TIMOTHY SCHIENDELMAN 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NOT FOR PUBLICATION WITHOUT THE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

TIMOTHY SCHIENDELMAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________________

June 8, 2015

Submitted April 28, 2015 Decided

Before Judges Nugent and Manahan.

On appeal from the New Jersey Department of Corrections.

Timothy Schiendelman, 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, on the brief).

PER CURIAM

Timothy Schiendelman, an inmate at the Adult Diagnostic and Treatment Center (ADTC), was found guilty of a disciplinary infraction for committing prohibited act .502, "interfering with the taking of count." On appeal he argues his due process rights were violated and insubstantial evidence was presented to support the charge. In light of the record and our standard of review, we affirm.

On February 23, 2014, Senior Correction Officer James was taking count when he observed Schiendelman and another inmate arguing loudly and pushing each other. The officer stopped taking count and called for assistance. Several officers responded to the scene who questioned Schiendelman and then placed him in handcuffs. A disciplinary charge was issued against Schiendelman for prohibited act .502; interfering with the taking of count. There were additional charges issued which were subsequently dismissed.

At the disciplinary hearing, Schiendelman pled not guilty and requested the assistance of counsel substitute, which was granted. He was also provided with the opportunity to make a statement but declined. In his defense, Schiendelman submitted statements from inmate witnesses which were considered by the Hearing Officer. Reports from correction officers were also submitted and considered. Schiendelman declined the opportunity to cross-examine adverse witnesses during the investigation and the hearing.

Schiendelman was found guilty by the Hearing Officer and sanctioned with: fifteen days detention; ninety days administrative segregation (suspended for sixty days); sixty days loss of commutation time; and thirty days loss of recreation privileges. An administrative appeal was filed. On appeal, the Assistant Superintendent upheld the .502 charge with some modifications. The loss of commutation time was reduced to fifteen days and the loss of recreation privileges was reduced to ten days.

On appeal, Schiendelman raises the following points

POINT I

respondent failed to provide appellant minimal due process protections required in prison disciplinary proceedings.

POINT II

failure to adduce substantial evidence in support of disciplinary charge violates appellant's due process rights and agency regulations.

POINT III

failure to document in writing findings of fact and/or reasons for determinations made violates appellant's right to due process and agency regulations.

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 [] is 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) (alteration in original) (quoting Henry, supra, 81 N.J. at 579-80). "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).

The Department of Corrections 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). Furthermore, as we have previously noted, "[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).

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. Id. at 525. 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).

"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) (internal quotation marks and citations omitted).

Schiendelman's claims that his due process rights were violated are without merit. Schiendelman was given twenty-four hours' notice of the charge prior to the initial hearing; he was granted counsel substitute; the hearing took place before a member of the DOC's central office staff, which constitutes an impartial tribunal; Schiendelman and his counsel substitute were provided an opportunity to make a statement on his behalf and afforded the opportunity to present witnesses and evidence. Although provided with the opportunity, Schiendelman declined to confront any witnesses against him or to testify at the hearing.

We are satisfied that the record contains sufficient and substantial evidence that support the agency's finding and that Schiendelman was afforded the due process rights to which he was entitled.

Affirmed.