CALVIN HOLMES 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NOT FOR PUBLICATION WITHOUT THE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-0611-12T4

CALVIN HOLMES,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________

February 7, 2014

Submitted December 16, 2013 Decided

Before Judges Yannotti and Ashrafi.

On appeal from the New Jersey Department of Corrections.

Calvin Holmes, appellant pro se.

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

PER CURIAM

Calvin Holmes, an inmate at Northern State Prison, appeals from a final determination of the New Jersey Department of Corrections (NJDOC), which found that he committed certain prohibited acts, while incarcerated at East Jersey State Prison (EJSP). We affirm.

On July 21, 2012, Holmes was involved in a series of fights with other inmates in the recreation yard at EJSP. Senior Investigator Christopher Birardi of the Special Investigations Division (SID) investigated the matter by questioning inmates who were involved in the incident or had personal knowledge of what had occurred. Birardi also viewed a surveillance videotape of the incident. The investigation indicated that the inmates involved were members of a group known as Sex Money Murder, which was part of the Bloods street gang. The NJDOC has designated the Bloods as a Security Threat Group (STG).

Holmes refused to provide Birardi with a written statement concerning the incident; however, he denied that he was involved in the fight. Holmes said he had not been in the recreation yard at the time and never assaulted any person. According to the SID, the videotape shows Holmes assaulting inmates Fowlkes and Little. Moreover, the SID determined that Holmes also ordered Fowlkes and Little to fight each other. Holmes also claimed that he was not a member of the Bloods. He said he was a member of the Crips, but that gang also has been declared a STG.

Holmes was charged with prohibited acts *.002, assaulting any person, and *.010, participating in an activity related to a STG. Holmes was served with the charges on July 28, 2012. Thereafter, a corrections officer conducted an investigation, determined that the charges had merit, and referred the matter to a hearing officer for further action.

The hearing began on July 31, 2012, and after several postponements, concluded on August 17, 2012. The hearing officer found Holmes guilty of both charges. The hearing officer noted that a confidential informant had provided information indicating that Holmes made Fowlkes and Little fight, and subsequently joined in the fight.

The hearing officer pointed out that the surveillance video corroborated the confidential informant s statements, and showed Holmes assaulting Little several times. The hearing officer also pointed out that it did not matter whether Holmes was a member of the Crips or the Bloods. Membership in a STG was not required, since Holmes had been charged with participation in a STG-related activity. The hearing officer found Holmes had engaged in such activity.

In imposing sanctions, the hearing officer noted that internal discipline in a STG has the potential to cause serious injury to both inmates and custody and will not be tolerated. On the *.002 charge, the hearing officer imposed 15 days of detention, with credit for time served, 300 days of administrative segregation, the loss of 300 days of commutation time, and the loss of recreation privileges for 180 days. On the *.010 charge, the hearing officer imposed 15 days of detention, with credit for time served, 120 days of administrative segregation, and the loss of 180 days of recreation privileges.

Holmes filed an administrative appeal, challenging the hearing officer s determination. On August 21, 2012, Assistant Superintendent William Anderson upheld the hearing officer s decision. This appeal followed.

Holmes raises the following arguments for our consideration:

POINT I

APPELLANT S SUBSTANTIVE DUE PROCESS RIGHTS WERE VIOLATED BY THE DISCIPLINARY HEARING OFFICER[ ]S ARBITRARY DENIAL OF HIS REQUEST TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES.

THE HEARING OFFICER[ S] SUMMARY DENIAL OF APPELLANT S REQUEST TO CONFRONT AND CROSS-EXAMINE INVESTIGATOR BIRARDI WAS AN INEXPLICABLE VIOLATION OF APPELLANT S DUE PROCESS RIGHTS.

POINT II

THE CONFIDENTIAL INFORMANT WAS NEITHER RELIABLE [NOR] CREDIBLE. HENCE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A FINDING OF GUILT.

POINT III

THE HEARING OFFICER CONSIDERED EXTRANEOUS INFORMATION OUTSIDE OF THE RECORD IN REACHING HER DECISION, DEPRIVING APPELLANT OF A FAIR AND IMPARTIAL HEARING.

POINT IV

APPELLANT RECEIVED AN EXCESSIVE SANCTION BEYOND THE MAXIMUM SANCTION ALLOWED BY THE ADMINISTRATIVE CODE GOVERNING INMATE DISCIPLINE.

POINT V

THE HEARING OFFICER RENDERED AN EXPERT MEDICAL OPINION THAT WAS OUTSIDE THE SCOPE OF HER QUALIFICATIONS.

Judicial review of actions of administrative agencies is "severely limited." George Harms Constr. Co. v. N.J. Turnpike Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. NJ Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). Thus, a court "can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

When reviewing a final determination of the NJDOC in a prisoner disciplinary matter, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the NJDOC followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).

Holmes contends that he was denied the opportunity to call inmate Little as a witness and to cross-examine SID investigator Birardi. However, the record shows that the hearing officer gave Holmes the opportunity to have Little provide a witness statement, and Little provided a statement to an investigator.

The hearing officer also gave Holmes the opportunity to confront or cross-examine adverse witnesses, as noted on the adjudication report. Holmes s counsel substitute signed the report, indicating that it accurately reflected what took place at the hearing.

Holmes also contends that Little was the confidential informant who provided the SID with information concerning the incident. He claims that because Little's statements were contradictory, he was not a credible witness. The hearing officer addressed this issue in her report. She said that Little s first statement was "the traditional response some [inmates] provide when they are abused during [recreation] time. It is common practice for [inmates] not to provide details about assailants due to fear of repercussions. The second statement obtained . . . will be considered a true and faithful statement[.]" Thus, the hearing officer specifically found that Little s second statement was credible.

We must give due regard to the agency's assessment of the credibility of the witnesses. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988) (citing Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We also must recognize the agency's expertise where, as in this case, "'such expertise is a pertinent factor.'" Ibid. (quoting Close, supra, 44 N.J. at 599).

Holmes additionally argues that the hearing officer contacted someone named Eigemauch by e-mail during the hearing. He says that it is unclear why the hearing officer contacted this individual, or what evidence he provided. It appears that Holmes is referring to Sergeant Herb Eigenrauch, of EJSP s disciplinary unit. In any event, there is no proof that Eigenrauch provided the hearing officer with any evidence that the hearing officer relied upon in her decision.

Holmes further argues that the hearing officer rendered a medical opinion outside the scope of her qualifications by stating that it was possible for fight wounds to heal within a day or two. Holmes notes that a medical professional at the prison infirmary issued a report indicating that he did not have any injuries that would indicate he had been in a fight. Holmes says that the hearing officer erred by refusing to credit the opinion of the medical professional.

However, the hearing officer noted in her report that Holmes had not been seen by the medical professional until two days after the fight, and the "lack of injuries does not exonerate a person from having been involved in a fight." Thus, contrary to Holmes's argument, the hearing officer did not render a medical opinion. She merely assessed the credibility of Holmes claim that he had not been in a fight.

Holmes also argues that his sanctions are excessive. As noted previously, Holmes was found guilty of two asterisk offenses.1 For each offense, Holmes could receive up to 15 days of detention, the loss of up to 30 days of certain privileges, up to one year of administrative segregation, the loss of up to 365 days of commutation credits, the loss of up to two months of furlough privileges, and other sanctions. N.J.A.C. 10A:4-5.1(a).

Furthermore, an inmate may lose recreation privileges for up to 180 calendar days if the inmate commits a prohibited act that is specifically related to, or concerned with a recreation privilege. N.J.A.C. 10A:4-5.1(g)(8). In addition, when an inmate is found guilty of more than one disciplinary charge arising out of a single incident, the inmate may receive up to 15 days of detention for each charge, provided the total does not exceed 30 calendar days. N.J.A.C. 10A:4-5.3(a)(1).

Holmes argues that the sanctions consist of multiple years of administrative segregation, and the loss of a significant period of commutation time. He claims this is tantamount to cruel and unusual punishment. He also claims that the sanctions are not in accord with sanctions given to other similarly situated inmates. We do not agree.

As we have explained, the sanctions imposed here are specifically permitted by the administrative code. The hearing officer noted that a fight among members of STGs could potentially cause serious injuries to the persons involved, and such conduct would not be tolerated. Furthermore, there is no evidence indicating that the sanctions imposed here are different from sanctions imposed on any similarly-situated inmate.

Affirmed.

1 Asterisk offenses "are considered the most serious [infractions] and result in the most severe sanctions[.]" N.J.A.C. 10A:4-4.1(a).