SHAFFONA MORGAN 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NOT FOR PUBLICATION WITHOUT THE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

SHAFFONA MORGAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________

October 25, 2013

Submitted October 8, 2013 Decided

Before Judges Sabatino and Rothstadt.

On appeal from the New Jersey Department of Corrections.

Shaffona Morgan, appellant pro se.

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

PER CURIAM

Shaffona Morgan, an inmate at New Jersey State Prison, appeals from a May 25, 2012 final administrative decision of the Department of Corrections (DOC) adjudicating her guilty of institutional infractions *.004 (fighting with another person); and *.306 (conduct which disrupts the orderly running of the institution), N.J.A.C. 10A:4-4.1(a). Morgan now appeals, arguing that the DOC failed to consider her claim of self-defense and that she was denied various procedural safeguards to which she was entitled, including effective assistance of counsel substitute and the ability to present her own witnesses and cross examine the DOC's witnesses. We reject these contentions and affirm.

On May 11, 2012, while incarcerated in New Jersey State Prison, Morgan engaged in a fight in the prison yard with another inmate. Senior Corrections Officer McDonough observed Morgan punching another inmate in the face with a closed fist. The other inmate then grabbed Morgan. While the two of them continued to brawl, another inmate joined the fight. As a result, Officer McDonough initiated "a Code 33" distress call, signaling an emergency situation and alerting other corrections officers to respond and assist in securing personnel, restoring order and returning the inmates to their cells.

The next day, prison officials served Morgan and the other two inmates involved with a copy of the formal charges made against them. Morgan entered a plea of not guilty.1 She did not initially request the assistance of a counsel substitute, although prior to her hearing the DOC nevertheless provided a counsel substitute. In anticipation of her hearing, Morgan did not request the opportunity to present any testimony or cross-examine any of the DOC s witnesses.

A hearing officer conducted a review on May 18, 2012. The officer reviewed Morgan s statement and the uncontroverted staff reports and medical reports about injuries suffered in the fight. The hearing officer found Morgan guilty of the charges. The officer sanctioned her to fifteen days detention with credit for time served, 180 days administrative segregation, and 180 days loss of recreational privileges for the *.004 violation. The officer further imposed fifteen days detention with credit for time served, 90 days administrative segregation and 90 days loss of commutation time for the *.306 violation.

Morgan then pursued an administrative appeal. The Assistant Superintendent of Prisons reviewed the matter and upheld the hearing officer s decision. This appeal followed.

Our review of an agency decision is limited. "Ordinarily, an appellate court will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963)); see also Szemple v. Dep't of Corr., 384 N.J. Super. 245, 248 (App. Div.), certif. denied, 187 N.J. 82 (2006). "Our role is to engage in a 'careful and principled consideration of the agency record and findings.'" DeCamp v. New Jersey Dept. of Corrections, 386 N.J. Super. 631, 636 (App. Div. 2006) (quoting Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (other citations omitted)). However, "[w]e cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) (citing Henry, supra, 81 N.J. at 579-80); Ramirez v. Dep't of Corr., 382 N.J. Super.18, 23 (App. Div. 2005). "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).

On appeal, Morgan contends her conduct was a result of (1) self-defense, (2) her counsel substitute was ineffective, and (3) she was denied procedural safeguards. We disagree and find no merit to any of Morgan's claims.

We are satisfied that the hearing officer s finding of guilt at the disciplinary hearing was based upon substantial evidence that Morgan 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, 208 N.J.182, 194 (2011). 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)).
Following our review of the record, we are satisfied that, as a matter of fairness, the DOC provided Morgan adequate due process protections in the filing, processing and hearing of the charges against her. See Avant v. Clifford, 67 N.J. 496, 525-33 (1975). We are also satisfied that Morgan failed to present supporting evidence at her hearing to support a claim of self-defense. N.J.A.C. 10A:4-9.13(f).

First, as to Morgan's claim of self-defense, other than her own unsupported allegations, Morgan did not present any evidence that fully addressed the elements of that claim as required under the DOC's regulations. Specifically, those regulations provide that an inmate who raises a claim of self-defense in response to a charge of committing a prohibited act:

shall be responsible for presenting supporting evidence that shall include each of the following conditions:

The inmate was not the initial aggressor;

The inmate did not provoke the attacker;

The use of force was not by mutual agreement;

The use of force was used to defend against personal harm, not to defend property or honor;

The inmate had no reasonable opportunity or alternative to avoid the use of force, such as, by retreat or alerting correctional facility staff; and

Whether the force used by the inmate to

respond to the attacker was reasonably

necessary for self-defense and did not exceed the amount of force used against the inmate.
 
[N.J.A.C.10A:4-9.13(f)(emphasis added)].

Morgan did not produce any evidence2 that satisfied these elements of her claim. Other than her stating that she was not the aggressor and that she previously requested protective custody or a transfer to avoid the individuals with whom she fought, she failed to come forward with any evidence that satisfied these requirements or that contradicted Officer McDonough s statement. Her evidence only related to allegations about her dispute with the other inmates before the fight. As a result, the DOC reasonably found that Morgan had not sustained her burden as to a self-defense claim.

Second, as to her procedural claims, Morgan's prison disciplinary hearing was not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant did not apply to those hearings. SeeAvant v. Clifford, 67 N.J. supra, at 522. Prisoners are, however, 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 alsoMcDonald v. Pinchak, 139 N.J. 188, 193-96 (1995).

The record here, however, does not support any of Morgan's claims that she was denied the due process to which she was entitled. First, there is no basis in the record for Morgan s claim of ineffective assistance of counsel substitute. Inmates charged with asterisk offenses have the "the right to request representation by a counsel substitute." N.J.A.C.10A:4-9.12. Inmate paralegals or counsel-substitutes all receive legal training. N.J.A.C.10A:6-2.13. However, a counsel substitute does not act as an attorney during a prison disciplinary hearing. Rather, counsel substitute facilitates the hearing under the direction of the hearing officer and advises the inmate with regard to his due process rights.

Although this is not equivalent to the constitutional right to counsel, it is among the procedural safeguards to which inmates are entitled when subject to disciplinary procedures. Avant, supra, 67 N.J. at 537. An inmate who receives assistance from a counsel-substitute who is not "sufficiently competent" has been effectively denied the due process protections established by the applicable regulations. Id.at 529. In this case, however, Morgan never presented anything in the form of certifications, for example, from prospective witnesses nor any other evidence from which we could conclude that had she had the benefit of competent substitute counsel, the outcome of the proceedings would have been different. Thus, we reject her claim of ineffective assistance of counsel substitute.

Second, a prisoner's limited due process rights include the ability to call fact witnesses and to have the opportunity to confront and cross examine her accusers or the State's other witnesses. N.J.A.C.10A:4-9.13, 9.14. In both instances, however, the prisoner must request to call or cross examine a witness.

Morgan was fully aware of her right to request confrontation or to present witness. She chose, however, to not take advantage of those opportunities. Ultimately, the DOC's determination was based on the unchallenged statement from Officer McDonough that Morgan started the fight. However, she chose not to request the opportunity to present her own witness to challenge that testimony or the opportunity to cross examine Officer McDonough. Without making that request she was not entitled to present or challenge any witness.

Finally, the Assistant Superintendent approved the hearing officer s decisions and the sanctions imposed on administrative appeal. When a prisoner is found guilty of an "asterisk" disciplinary offense, applicable regulations allow imposition of administrative segregation for up to one year. N.J.A.C. 10A:4-5.1(a)(3), and loss of commutation time for up to one year. N.J.A.C. 10A:4-5.1(a)(4). Absent demonstration of deviation from the applicable guidelines, we have no basis to interfere.

Here, Morgan was accorded all of the due process to which she was entitled. She 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. Also, 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.

Affirmed.

1 According to Morgan, she actually entered a plea of "no plea due to self-defense."

2 In her written statement, she stated that she was "lured outside" by the other inmates, one of which "spat" in her face. According to Morgan, she then pushed the inmate who then punched Morgan.