CARL PIERCE 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NOT FOR PUBLICATION WITHOUT THE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

CARL PIERCE,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_________________________________

October 23, 2013

Submitted September 23, 2013 Decided

Before Judges Parrillo and Guadagno.

On appeal from the New Jersey Department

of Corrections.

Carl Pierce, appellant pro se.

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

PER CURIAM

This is a prison disciplinary appeal. Appellant Carl Pierce, an inmate currently confined at South Woods State Prison, appeals a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.551, making intoxicants, alcoholic beverages or prohibited substances, in violation of N.J.A.C. 10A:4-4.1. We affirm.

On a routine search of Pierce's cell on February 15, 2012, Senior Corrections Officer (SCO) K. Manning discovered a mayonnaise bottle filled with "liquid" in Pierce's footlocker. The bottle was cloudy and the contents smelled of alcohol. Manning reported that Pierce admitted that the bottle was his and contained "hooch," i.e., alcohol. Subsequently, Investigator Joseph Williams examined the bottle and concluded, based on his education and experience, that its contents contained fermenting materials.

During both the investigation and the hearing, Pierce claimed the bottle was not his, but rather belonged to his cellmate, Corey Conyers, and that SCO Manning fabricated the incident in retaliation for reports by inmates that Manning had violated their rights. In an inmate statement submitted at the hearing by Pierce's cellmate, however, Conyers merely stated that he did not "know anything about Hooch."

Pierce's request for a polygraph test was denied because the disciplinary report and supplemental evidence supported the charge. He was afforded counsel substitute, who stated "inmate denies possession, requests leniency." Pierce declined the opportunity to confront adverse witnesses.

The hearing officer found Pierce guilty of *.551 and sanctioned him to fifteen days' detention, 180 days' administrative segregation, 180 days' loss of commutation time, and 180 days' urine monitoring. On administrative appeal, the associate prison administrator upheld the hearing officer's adjudication of guilt and imposition of sanctions.

On appeal, Pierce claims that the finding of guilt is not based on substantial credible evidence and that he was deprived of procedural due process by the denial of his request for polygraph and other testing to question SCO Manning's credibility. We have considered each of these issues in light of the record, the applicable law, the arguments of counsel and defendant, and the appropriate appellate standards. We are satisfied that the final agency decision should be affirmed.

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). We will not upset the determination of an administrative agency absent a showing 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. N.J. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.

[Ibid. (citations omitted).]

Here, there is substantial credible evidence of Pierce's guilt. Pierce's cellmate did not claim ownership of the bottle in his statement that is part of the record.1 In fact, Pierce failed to present any evidence at the hearing that the "hooch" found in his cell was not his. On the contrary, at the time of discovery, Pierce admitted the ownership. We are satisfied therefore that both the hearing officer's decision and the DOC's ultimate determination are sufficiently grounded on credible evidence and should be affirmed. See Henry, supra, 81 N.J. at 579-80.

We are also satisfied that the administrative adjudication comported with procedural due process. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); Avant v. Clifford, 67 N.J. 496, 522 (1975). See also Jacobs v. Stephens, 139 N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995). Pierce timely received notice of the charge. A DOC officer thoroughly investigated the matter. Pierce was afforded counsel substitute and an impartial hearing, at which time he was free to confront or cross-examine adverse witnesses, which he chose not to do. He was permitted to make a statement and offered on his behalf the statement of his cellmate.

Pierce nevertheless complains he was denied his requests for testing, particularly a polygraph examination, to question SCO Manning's credibility. N.J.A.C. 10A:3-7.1(a) provides that "[a] polygraph examination may be requested by the Administrator" of the prison:

(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 . . . is presented with new evidence or finds serious issues of credibility.

[N.J.A.C. 10A:3-7.1(a).]

However, "'[a]n inmate's [mere] request for a polygraph examination shall not be sufficient cause[, in and of itself,] for granting the request.'" Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (quoting N.J.A.C. 10A:3-7.1(c)). Moreover, N.J.A.C. 10A:3-7.1 "is designed to prevent the routine administration of polygraphs, and 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). Rather, "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." Id. at 20. As to fundamental fairness, the Ramirez court held that:

Impairment may be evidenced by inconsistencies in the [officers'] 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 [affected] when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24.]

Here, there was no impairment of fundamental fairness in denying the polygraph request, inasmuch as Pierce merely offered bald allegations that SCO Manning's report was fabricated; points to no inconsistency of facts to support that naked claim; and presents no other facts questioning the credibility of either SCO Manning or Investigator Williams. Therefore, we are satisfied that in adjudicating the charge, there was no issue of credibility that could not be determined on the record amassed at the hearing, and the denial of Pierce's request for polygraph and other testing did not compromise the fundamental fairness of the disciplinary process.

1 Conyers' subsequent statement, dated July 7, 2012 and submitted six months after the adjudication hearing, wherein he claimed ownership of the bottle, is not part of the appellate record and, therefore, cannot be considered by us.