DAMIELLE TONDEE 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NOT FOR PUBLICATION WITHOUT THE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

DAMIELLE TONDEE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

June 16, 2015

Submitted March 9, 2015 Decided

Before Judges St. John and Rothstadt.

On appeal from New Jersey Department

of Corrections.

Damielle Tondee, 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

Damielle Tondee, an inmate in New Jersey State Prison and previously incarcerated in East Jersey State Prison, appeals from the September 9, 2013 final administrative decision of the Department of Corrections (DOC) adjudicating him guilty of institutional infraction *004, fighting with another person, and *306, conduct disrupting or interfering with the security or orderly running of a correctional facility. N.J.A.C. 10A:4-4.1(a). In his appeal, he argues the DOC's decision must be reversed because the decision of the disciplinary hearing officer was not supported by substantial credible evidence.

We considered appellant's argument after our review of the record and in light of the applicable legal principles. We affirm.

We discern the following facts from the record.

The institutional charges brought against appellant were the result of an incident that occurred on August 23, 2013. According to the report of Senior Correction Officer P. DeFazio, on that day he "heard what sounded like fighting noises coming from" an inmate shower area. Upon his investigation, he saw appellant and another inmate fighting. In a "special custody report," DeFazio also stated he "immediately called a Code 33 over the radio, as well as activated the riot bell system." In a subsequent "supplemental" report, issued approximately ten days later, DeFazio stated he saw appellant and the other inmate "exchange body strikes [and he was] able to see this through the window of the shower door." He further stated, "I saw each [inmate] throw punches." DeFazio issued a disciplinary report, on the day of the incident, charging appellant with the *004 offense.

According to a separate disciplinary report issued by Sergeant R. Hamlett, on the same day Defazio saw the fighting and issued an emergency call for assistance, "[a]ll available witness . . . staff responded." According to Hamlett's "special custody report," upon his arrival, he saw the other inmate involved on the floor "with blood on his face and [the appellant] standing next to him with blood on his boxer shorts." Appellant and two other inmates who were present were ordered to the ground and secured. In one of the inmate's subsequent written statements, he said he and others heard "arguing and rumbling in the shower [and after the alarm went off] guys came in the shower and wipe[d] the blood off." He was then secured with the other inmates. Another inmate's statement stated "while taking a shower I heard arguing outside [the] shower . . . sounds of fists blows hitting bodies. Someone ran in [the] shower bloody. [There was a] code 33. The police came and I laid down." Neither inmate ever identified who was actually fighting.

Upon securing appellant, Hamlett observed that appellant had "a laceration on his left hand." While moving appellant, Hamlett noted that appellant's "shower shoe broke and [appellant] slipped on the stairs causing an abrasion to his right shin." Appellant was taken to the infirmary where he was examined and cleared. He was later placed in pre-hearing detention. Hamlett also secured as evidence appellant's "[b]loody underwear [which was] placed in [an] evidence locker." According to Hamlett, "[t]his incident caused a [forty-five] minute delay in the completion of the mess movement." Accordingly, he issued a disciplinary report charging appellant with violation of *306,conduct which disrupts."

A nurse in the infirmary, stated in her report that appellant was brought there and "verbalized no complaints." She observed a one-half inch laceration on his left palm and right shin but "no active bleeding [was] observed." As a result, appellant was cleared for return to a cell.

Another officer, Sergeant N. Eatman, conducted an investigation and obtained a statement from appellant. In his statement to the investigator, appellant "denie[d] fighting [and] state[d] when [the] officers arrived he was showering." He also informed the investigator that "there were other inmates in the shower at the time but he [did] not know their names [but] if identified, they [would] [corroborate] his story." Appellant also "denie[d] any disruptions that [were] claimed to be caused by him."

Based on the information he obtained from appellant and the reports issued as a result of the incident, the investigator referred the matter for a disciplinary hearing. Appellant entered a plea of not guilty, and requested assignment of counsel substitute, which was granted.

In anticipation of his hearing, appellant requested statements from the two inmate witnesses as noted above, and he exercised his right of confrontation of Hamlett. Appellant supplied questions for Hamlett to the hearing officer. Hamlett answered these as well as additional questions submitted by appellant. Also, appellant gave a statement at the hearing again denying he was fighting as "he came too far to throw it away right now." He also stated if he "was going to fight [he] would have been strapped."1 Appellant, through counsel substitute, also claimed the blood on him was "on the floor," implying the blood on his boxer shorts was the result of his lying down on the ground when the officers arrived in response to the emergency call.

Based on the reports, Hamlett's responses and defendant's statements, the hearing officer found appellant guilty of both charges.2 She imposed sanctions of 15 days detention with credit for time served, 365 days of both administrative segregation and loss of commutation time and 30 days loss of recreation privileges. The hearing officer's determination was subsequently affirmed by the DOC and this appeal followed.

The scope of our review of an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011). "Our role is to engage in a careful and principled consideration of the agency record and findings." DeCamp v. N.J. Dept. of Corr., 386 N.J. Super. 631, 636 (App. Div. 2006) (citation and internal quotation marks omitted). "Accordingly, our function is not to merely rubberstamp an agency's decision[.]" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (citation 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 v. Rahway State Prison, 81 N.J. 571, 579-80 (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).

"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, supra, 81 N.J. at 579-80 (citing Campbell v. Dep't of Civil Serv., 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). However, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein. De Vitis, supra, 202 N.J. Super. at 489-90.

"[A] disciplinary hearing officer's adjudication that an inmate committed a prohibited act must be based on substantial evidence in the record." Figueroa, supra, 414 N.J. Super. at 191 (citing N.J.A.C. 10A:4-9.15(a)). Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing reasonable basis for the agency's action." Id. at 192 (citations and internal quotations marks omitted).

Appellant's challenge to the sufficiency of the evidence lacks merit and does not warrant discussion in a written opinion beyond the following brief comments. R. 2:11-3(e)(1)(D). The finding of guilt was based upon the hearing officer's determination of credibility, which included the resolution of any alleged inconsistencies in the witnesses' statements or the assertions by the appellant, as he argues to us in his appeal. The hearing officer's determination was supported by eyewitness evidence and the reasonable and logical inferences drawn from the other evidence which she considered. Under these circumstances, we have no reason to disturb the DOC's final determination to uphold the hearing officer's decision.

Affirmed.

1 We understand this to mean he would have been dressed in some particular gear if he was going to fight.

2 In the hearing officer's comments regarding the *306 charge, she stated that appellant had injuries to his hand and lower leg. It is undisputed, however, that the injury to the lower leg was not related to the fight. We conclude this error was inconsequential to the hearing officer's ultimate decision and our review.