ASMAR THOMPSON 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NOT FOR PUBLICATION WITHOUT THE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

ASMAR THOMPSON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

__________________________________

Submitted May 2, 2016 Decided June 1, 2016

Before Judges Fasciale and Higbee.

On appeal from the New Jersey Department of Corrections.

Asmar Thompson, appellant pro se.

Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

PER CURIAM

Asmar Thompson, a New Jersey State Prison inmate, appeals from a July 14, 2014 final administrative decision by the Department of Corrections (DOC) adjudicating him guilty of institutional infractions *.002, "assaulting any person," and *.803, "attempting to commit any of the above acts preceded by an asterisk, aiding another person to commit any such act or making plans to commit such acts shall be considered the same as a commission of the act itself." N.J.A.C. 10A:4-4.1(a). Thompson appeals, arguing the DOC's finding of guilt must be reversed, or in the alternative, the decision of the hearing officer be rescinded and a new hearing be granted. For the reasons set forth below, we affirm.

We discern the following facts from the record. On May 1, 2014, Thompson was escorted by corrections officers to the nurse's station. Thompson stated during the nurse's evaluation, he refused to be transferred from his current cell wing and would hurt himself if moved. The nurse then contacted the on-call physician who ordered Thompson be placed on constant watch.

Corrections Officers Rodriquez, Terry, and Gil transported Thompson back to his cell after the nurse's evaluation. Corrections Officers Salvador and Martir followed in order to conduct a strip search of Thompson before he was placed on constant watch status. As Terry removed Thompson's right hand from his handcuffs, Thompson began "swinging wildly" and attempted to grab Gil. A struggle ensued involving blows to Thompson and the use of chemical agents. Gil called a "Code 33," requesting available officers to report and assist in the emergency situation. Thompson became compliant and was eventually restrained.

Thompson was charged with *.002 and *.803. The incident was investigated, and the charges were found to have merit. Thompson was served with the charge on May 9, 2014, which he refused to accept because it was not served on him within forty-eight hours of the incident. Nevertheless, Thompson pled not guilty and requested substitute counsel.

Thompson's disciplinary hearing began on May 12, 2014, and concluded on June 8, 2014. The hearing was delayed because Thompson requested a polygraph test, statements from other inmates corroborating his story, and examination of corrections officers. Thompson's request for a polygraph was denied, but he was allowed to present the statements and confront corrections officers to challenge the story that the corrections officers assaulted him. Before the hearing, Thompson submitted to the hearing officer the questions he wished to ask the corrections officers. Some questions submitted were not answered by the corrections officers because the hearing officer struck them as irrelevant.

The hearing officer found Thompson guilty of *.002 and *.803 after reviewing the evidence. The hearing officer noted while there were discrepancies between the corrections officers' description of the incident, the evidence supported the charges Thompson resisted the corrections officers by swinging wildly at them. The hearing officer noted Thompson was not prejudiced by the hearing's delay and found the delay reasonable due to Thompson's request for additional evidence.

Thompson was subsequently sanctioned to 365 days administrative segregation, 365 days loss of commutation time, and referred to the mental health unit for treatment. Thompson appealed the hearing officer's decision to the prison's Associate Administrator. The Associate Administrator upheld the hearing officer's decision finding the evidence supported the decision and there was compliance with procedural safeguards.

Thompson raises the following points on appeal

POINT I: THE DISCIPLINARY HEARING OFFICER ABUSED HER DISCRETION WHEN SHE DENIED THOMPSON'S REQUEST FOR DISMISSAL OF THE CHARGE DUE TO UNWARRANTED DELAYS BY THE DEPARTMENT.

POINT II: THE DISCIPLINARY HEARING OFFICER ABUSED HER DISCRETION WHEN SHE SUMMARILY STRUCK NUMEROUS QUESTIONS AS "IRRELEVANT" DURING THE CONFRONTATION HEARINGS.

POINT III: THE HEARING OFFICER VIOLATED THOMPSON'S DUE PROCESS WHEN SHE SHOWED CLEAR BIAS AND LACKED IMPARTIALITY WHEN ADJUDICATING THE MATTER BY FAILING TO RESOLVE ISSUES OF CREDIBILITY; DISREGARDING INMATE WITNESS STATEMENTS FAVORABLE TO THE APPELLANT; AND BOLSTERING THE CREDIBILITY OF THE CHARGING OFFICERS WITH INFORMATION NOT FOUND ON THE RECORD.

We reverse an administrative agency decision "only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Substantial evidence is evidence that "furnish[es] a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002). Substantial evidence has also been defined as evidence that "a reasonable mind might accept as adequate to support a conclusion." Figueroa v. N.J. Dep't of Corrs., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The burden rests on the challenging party to show the administrative agency decision was arbitrary, capricious, or unreasonable. McGowan, supra, 347 N.J. Super. at 563. We do not perform a perfunctory review of the agency findings but engage in a careful and principled examination. Williams v. Dep't of Corrs., 330 N.J. Super. 197, 203-04 (App. Div. 2000). "While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action." Id. at 204. However, we may not vacate an agency's determination because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985).

Hearsay statements may be relied upon in DOC disciplinary hearings. Negron v. N.J. Dep t of Corrs., 220 N.J. Super. 425, 432-33 (App. Div. 1987). A prison disciplinary hearing "is not part of a criminal prosecution and thus the full panoply of rights due a defendant" do not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)).

An inmate shall be served with his disciplinary report

within [forty-eight] hours after the violation unless there are exceptional circumstances. The report shall be delivered by the reporting staff member or the investigating custody staff member. The report shall be signed by the person delivering it and the date and time of delivery shall be noted. The inmate shall have [twenty-four] hours to prepare his or her defense.

[N.J.A.C. 10A:4-9.2.]

Failure to adhere to the time limits set out in the administrative rules for disciplinary procedures

shall not mandate the dismissal of a disciplinary charge. However, the Disciplinary Hearing Officer or Adjustment Committee may, in its discretion, dismiss a disciplinary charge because of a violation of time limits. Such discretion shall be guided by the following factors

1. The length of the delay;

2. The reason for the delay;

3. Prejudices to the inmate in preparing his/her defense; and

4. The seriousness of the alleged infraction.

[N.J.A.C. 10A:4-9.9(a)(1)-(4).]

An inmate shall be given the opportunity to confront his accusers when deemed necessary for an adequate presentation of the evidence. N.J.A.C. 10A:4-9.14(a). An inmate or substitute counsel "shall provide proposed questions to the Disciplinary Hearing Officer or Adjustment Committee for review," if the inmate's request for confrontation is granted. N.J.A.C. 10A:4-9.14(c). The Disciplinary Hearing Officer or Adjustment Committee can disallow questions that may be irrelevant or repetitive. N.J.A.C. 10A:4-9.14(d)(2), (3).

Although Thompson's hearing was unfortunately extended over multiple weeks, the hearing's delay did not limit Thompson's due process rights. The delay was attributed to Thompson's requests for a polygraph test, to confront additional witnesses, and for additional statements.

Additionally, the DOC contends the delay in delivering Thompson his charges was attributed to his status on constant watch from May 2 to May 8, 2014. Even if we were to accept Thompson's argument constant watch status does not satisfy the required exceptional circumstances that allow for a delay, the delay occasioned by the decision does not mandate dismissal of the disciplinary charges. Thompson was not prejudiced by the six day gap between the incident and service; he had ample time to prepare his defense, request evidence, and formulate trial strategy.

Having reviewed the questions submitted by Thompson struck by the hearing officer, we are satisfied the hearing officer properly determined these questions were irrelevant. The questions excluded probed issues immaterial to the infractions, including whether the corrections officers knew what type of items inmates were allowed to keep on their person, or how certain interactions made the corrections officers "feel." We also conclude the questions permitted by the hearing officer allowed Thompson to adequately explore the pertinent issues disputed.

Finally, we are satisfied Thompson received all the process due to him, and the hearing officer's findings were supported by substantial credible evidence in the record. Although Thompson presented evidence from other inmates supporting his claim, we do not need to set aside the hearing officer's decision if more than one result is supported by the record. The DOC presented multiple corrections officers' statements that corroborated Gil's major contention. Salvador and Terry substantiated Thompson began swinging his arm after one handcuff was removed. Rodriquez confirmed Thompson needed to be secured after he began swinging his arms violently, and Martir established Thompson was acting aggressively. These statements support the hearing officer's determination Thompson began flailing his arm at the corrections officers after he was unrestrained. We cannot conclude, based on this record, the final decision was arbitrary, capricious, or unreasonable.

Affirmed.