TIFFANY DOHSE 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NOT FOR PUBLICATION WITHOUT THE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 only binding 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

TIFFANY DOHSE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________

December 19, 2016

Submitted September 14, 2016 Decided

Before Judges Fuentes and Carroll.

On appeal from the New Jersey Department of Corrections.

James S. Friedman, attorney for appellant.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Tiffany Dohse is an inmate at the Edna Mahan Correctional Facility (hereinafter "EMCF") serving a two-year and one-month term of imprisonment for third degree burglary. N.J.S.A. 2C:18-2. Dohse appeals the final decision of the Administrator of EMCF, which upheld a hearing officer's determination that Dohse committed three disciplinary infractions: .254, refusing to work or to accept a program or housing unit assignment; *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility; and .402, being in an unauthorized area, all prohibited acts in violation of N.J.A.C. 10A:4-4.1.

The Administrator also accepted the hearing officer's sanction recommendations. Thus, on disciplinary infraction .254, Dohse received ten days of detention, ten hours of extra duty, ninety days of administrative segregation, of which sixty days were suspended, and sixty days of lost commutation time, which were also suspended. On the disciplinary infraction *.306, Dohse received fifteen days of detention, 240 days of administrative segregation, and a thirty-day suspension of her recreation privileges. The hearing officer did not impose additional sanctions for disciplinary infraction .402.

Dohse argues the hearing officer's findings were not supported by the record. She also argues that the sanctions she received were more punitive than the sanctions imposed on another inmate who was also found to have committed the same disciplinary infractions. After reviewing the record before us and mindful of our standard of review, we affirm. We derive the following facts from the incident report filed by Sergeant Tita Trombetta.

At approximately 7:15 p.m. on June 19, 2015, Lieutenant Altarique Washington encountered Dohse and fellow inmate Chante Jones as they were standing in front of gate #1, which is located at the entrance to the EMCF maximum compound. Washington ordered Trombetta to tell Dohse and Jones "to leave the area and return back to their housing units." Trombetta also asked the two women to produce their inmate identification cards. Both Dohse and Jones refused to comply. Trombetta then gave the two inmates a "direct order to leave the unauthorized area[.]" Again both inmates refused to move. Faced with this intransigence, Trombetta ordered Dohse and Jones to turn around to be handcuffed. They again both disobeyed the command.

In response, Washington ordered Trombetta "to deploy a burst of OC spray1 [onto] Inmate[s] Dohse and [] Jones to gain [their] compliance." Trombetta followed her superior officer's order and sprayed the two women with OC in an effort to obtain their compliance. Dohse and Jones remained defiant and undaunted by the escalation of force.

The standoff ended when Washington sprayed "a burst of OC onto each inmate." Dohse and Jones finally lay on the ground. They were next handcuffed, physically removed from the area, and brought to the facility's hospital where they were "decontaminated in the hospital shower."

On June 23, 2015, the hearing officer convened a hearing to adjudicate the disciplinary infractions. Two days later, Dohse pled not guilty to disciplinary infractions .254 and *.306, but pled guilty to disciplinary infraction .402. She was assigned counsel substitute. Dohse declined to call any witnesses, but wrote: "I was in A Cottage for 2 weeks. [T]he SCO [Senior Corrections Officer] told me to walk down to get a charge to get moved out[t]a A Cottage. I have a fear of dogs & A has dogs." Her counsel substitute requested leniency.

The hearing officer found Dohse guilty on all of the disciplinary infractions. Appellate review of a State agency is limited to determining: (1) whether the agency followed the law; (2) whether the agency's decision is supported by substantial evidence in the record; and (3) whether, in applying the law to the facts, the agency reached a supportable conclusion. City of Jersey City v. Jersey City Police Officers Benevolent Ass'n, 154 N.J. 555, 567 (1998). In matters involving inmate disciplinary hearings, "[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). See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction).

Here, Dohse does not dispute that she knowingly disobeyed Sergeant Trombetta's direct orders to leave the area and submit to being handcuffed. She merely offers an explanation for her defiance, which the hearing officer was entitled to reject as a defense and disregard as a mitigating factor. Dohse's argument alleging she improperly received harsher sanctions than Jones is equally unavailing. Nothing in the record suggests Dohse suffered from some form of bias. We will reverse an administrative agency's decision only when the record shows it was arbitrary, capricious, or unreasonable. Mejia, supra, 446 N.J. Super. at 376. Under these circumstances, the hearing officer has the discretion to impose the sanctions that Dohse received for knowingly defying Sergeant Trombetta's direct orders.

Affirmed.

1 OC spray, a/k/a pepper spray, is a chemical agent used by Correction Officers to subdue unruly or noncompliant inmates. See Mejia v. N.J. Dep't of Corrs., 446 N.J. Super. 369, 372 (App. Div. 2016).