BRYAN THOMAS 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NOT FOR PUBLICATION WITHOUT THE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

BRYAN THOMAS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________

Argued May 26, 2015 Decided June 8, 2015

Before Judges Sabatino and Gilson.

On appeal from the New Jersey Department of Corrections.

Raymond C. Staub argued the cause for appellant (Destribats Campbell, LLC, attorneys; Mr. Staub, on the brief).

Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney for respondent; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).

PER CURIAM

Appellant, Bryan Thomas, is an inmate currently incarcerated at New Jersey State Prison in Trenton. He appeals a December 4, 2013 final agency decision of the Department of Corrections ("the Department") imposing disciplinary sanctions on him. The sanctions were imposed after a hearing officer found that appellant had committed three prohibited acts in violation of N.J.A.C. 10A:4-4.1(a), specifically, "fighting with another person" (*.004), "conduct which disrupts or interferes with the security or orderly running of the correctional facility" (*.306), and tampering with a locking device (*.154). We affirm.

The three infractions all arise out of an incident that took place on November 20, 2013. That afternoon, appellant was let out of his cell by Senior Corrections Officer Phillips for a shower. While appellant was in the shower, Officer Phillips let another inmate in the same unit, Flemming,1 out of his cell to pick up his laundry.

Another senior corrections officer, Roman, observed appellant push his shower door open and encounter Flemming. Officer Roman and Phillips then saw appellant and Flemming exchange punches with one another. A third officer on the scene, Sergeant Horne, ordered the inmates to stop fighting, but they continued. Officer Phillips sounded an alarm and more officers responded.

Ultimately, appellant and Flemming were pepper-sprayed, which caused the fight to stop. Both appellant and Flemming were taken to the prison's medical clinic, where a nurse noted that appellant had a left elbow injury and Flemming had a facial injury below his left eye.

As a result of the fight, the prison's yard movement was delayed for approximately ten minutes. Officer Roman inspected the shower area where appellant had been just prior to the fight, and noticed that paper towels had been stuffed in the shower door's locking device.

After the disciplinary charges were served upon appellant, a hearing was scheduled before a neutral hearing officer. Appellant had a counsel substitute appointed to assist him. After two postponements, the hearing was completed on November 26, 2013. The hearing officer considered the written statements supplied by the officers who had witnessed the incident. The hearing officer also considered a written statement by appellant, who contended that the shower door had not been locked, that he had been abruptly attacked by Flemming while he was in the shower, and that he had only used force against Flemming in self-defense. Appellant denied jamming the shower door lock, asserting that prison staff customarily leave the showers unlocked. Appellant submitted written statements from two other inmates, who likewise claimed that the shower doors are typically left unlocked.

Since no witnesses testified at the hearing, the hearing officer relied on the written statements. Line 15 of the hearing officer's adjudication report specifically noted that appellant declined to confront or cross-examine the Department's adverse witnesses. Appellant's counsel substitute signed the report, attesting to its accuracy.

After considering the evidence, the hearing officer found appellant guilty of all three charged infractions. She imposed sanctions of fifteen days of detention, 365 days of administrative segregation, 365 days of lost commutation time, and thirty days of lost recreational privileges for the fighting offense. Additional sanctions of fifteen days of detention (consecutive to the detention for the fighting offense), 180 days administrative segregation, and thirty days of lost recreational privileges were imposed for the disruption offense. The sanctions on the lock-tampering offense were merged with the fighting offense.

Appellant pursued an administrative appeal with the Department, initially through a submission made by his counsel substitute. Because appellant was dissatisfied with certain contents of the appeal submitted by his counsel substitute, he submitted his own appeal on the Department's remedy form. On that form, appellant presented a detailed ten-line handwritten statement of his position, stressing that the shower doors are never locked by the staff.

In its final agency decision, the Department upheld the guilty findings and the sanction imposed by the hearing officer.

Through his counsel on this appeal, appellant advances three arguments: (1) his due process rights were allegedly violated, (2) the hearing officer's decision was arbitrary, capricious and not supported by the evidence; and (3) he was denied the effective assistance of his counsel substitute. None of these arguments compels reversal of the Department's decision.

Appellant's due process argument is predicated on a claim that he had initially requested to confront Officer Phillips at the disciplinary hearing, but that the hearing officer had allegedly threatened him that she would impose the maximum sanctions if he exercised his confrontation rights and was found guilty. We need not reach this argument, which appellant did not raise in his detailed administrative appeal he filed with the Department. See Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229 (1973) (stating that appellate courts generally decline to address issues not properly presented to the agency).2

Moreover, although we strongly disapprove of any coercion by the Department's disciplinary hearing officers to discourage inmates from exercising their confrontation rights, there is no legally competent proof in the record that such coercion actually occurred here. In addition, we doubt that the cross-examination of Officer Phillips desired by appellant, which appears to have been aimed at the Department's shower-locking practices, would have materially altered the result here. Appellant admittedly participated in a fight with Flemming. He continued to fight even after being ordered to stop, and had to be pepper-sprayed to desist. His claim of self-defense was rejected by the hearing officer. Even if, as appellant contends, the prison staff typically do not lock the shower doors, that does not excuse appellant from persisting in the prohibited act of fighting, regardless of how he and Flemming were able to encounter one another.

Fighting is a very serious security concern within prisons, and the Department is entitled to enact and strictly enforce regulations that prohibit such combative inmate behavior. 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). As we have noted in the past, "[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).

Appellant was manifestly afforded the modified due process rights accorded to prisoners. See Avant v. Clifford, 67 N.J. 496 (1975) (outlining those procedural rights); see also McDonald v. Pinchak, 139 N.J. 188 (1995) (reiterating the limited procedural rights of inmates). He was given notice of the charges, the hearing officer was not involved in the incident, he had limited rights to call witnesses and confront witnesses, he was provided with a written statement of the evidence relied upon and the sanction imposed, and he was afforded the assistance of a substitute counsel. As to the latter, we find no merit to appellant's claim that he was prejudiced by ineffective counsel substitute. His claim that he was not adequately consulted by his counsel substitute is unavailing, particularly since he filed his own superseding administrative appeal with the Department, which was duly considered.

The decision of the hearing officer and the Department's adoption of the hearing officer's findings were not arbitrary or capricious, and they were supported by substantial evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). The Department documented each stage of its disciplinary charges and the hearing process. The hearing officer made sufficient findings of facts to support the findings of guilt on the disciplinary charges.

We have considered the remaining points raised in appellant's brief and by his retained appellate counsel at oral argument, and find them to lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(D) and (E).

Affirmed.

1 The other inmate combatant's last name is also spelled "Fleming" in some of the documents in the appendix.

2 After oral argument on the appeal, we were advised in an unsolicited motion by defendant to supplement the record that he had attempted to file a second administrative appeal with the Department in January 2014, this time raising the claims of a coerced waiver of his cross-examination rights. We have denied that motion to supplement the record, as the appellate record should be confined to the record that led to the Department's final agency decision dated December 4, 2013. In any event, the tendered submission does not affect our analysis.