EDWARD MILLIAN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EDWARD MILLIAN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________________________

December 21, 2016

Submitted November 9, 2016 Decided

Before Judges Yannotti and Kennedy.

On appeal from the New Jersey Department of Corrections.

Edward Millian, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christie Pazdzierski, on the brief).

PER CURIAM

Edward Millian, an inmate in the State's correctional system, appeals from a final determination of the New Jersey Department of Corrections (Department), which found him guilty of committing prohibited acts *.803/*.002, attempted assault of any person; and *.306, conduct that disrupts or interferes with the security or orderly running of the correctional facility, contrary to N.J.A.C. 10A:4-4.1(a). We affirm.

This appeal arises from the following facts, which we draw from the administrative record. Millian is presently serving a seven-year sentence for aggravated sexual assault of a person under the age of thirteen years, with an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On April 9, 2014, at about 2:30 p.m., Senior Corrections Officer (SCO) Michael Sawchuk observed Millian walking into the gym against the "flow of proper movement" since other inmates were exiting at the time. SCO Wood saw Millian entering the gym as the other inmates were leaving. Sawchuk said he called Millian over to the Sergeant's Office to counsel Millian "on his actions," but Millian became "irate and combative."

Millian charged at Sawchuk and swung clenched fists at the officer's head. Sawchuk stepped away but, according to Sawchuk, Millian approached him in an aggressive manner. Sawchuk deployed pepper spray and called a Code 33, which is a signal that there is an emergency situation and alerts other corrections officers to respond and provide assistance.

Several officers responded to the Code 33. Two officers placed Millian in handcuffs and, with the assistance of a third officer, escorted Millian to the hospital for decontamination and an exam. Thereafter, one of the officers searched Millian and placed him in a cell. Due to the incident, prisoner movements within the institution were delayed.

Thereafter, Millian was served with the aforementioned disciplinary charges. A disciplinary officer investigated the incident, determined that the charges had merit, and referred the matter for a hearing before a departmental hearing officer.

The hearing was initially scheduled for April 13, 2015, but it was postponed until May 1, 2015, because Millian had requested a polygraph and confrontation of Sawchuk and Wood. The prison administrator denied the request for a polygraph. On April 28, 2015, the hearing officer asked Sawchuk confrontation questions that Millian had presented in writing. Millian withdrew his request to confront Wood after Wood provided a written statement.

At the hearing, Millian had the assistance of counsel substitute. Millian pled not guilty to the charges. He denied that he assaulted Sawchuk, claiming instead that Sawchuk had assaulted him. Millian was allowed to present statements from inmates in support of his defense, including a statement from inmate Carlos Merchant, who stated that Wood assaulted Millian and took his identification card. Millian did not, however, ask the hearing officer to permit Merchant to testify in person.

The hearing officer found Millian guilty of the charges and imposed the following sanctions: fifteen days of detention; 365 days of administrative segregation; the loss of 365 days of commutation time; and the loss of thirty days of recreational privileges. Millian appealed the hearing officer's decision administratively. The assistant superintendent of the facility upheld the decision and the sanctions imposed. This appeal followed.

On appeal, Millian argues that: (1) the Department failed to prove the charges by substantial evidence, thereby denying him due process; (2) the Department unreasonably impaired his right to cross-examination of witnesses; (3) his request for a polygraph exam was wrongfully denied; and (4) the hearing officer failed to document in writing the findings of fact and reasons for the decision.

"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). When reviewing a determination of the Department in a prisoner disciplinary proceeding, we consider whether there is substantial evidence that the inmate has committed the prohibited act and whether, in making its decision, the Department followed the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22 (1995).

As noted, Millian argues that the Department failed to present substantial evidence to support the charges, as required by N.J.A.C. 10A:4-9.15(a). Here, the hearing officer credited SCO Sawchuk's report, statement, and the answers he provided to Millian's confrontation questions. The hearing officer found that Millian had attempted to assault Sawchuk, and Sawchuk had to deploy pepper spray to gain control of the situation. Moreover, Sawchuk had to call a Code 33 and other officers responded to address the emergency.

The hearing officer noted that Millian's assault upon Sawchuk had disrupted the facility and its schedule. She rejected Millian's assertions and the written inmate statements he had submitted in his defense as lacking credibility. The hearing officer noted that the inmates had been prepped and coached by counsel substitute. The hearing officer also noted that the inmates' statements contained inconsistencies.

Thus, there was sufficient evidence to support the hearing officer's finding that Millian was guilty of attempted assault and conduct that disrupts or interferes with the security and orderly operation of the prison. Furthermore, the hearing officer fully explained her decision, notwithstanding Millian's argument that she failed to do so.

Millian further argues that the Department did not permit him to present witnesses on his behalf. N.J.A.C. 10A:4-9.13 allows an inmate to call fact witnesses at a disciplinary hearing. However, the hearing officer may deny an inmate's request to call a witness for various reasons, including when the testimony will be irrelevant or repetitive. N.J.A.C. 10A:4-9.13(a). The hearing officer must record the reasons for denying an inmate's request to call a witness. McDonald, supra, 139 N.J. at 197.

As noted previously, Millian was given the opportunity to present evidence in his defense. Millian presented several witness statements. He initially requested permission to call SCO Wood, but later withdrew that request. Millian asserts that he asked the hearing officer to allow him to present live testimony from Merchant, so that Merchant could correct his initial statement that he saw Wood, rather than Sawchuk, assault Millian. However, Millian did not make a timely request to have Merchant testify, and the hearing officer accepted Millian's explanation for Merchant's alleged misidentification.

Millian also argues that the hearing officer erred by not permitting inmate Jerry Davis to testify. The hearing officer did not abuse her discretion by denying the request. The hearing officer noted that Millian had not listed Davis on his witness list and he asked permission to call Davis on the last day of the hearing. Furthermore, as the hearing officer pointed out, Davis had only come forward after Millian's counsel substitute had coached Davis and told him what to say. We therefore reject Millian's contention that he was improperly denied the right to present witnesses in his defense.

Millian further argues that the Department improperly denied him the right to confront and cross-examine certain witnesses. N.J.A.C. 10A:4-9.14 permits an inmate to confront and cross-examine a witness or accuser. An inmate is not allowed to confront the witness in person. Ibid. Instead, the inmate is permitted to submit written questions to the hearing officer, who reviews the questions and then asks the witness to respond. Ibid. The hearing officer records the witness's answers. Ibid.

Here, Millian initially sought confrontation of Sawchuk and Wood, but as noted previously, he withdrew the request to confront Wood. The hearing officer permitted Millian to confront Sawchuck, and asked him questions that Millian had submitted in writing. Thus, Millian's contention that he was improperly denied the right to confront and cross-examine witnesses is entirely without merit.

In addition, Millian argues that the Department wrongfully denied him the right to take a polygraph examination. An inmate does not, however, have a right to take a polygraph. Johnson v. N.J. Dep't of Corrs., 298 N.J. Super. 79, 83 (App. Div. 1997); see also N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient cause for granting the request."). An inmate may request a polygraph test "[w]hen there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge." N.J.A.C. 10A:3-7.1(a)(1).

Millian argues that N.J.A.C. 10A:3-7.1 does not limit an inmate's right to seek a polygraph as part of a disciplinary proceeding: However, the regulation specifically refers to disciplinary charges and it clearly applies to hearings on such charges. N.J.A.C. 10A:3-7.1(a)(1).

Furthermore, the decision as to whether to permit a polygraph exam is committed to the sound discretion of the prison administrator, and the denial of the request will only be disturbed if "arbitrary, capricious or unreasonable." Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 24 (App. Div. 2005). In exercising his or her discretion, the administrator must determine whether denial of the request "will impair the fundamental fairness of the disciplinary proceeding." Ibid.

The fundamental fairness of the proceeding may be impaired if there are "inconsistencies in the [corrections officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf." Ibid. On the other hand, the "fundamental fairness [of the proceeding] will not be [a]ffected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Ibid.

Here, the prison's administrator denied Millian's request for a polygraph, finding that "the issues of credibility can be adequately addressed by the [h]earing [o]fficer based upon the investigation, witness statements and confrontation hearing." The administrator stated that any credibility issues can be resolved by considering the entire record, including the witness statements.

The record shows that Sawchuk and Wood provided consistent statements, and Millian was permitted to test the credibility of Sawchuk's statements through confrontation. Moreover, the hearing officer found that Millian's statement and the statements of inmates submitted on his behalf were not credible.

Thus, the record did not present an issue of credibility that could not be resolved based on the existing record. Therefore, the denial of Millian's request for a polygraph "did not impede the fundamental fairness of the disciplinary hearing." Id. at 27. We reject Millian's contention that the denial of his request for a polygraph exam was arbitrary, capricious, and unreasonable.

We have considered Millian's other contentions and find them to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.