DONALD MEYER 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NOT FOR PUBLICATION WITHOUT THE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

DONALD MEYER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

December 29, 2014

Submitted November 13, 2014 Decided

Before Judges Fuentes and Ashrafi.

On appeal from the New Jersey Department of Corrections.

Donald Meyer, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Megan E. Shafranski, Deputy Attorney General).

PER CURIAM

Inmate Donald Meyer appeals from disciplinary sanctions imposed upon him after he admittedly engaged in unauthorized and inappropriate sexual touching during a contact visit with a woman. We affirm.

Meyer was serving his sentence at South Woods State Prison. On August 31, 2013, surveillance cameras captured him in the visitor area engaging in sexual conduct with a woman that he described as his fiancée or wife. The woman lifted up her shirt and pulled out her pants, and sexual touching occurred between the two. Corrections officers terminated the visit, escorted the woman out, and prohibited her from further visits.

On September 1, 2013, Meyer was charged with violations of prohibited act .051, engaging in sexual acts with others, and .013, unauthorized physical contact with another. His disciplinary hearing began on September 4. He was informed of the charges, and a counsel substitute was assigned to assist in his defense. The hearing was then adjourned so that a mental health evaluation of Meyer could be conducted. The evaluation determined that Meyer was competent and responsible for his conduct. Subsequently, the hearing officer viewed the surveillance recording and amended the charge to a violation of *.803/*.306, attempting to commit conduct that would disrupt or interfere with the security or orderly running of a prison, a violation of N.J.A.C. 10A:4-4.1(a).1

When the disciplinary hearing resumed on September 16, 2013, Meyer's counsel substitute indicated that an adjournment of the hearing was not necessary so that Meyer could prepare a defense to the amended charge. Meyer did not wish to view the surveillance recording, to make a statement, to confront the witnesses against him, or to call any witnesses to testify on his behalf. The hearing officer found Meyer guilty and imposed thefollowing sanctions:15 daysdetention, 365 daysadministrative segregation, 365 days loss of contact visits consecutive to the administrative segregation, 180 days loss of telephone privileges, and 365 days loss of commutation time. Meyer filed an administrative appeal, which was denied by the Assistant Superintendent of the prison on September 19, 2013.

On appeal before us, Meyer contends: 1) there was insufficient evidence that his conduct could have caused a disruption of prison security or operations; 2) an attempt is not an offense under the prison rules; 3) he should have been granted a twenty-four-hour adjournment to prepare his defense to the amended charge; and 4) the hearing officer's handwriting on the adjudication form is so illegible that Meyer's due process rights were violated.

With respect to the two latter procedural arguments, Meyer explicitly waived the opportunity to request an adjournment of the hearing. He cannot argue error on that ground. It is true that the handwriting of the hearing officer is illegible in many parts of the adjudication form, and that an inmate is entitled to legible documentation and reports of the charges and evidence against him, as well as the disposition of those charges. See Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 81 (App. Div. 1997). However, Meyer did not argue in his administrative appeal that he could not decipher the basis for the finding of guilt and the disciplinary sanctions imposed, and he has presented to us a comprehensive statement of the case that is essentially undisputed by respondent Department of Corrections. There is no need for a remand to produce a legible record of the hearing officer's handwritten statements because the appeal presents no dispute as to what those statements contain.

With respect to Meyer's arguments on the merits of the amended charge, we agree that the original charges of sexual conduct and unauthorized contact were more straightforward and understandable. Meyer never disputed that the sexual touching occurred in the visitation area. His defense was that he could not help what the visitor was doing.

Meyer argues that a violation of *.306 requires an actual disruption or interference with the security or orderly running of the prison, and that there was no evidence that his conduct caused a disruption or interference. The regulation, however, does not require that a disruption or interference actually occur. Rather, it bars an inmate's conduct that can cause a disruption or interference. Furthermore, contrary to Meyer's contention, *.803 designates an attempt to commit a violation of *.306 to be the equivalent violation.

The hearing officer found that the misconduct of Meyer and his visitor occurred in the presence of the family members and possibly children of other inmates, and it might have incited the other inmates to take matters into their own hands and to use physical force or other retaliation to stop it. Although the hearing officer's reasoning is more complicated than the circumstances may have warranted, we must defer to the expertise of prison officials in assessing the security needs of their institution. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 65 (App. Div.) ("Prisons are dangerous places. The courts must afford appropriate deference and flexibility to State officials trying to manage a volatile environment."), certif. denied, 162 N.J. 196 (1999). We do not substitute our own judgment for that of prison officials in such matters. See Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).

We may reverse the decision of an administrative agency only if it is arbitrary, capricious, or unreasonable. In re Taylor, 158 N.J. 644, 657 (1999); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We do not set aside disciplinary sanctions unless an administrative agency has "mistakenly exercised its discretion or misperceived its statutory authority." In re Polk, 90 N.J. 550, 578 (1982).

Applying that standard of review, we find no error in the hearing officer's finding of guilt and the sanctions imposed, especially since there was no dispute that Meyer engaged in highly inappropriate sexual conduct in the common visitors area of the prison.

Affirmed.

1 N.J.A.C. 10A:4-4.1(a) states

An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction . . . .

*.306 conduct which disrupts or interferes with the security or orderly running of the correctional facility

. . . .

*.803 attempting to commit any of the above acts preceded by an asterisk . . . shall be considered the same as a commission of the act itself.