidence. Nor did he raise any due process concerns. Rather, he requested leniency in the imposition of sanctions. The DOC administrator issued a final agency decision affirming the determination of the hearing officer and denying Riddick's request for leniency. It is from that decision that Riddick appeals.

On appeal, Riddick raises the following issues for our consideration: that the hearing officer failed to state why she believed that the cell phone retrieved from the sewer trap was the one the officers had observed in the toilet; that the hearing officer failed to state precisely what evidence was relied upon; that he was denied the opportunity to cross-examine witnesses; and that his counsel-substitute provided inadequate representation.

Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing 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) (citations 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).

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). 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). We conclude that Riddick was afforded all of the due process protections he was entitled to receive.

"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." Figueroa v. N.J. Dep't. of Corr., 414 N.J. Super. 186, 192, (App. Div. 2010) (quoting In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 376 (1961)).

We will not substitute our own judgment for the agency's even though we might have reached a different conclusion. In re Stallworth, supra, 208 N.J. at 194. This same deferential standard applies to our review of the agency's choice of a disciplinary sanction. Id. at 195. We review discipline only to determine whether the "'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" Ibid. (quoting In re Carter, 191 N.J. 474, 484 (2007)).

Here, Riddick was accorded all of the due process to which he was entitled. He received written notice of the charges, a disclosure of the evidence that was presented, an opportunity to be heard and to present witnesses, the right to confront and cross-examine witnesses, a neutral hearing officer, and a written statement of the evidence relied upon and the reasons for the discipline. In fact, the hearing officer had relied upon the officers' statements and the evidence of the cell phone which had been retrieved from the sewer trap. Moreover, Riddick never raised any due process concerns in his administrative appeal. The sanctions imposed by the hearing officer were proportionate to the offenses and were amply supported by the record. As such, we find no reason to disturb the final agency determination.