JOSE NUNEZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4042-04T24042-04T2

JOSE NUNEZ,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted January 9, 2007 - Decided

Before Judges Lisa and Holston, Jr.

On appeal from a Final Agency Decision of the Department of Corrections.

Jose Nunez, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

In this prison disciplinary violation case, appellant, Jose Nunez, an inmate at the Adult Diagnostic and Treatment Center (ADTC), was found guilty of three disciplinary violations, contrary to N.J.A.C. 10A:4-4.1, arising out of two separate incidents.

I.

Appellant's first disciplinary offense was initially charged as a November 14, 2004, violation of disciplinary infraction .051, engaging in sexual acts with others. On November 29, 2004, the hearing officer (HO) conducted a courtline hearing and adjudicated appellant guilty of the charge and imposed sanctions. The HO's guilty finding and sanctions were upheld on administrative appeal by the ADTC administrator. On April 14, 2005, appellant filed his notice of appeal to this court from his adjudication on the .051 charge. On March 15, 2005, the Department of Corrections (DOC) filed a motion with this court for remand in order to re-adjudicate the .051 charge. We granted the motion on April 13, 2005.

Thereafter, pursuant to N.J.A.C. 10A:4-9.16, the HO amended the .051 charge to disciplinary infraction .013, unauthorized physical contact. On May 9, 2006, appellant pled guilty to the amended charge. Based on appellant's plea of guilty and the report and confrontation answers of the investigating officer, the HO found appellant guilty of disciplinary infraction .013 and imposed sanctions of fifteen days detention, sixty days loss of commutation credit, ninety days administrative segregation and fifteen days loss of recreation privileges, with credit for time served on the .051 adjudication.

On May 9, 2006, appellant administratively appealed the sanctions imposed to the ADTC administrator, seeking leniency, based on his prior good record within the institution. The administrator, by Disposition of Disciplinary Appeal dated May 11, 2006, upheld the sanctions as proportionate to the offense.

Appellant has not filed an amended Notice of Appeal of the May 11, 2006 Disposition of Disciplinary Appeal, upholding the decision of the HO adjudicating appellant guilty of .013 and imposing sanctions, nor has appellant filed a supplemental brief addressing his .013 adjudication. We, therefore, conclude that appellant has chosen not to appeal his .013 adjudication. We deem implicit, by virtue of the HO's amendment of the .051 charge to a .013 charge on remand by this court, that the .051 adjudication is vacated. As a result, we conclude that appellant's appeal of the November 30, 2004 decision of the ADTC administrator upholding the HO's adjudication finding appellant guilty of infraction .051 is moot. R. 2:8-2; see Pressler, Current N.J. Court Rules, comment 1.2.1 to R. 2:8-2 (2007). We add the following.

The charge against appellant resulted from Senior Corrections officer (SCO) Madden's November 14, 2004 observation, from an observation tower, of appellant and another inmate hugging and kissing in the recreation yard. Based on what the SCO deemed appellant's impermissible contact with another inmate, appellant was charged with .051. Appellant pled not guilty and claimed he was not engaging in sexual acts, rather he was upset as a result of the recent suicide of another inmate and was engaged in consolation hugging with the other inmate in the recreation yard.

During the adjudication of the amended charge, appellant and his counsel substitute were permitted to make statements, appellant was provided the opportunity to request witness statements, which were obtained and considered by the hearing officer, and appellant and counsel substitute were offered the opportunity to confront/cross-examine SCO Madden during both the investigation and adjudication. The Adjudication of Disciplinary Charge reflects that the HO's decision finding appellant guilty of the amended charge of .013, unauthorized physical contact, was based on appellant's plea of guilty and his admission that the "inmates were hugging as described by [SCO Madden]." Additionally, the HO based his decision on SCO Madden's report and her answers to confrontation questions, which stated that she "saw the inmates hug and kiss." SCO Madden's report and her confrontation answers were consistent with each other. Thus, we are satisfied that appellant's adjudication of guilt of infraction .013 was supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Appellant's arguments, which we comment on below, were made in support of his appeal of the now vacated .051 charge of engaging in sexual acts with others. Appellant contends that because he is a "potential candidate someday" for civil confinement under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, he should be given greater due process protections in a disciplinary hearing than generally are afforded to inmates charged with disciplinary offenses. The due process protections granted to inmates in disciplinary proceedings were established by our Supreme Court in Avant v. Clifford, 67 N.J. 496, 525-46 (1975). In McDonald v. Pinchak, 139 N.J. 188, 202 (1995), the Supreme Court reaffirmed the due process requirements, which the Court established in Avant, as "strik[ing] the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates."

Alternatively, appellant argues that a disciplinary adjudication should not be considered in evaluating an involuntary civil commitment under the SVPA. There is no indication in the record before us that appellant is currently being considered for SVPA commitment. Therefore, appellant's arguments are not ripe for adjudication in this appeal. See K. Hovnanian Companies of North Central Jersey, Inc. v. NJDEP, 379 N.J. Super. 1, 9-10 (App. Div. 2005). Further, we are convinced that appellant's contention is not legally supportable. A judge deciding whether there should be an SVP commitment may consider any and all evidence, including an inmate's disciplinary infractions, which are relevant to an offender's likelihood to engage in sexual violence and determine the proper weight to be given to the evidence considered. See In Re Commitment of R.S., 339 N.J. Super. 507, 539 (App. Div. 2001), aff'd, 173 N.J. 134 (2002).

II.

Appellant also appeals the December 15, 2004 Disposition of Disciplinary Appeal in which the ADTC administrator upheld the December 14, 2004 adjudication of the HO finding appellant guilty of disciplinary infraction *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and infraction .256, refusing to obey an order of a staff member, and imposing combined sanctions for both charges of fifteen days detention and 120 days loss of commutation credit and 120 days administrative segregation for the *.306 charge.

On December 10, 2004, after appellant was adjudicated guilty of infraction .051 and the ADTC administrator upheld the guilty findings and sanctions, appellant was scheduled to be moved from his detention cell to an administrative segregation cell. As a result, Sergeant (Sgt.) Diehm ordered appellant to pack up his belongings and move them to another cell. According to the December 10, 2004 incident report form authored by Sgt. Diehm, when Sgt. Diehm looked through the foodport in the cell door, he could see that appellant had a large amount of property. Appellant was removed from his cell and cuffed so that his items could be searched before he moved. Sgt. Diehm entered appellant's cell and noticed that he had hardcover books and other personal effects, which are not permitted in detention. These items were placed outside the cell until the property could be inventoried.

Sgt. Diehm ordered appellant to return to his cell to get his remaining property and move to another cell. Appellant got to the cell door and stated, "I want my religious book," and stood in the hallway. Sgt. Diehm again ordered appellant to get his property and move. Appellant responded, "I am not moving without my religious book." Sgt. Diehm grabbed appellant to move him back into his cell and appellant stated, "Get your hands off me" in an aggressive and threatening tone. Sgt. Diehm pushed appellant back into his cell and advised Officer Poupart to call control and report that an inmate was refusing to move.

According to the investigative report of Sgt. Collins, because appellant became aggressive and refused to move, an emergency bell was activated and all inmates were ordered to lock into their cells. All movements, including the yard movement, basement workers, gym movement and groups were stopped for approximately thirty minutes, until the code was cleared. Based on appellant's refusing to change cells and the resulting disturbance to facility movement, appellant was charged with disciplinary infractions .256, refusing to obey an order of any staff member, and *.306 conduct disrupting or interfering with the security or orderly running of the correctional facility.

On December 10, 2004, Sgt. Collins served the charges on appellant and began conducting the investigation of the charges. Sgt. Collins determined that the charges had merit and forwarded the matter to courtline for a hearing.

On December 14, 2004, the HO conducted the courtline adjudication of the charges. Appellant pled not guilty, and declined witness statements and confrontation/cross-examination. Based on the officers' reports, the HO adjudicated appellant guilty of both charges. The December 14, 2004 Adjudication of Disciplinary Charges indicates the following reasons for the HO's decision.

Inmate pleaded not guilty to conduct which disrupts. He stated he didn't do anything except ask for his religious book several times. He stated he put it with his items after they were searched but by then a code was called. By his own statement, he admits to not following directions and cooperating. The inmate could have moved and requested any item he needed later. Due to his lack of cooperation, a code was called that delayed movement. Inmate requested no witnesses or confrontation of staff. Charge is upheld.

On December 15, 2004, The ADTC administrator upheld the guilty findings and sanctions. On April 14, 2005, appellant appealed the guilty findings and sanctions to this court.

Appellant argues that the findings of guilt were not supported by substantial credible evidence, that he was denied due process protections, and that he should have been provided with the confidential mental health evaluations. After a thorough examination of the record, we are satisfied that substantial credible evidence supports the HO's findings of guilt and the ADTC administrator's upholding of the HO's findings. See Henry, supra, 81 N.J. at 579-80.

We are equally satisfied that appellant was provided the full panoply of rights due an inmate in a prison disciplinary proceeding. Appellant had twenty-four hours notice of the charges prior to the hearing on the merits. The .256 and *306 charges were served on appellant on December 10, 2004, and the adjudication was conducted on December 14, 2004. Appellant's hearings were conducted by HOs who were members of the Department's Central Office Staff, and thus were impartial tribunals. See McDonald, supra, 139 N.J. at 196.

During the adjudication of the charges, appellant was permitted the opportunity to make a statement on his own behalf and was provided the opportunity to request witness statements but declined the opportunity to do so. Line 14(c) of the adjudication provides an entry for: "All witnesses the inmate asks to be called including those requested through the investigator." The HO noted "none requested," and "no further requests at courtline proceeding."

Appellant was offered the opportunity to confront/cross-examine witnesses both during the investigation and the hearing, and declined the opportunity. Line 15 of the adjudication states: "List of adverse witnesses the inmate requests to confront/cross-examine including those requested through the investigator." The HO noted, "offered/declined."

Pursuant to N.J.A.C. 10A:4-9.12, an inmate charged with an asterisk offense must be afforded counsel substitute. Because one of the charges against appellant was an asterisk offense, appellant was afforded the assistance of counsel substitute during the hearing. Appellant and counsel substitute were shown the adjudication report and counsel substitute's signature on line sixteen acknowledges that the information contained in lines one through fifteen accurately reflects what took place at the disciplinary hearing.

Appellant complains that he was not provided the investigative report or the witness statements during the adjudication of the .256 and *306 charges. However, this contention was not raised during the hearing or in his administrative appeal. Although such documents are not automatically provided to the inmate, had appellant requested to see the documents, the HO could have addressed this issue and might well have provided appellant with the requested materials. Appellant cannot now complain about not receiving documents when he did not raise this issue before the HO or on appeal to the ADTC administrator.

Appellant is not entitled to the confidential mental health evaluation. Pursuant to N.J.A.C. 10A:22-2.7(f), "[c]opies of mental health records shall not be provided to inmates." The mental health evaluation at issue concerns appellant's responsibility and competency to understand the proceedings, and the effects of his placement in detention. Such mental health evaluations are confidential in nature in order to allow the evaluator to freely and honestly evaluate the inmate without the risk of retaliation or reprisal. We are, therefore, satisfied that the HO correctly withheld the mental health evaluations, which are confidential to the inmate, pursuant to the Administrative Code.

Appellant argues that he should have been permitted to appear before the Institutional Classification Committee when it considered whether to approve the HO's imposition of administrative segregation, pursuant to N.J.A.C. 10A:4-5.2(a)(8). There is no due process requirement that an inmate be permitted to appear before the committee, rather, the review is an administrative review of the adjudication reports and documentation.

Appellant argues that his placement in detention and administrative segregation violated the Eighth Amendment prohibition against cruel and unusual punishment. He bases his argument largely on Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002). However, the holding in Leamer is limited to inmates who were sentenced pursuant to N.J.S.A. 2A, not 2C. Id. at 538 n.4. The court's reasoning in Leamer was that 2A inmates are sentenced to an indeterminate term, which had strictly therapeutic goals, and an inmate's release was entirely dependent on his progress in sex offender treatment. Leamer, supra, 288 F.2d at 539. However, inmates, such as appellant, who were sentenced under 2C have a determinate term, and their sentences contain both a therapeutic and a punitive component. Id. at 540. Therefore, 2C inmates are not entitled to unconditional therapy, regardless of their behavior. If an inmate breaks the department's rules, he is subject to disciplinary sanctions, which may include disciplinary detention and administrative segregation. As a result of the detention, an inmate may not have access to sex offender therapy. However, this is a consequence of the inmate's own violation of the institution's rules. We reject appellant's argument that he is permitted to break prison rules without consequence.

Unless a court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed. Henry, supra, 81 N.J. at 579-80. Additionally, an adjudication of guilt of an infraction must be supported by "substantial credible" evidence. Ibid.

As to the .256 charge, the HO relied on Sgt. Diehm's report, which stated that appellant refused to gather his items and move to another cell. Although appellant claimed that he did not refuse, he admitted that when Sgt. Diehm ordered him to retrieve his belongings, instead of complying, he asked for his book and would not leave without it.

As to the *.306 charge, the HO based her decision on Sgt. Diehm's report that appellant became "aggressive and threatening" towards him, and the fact that appellant's actions caused all movements to be stopped for thirty minutes.
We are satisfied the evidence supports the HO's finding that appellant "admits to not following directions and cooperating" and that "[d]ue to his lack of cooperation, a code was called that delayed movement."

We find defendant's adjudications by the HO on both the .256 charge and the *.306 charge were based on substantial credible evidence in the record. We are further satisfied that the ADTC administrator properly upheld the HO's decision.

Affirmed.

 

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A-4042-04T2

February 1, 2007