MARK A. BROWN 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NOT FOR PUBLICATION WITHOUT THE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

MARK A. BROWN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

December 3, 2014

Submitted November 19, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from the New Jersey Department of Corrections.

Mark A. Brown, appellant pro se.

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

PER CURIAM

Mark A. Brown, while an inmate at Bayside State Prison, was found guilty of committing prohibited acts *.002, assaulting any person, and *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility. N.J.A.C. 10A:4-4.1(a).1 He appeals the decision and sanctions imposed by the Department of Corrections (Department). Having thoroughly considered the record before us, we affirm.

The charges stem from a March 1, 2013 altercation between Brown and Senior Corrections Officer (SCO) A. Wilson, who was on duty in the dining hall of the prison facility. In his disciplinary report, Wilson described the altercation with Brown as follows

[I] observed a bulge in the left pocket of inmate Brown['s] pants pocket, at this time I ordered [] Brown to step out of line and to turn around and place his hands out to his side. While attempting to pat frisk [] Brown, he turned striking me twice in the left check. I then tried to restrain [] Brown and attempted to take him down to the ground where he fell on my right hand. [] Brown was combative, kicking and punching and was given several orders to stop resisting. A code 33 was called and other officers assisted in restraining [] Brown. Once finally restrained in handcuffs [] Brown was combative and non-compliant while being escorted to the [] holding cell.

Wilson further reported that

As a result of [Brown's] actions, the Dinner movement was delayed for over [twenty] minutes, and the Medical Movement had to be delayed as well as Church call, The Gym Movement had to be cancelled because the officers were tied up with the disturbance. The meal ran approximately [thirty] minutes longer than usual because the officers were needed elsewhere.

Sergeant James McDonnell, Sergeant R. Rivello, and SCOs H. Youmans and P. Malmgren were either present at or responded to the scene. Each of these officers submitted reports corroborating Wilson's version of events. As a result of the altercation, Wilson was sent to South Jersey Regional Medical Center due to swelling and redness on the left side of his face and a swollen right hand. The prison nurse treated Brown for a small cut on his head.

Brown disputed the charges and claimed that he was assaulted by Wilson. In his statement, Brown alleged that Wilson had stopped him the day before "for no apparent reason," degraded him with racial slurs, "and said he'll get me." On the day of the incident, he claimed that Wilson ordered him to face a wall while searching him. According to Brown, while he had his hands on the wall, Wilson repeatedly struck him in the head, face, and body, and other officers then joined in punching and kicking him.

The disciplinary charges were served on Brown and his request for counsel substitute was granted. At a hearing on the charges on March 4, 2013, Brown requested confrontation of Wilson and identified two inmates from whom he wished statements. The hearing officer granted both requests.

The hearing continued on March 6, 2013. Brown relied on his written statement, and counsel substitute argued that the entire incident stemmed from a bulge in Brown's pocket and that nothing illegal had been found. Witness statements from the two inmates were obtained by the Department and reviewed by the hearing officer. One inmate heard about the altercation but did not see it. The other inmate stated "I did not see problem so I can't comment."

Hearing Officer Zimmerman found Brown guilty on both charges. The hearing officer found "no discrepancies" during Wilson's confrontation. Zimmerman noted that Rivello and Youmans "provided supporting statements that confirm the incident," and Brown's "combative nature." Further, the inmate witnesses failed to provide any information discrediting the officers' accounts. Zimmerman imposed sanctions of fifteen days detention, 365 days in administrative segregation, and 365 days loss of commutation time on the *002 charge. On the *306 charge, an additional fifteen days detention, 210 days administrative segregation, and 210 days loss of commutation time was imposed, to be served consecutively to the *002 sanctions. Zimmerman noted that these sanctions were necessary to deter inmates from assaulting staff and disrupting the orderly running of the correctional facility.

Brown filed an administrative appeal, arguing that (1) he never assaulted anyone; (2) Wilson assaulted him, and was injured as a result; (3) his conduct did not stop the running of the prison facility; and (4) the sanctions should be suspended. On March 12, 2013, the assistant superintendent of the prison upheld the hearing officer's determinations.

On this appeal, Brown argues that the convictions on the two disciplinary charges were arbitrary and were not based on substantial evidence in the record. He further contends that he was denied a polygraph examination, and that the sanctions imposed were excessive.

Based upon our review of the record, we reject as without merit Brown's arguments that the Department's determinations were not based upon substantial credible evidence in the record. We have carefully considered each of Brown's contentions in light of the applicable law and find that none of them has sufficient merit to warrant extended discussion in this written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

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).

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). After reviewing the record, we are convinced that Brown was afforded all these recognized rights that an inmate facing disciplinary charges 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." In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961) (citation and internal quotation marks omitted).

Brown contends that he did not engage in any assaultive or combative behavior, and that he was the victim of an unprovoked attack by Wilson and the other officers who responded to assist him. However, Brown's version of events is discredited by the reports of four other officers who witnessed Brown (1) assault Wilson or (2) remain combative while resisting being restrained, thus disrupting the normal operations of the prison. Although Brown was afforded the right to confront Wilson, the hearing officer found no discrepancies in Wilson's testimony. Brown was also afforded the opportunity to obtain and present the statements of witnesses on his behalf. However, Brown's own witnesses failed to support his version of the events. We are satisfied that the record contains sufficient and substantial evidence that amply supports the Department's findings.

We decline to address the new argument that Brown raises that he was denied a polygraph examination. Nothing in the record suggests that Brown ever requested a polygraph in the proceedings before the hearing officer. The failure to raise this issue before the hearing officer or in the administrative appeal precludes advancement of the issue here as it is not properly before us. See State v. Robinson, 200 N.J. 1, 20 (2009).

Finally, we reject Brown's argument that the sanctions he received were excessive. The sanctions imposed were within the allowable range for the infractions committed. N.J.A.C. 10A:4-5.1(a) (permitting up to fifteen days detention, and up to 365 days administrative segregation and loss of commutation). We also note the hearing officer's rationale that the sanctions were warranted because Brown's assaultive and disruptive behavior could not be tolerated within this prison facility. The Department 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). Moreover, "[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). Accordingly, Brown has failed to demonstrate that the sanctions imposed on him for these assaultive and disruptive offenses were arbitrary, capricious or unreasonable.

Affirmed.

1 DOC Inmate Disciplinary Regulations classify "*asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4.4.1. See also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).