MILTON DURHAM v. NEW JERSEY DEPARTMENT OF CORRECTIONS

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APPROVAL OF THE APPELLATE DIVISION

 
 

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SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MILTON DURHAM,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________

November 29, 2016

 

Submitted September 13, 2016 Decided

Before Judges Reisner and Sumners.

On appeal from the New Jersey Department of Corrections.

Milton Durham, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Gregory R. Bueno, Deputy Attorney General, on the brief).

PER CURIAM

Milton Durham, currently an inmate at New Jersey State Prison (NJSP), appeals from a final disciplinary decision of the New Jersey Department of Corrections (DOC) which found that he committed prohibited act *.005, threatening another with bodily harm or with any other offense against her person, and .052, making sexual proposals or threats to another, N.J.A.C. 10A:4-4.1(a), and imposed sanctions. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.

On September 16, 2013, at approximately 8:51 a.m., Investigator Madden,1 of the DOC's Special Investigations Division, reported that she was walking in NJSP's 7-Up housing unit when Durham, while in cell number 17, stated to her, "Ima [sic] stick my dick between your ass cheeks then Ima [sic] choke you to death." To confirm Durham's identity, Madden attempted to photograph him, but he closed a make-shift curtain covering the cell door. The next day, a disciplinary report was issued charging Durham with prohibited acts *.005 and .052.

The matter was referred to a disciplinary hearing officer. Durham requested and was assigned assistance of counsel substitute. A hearing scheduled on September 18, was postponed pending further investigation regarding the charges.

At the hearing on September 23, Durham pled not guilty, contending that, although he does use profanity and can get abusive at times, he did not say anything to Madden. He also requested that the charges be modified to abusive language to a staff member.2 According to Durham's two witnesses, inmates occupying nearby cells, they did not hear Durham make the alleged statements. Madden did not appear at the hearing, and Durham declined the opportunity to confront her. The hearing officer, crediting Madden's report, found Durham guilty. Specifically, he determined that "Madden has no reason to falsify report and has nothing to gain." For the *.005 charge, Durham was sanctioned to fifteen days detention, with credit for time served, and 180 days administrative segregation. For the .052 charge, Durham was sanctioned to fifteen days detention, with credit for time served, ninety days administrative segregation, and thirty days loss of recreation privileges.

On September 25, Durham filed an administrative appeal. The appeal was denied on October 17, based upon the finding that there were no procedural violations and a "preponderance of evidence presented supports the decision of the [h]earing [o]fficer and the sanction rendered is appropriate." Durham subsequently filed an appeal with this court.3

Our review of agency action is limited.
Williams v. N.J. Dep't of Corr., 423 N.J. Super. 176, 182 (App. Div. 2011) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)). Decisions of administrative agencies carry with them a "presumption of reasonableness." Lisowski v. Borough of Avalon, 442 N.J. Super. 304, 330 (App. Div. 2015) (quoting City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980), cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)). We reverse an agency's decision only when it is "arbitrary, capricious, or unreasonable," or unsupported by substantial credible evidence. In re Herrmann, 192 N.J. 19, 27-28 (2007).

"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). When reviewing a DOC prison discipline decision, we consider not only whether there is substantial evidence that the inmate committed the prohibited act, but also whether, in making its decision, the DOC followed the regulations adopted to afford inmates due process. See McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995).

Substantial evidence is "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) (quoting In re Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)). "Where there is substantial evidence in the record to support more than one regulatory conclusion, 'it is the agency's choice which governs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.), certif. denied, 127 N.J. 323 (1990) (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 491 (App. Div.), certif. denied, 102 N.J. 337 (1985)). Thus, 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. De Vitis, supra, 202 N.J. Super. at 489.

However, "although the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)). We are not "relegated to a mere rubber-stamp of agency action," but rather we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (citations omitted).

An inmate is entitled to be notified of an administrative appeal decision within specific timeframes. Unless there are exceptional circumstances, with respect to "an inmate being held in Disciplinary Detention which resulted from disciplinary action, the written decision on the appeal shall be given to the inmate within 72 hours of receipt of the appeal, excluding weekends and holidays[.]" N.J.A.C. 10A:4-11.7(a)(1). "In other cases, or if the sanctions have been suspended," the appeal decision must be served on an inmate "within seven business days of receipt of the appeal." N.J.A.C. 10A:4-11.7(a)(2). To obtain relief due to a delay in receiving the decision, an inmate must establish that he has suffered prejudice, otherwise there was harmless error. Jacobs v. Stephens, 139 N.J. 212, 219-20 (1995).

Before us, Durham contends that there was no credible evidence to support the finding that he was guilty of the charges, his administrative appeal was not reviewed and timely decided, and the hearing officer withheld exculpatory evidence. We are unpersuaded.

Given our deferential standard of review, we find no basis to disturb the agency's decision. We are satisfied that both the hearing officer's decision and the DOC's ultimate determination are sufficiently grounded on substantial credible evidence. While the DOC's decision was untimely rendered after receipt of Durham's administrative appeal, the error was harmless as Durham has not demonstrated that he was prejudiced by the delay.4

Affirmed.


1 Investigator Madden's first name is not disclosed in the record.

2 Prohibited act .304. N.J.A.C. 10A:4-4.1(a)

3 After initially denying Durham's motion to file an appeal as within time, followed by reinstatement and dismissal of the appeal again due to procedural deficiencies, this court reinstated the appeal on August 18, 2015.

4 It is unclear from Durham's brief whether he is alleging a violation of N.J.A.C. 10A:4-11.7(a)(1) or -11.7(a)(2). Nevertheless, the DOC acknowledges that the decision was not timely provided.


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