TERRY ALSTON 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NOT FOR PUBLICATION WITHOUT THE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-2954-04T22954-04T2

TERRY ALSTON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_________________________________________________

 

Submitted October 18, 2005 - Decided

Before Judges Axelrad and Payne.

On appeal from a Final Agency Decision

of the Department of Corrections.

Terry Alston, appellant pro se.

Peter C. Harvey, Attorney General,

attorney for respondent (Michael J.

Haas, Assistant Attorney General, of

counsel; Kimberly A. Sked, Deputy

Attorney General, on the brief).

PER CURIAM

Petitioner Terry Alston, an inmate at East Jersey State Prison, was charged with committing the prohibited act of "threatening another person with bodily harm or with any offense against his or her person or his or her property," N.J.A.C. 10A:4-4.1(a), *.005, on evidence, consisting of a disciplinary report, stating that Alston, who had not showered in two days, told Senior Corrections Officer Salnave that he would "fuck him up" if he did not get a shower that day. A ten-day detention was imposed.

Following a hearing at which the corrections officer did not testify for the State and was not called as an adverse witness by petitioner, the hearing officer concluded:

SCO Salnave reports [inmate] threatened to fuck him up. [Inmate] pleads not guilty & his witness supports him. However, the investigation indicates the institution was experiencing low water pressure on Tuesday (1/11) and Wednesday (1/12). [Inmate] showers were restricted. It is reasonable to conclude that Alston was upset about not getting a shower, as his statement to the SCO reflects. I believe the [inmate] did make the statement out of frustration. Charge upheld.

The hearing officer's determination was sustained on administrative appeal, without comment.

Petitioner now appeals to us, claiming that the hearing officer's decision was not based upon substantial and credible evidence but rather on a "belief" that petitioner threatened the officer. He also argues that the hearing officer failed to articulate a reasonable factual basis for his determination that SCO Salnave, who did not appear as a witness, was more credible than petitioner and his cell-mate, both of whom testified at the hearing. Finally, petitioner asserts that, upon appeal, the administrator failed to comply with due process when he did not state the reasons for upholding the hearing officer. He presents his arguments in his pro se brief under the following headings:

POINT I

THE HEARING OFFICER'S DECISION FINDING APPELLANT GUILTY OF VIOLATING PRISON RULES WAS ARBITRARY AND CAPRICIOUS AND NOT BASED UPON SUBSTANTIAL EVIDENCE AS REQUIRED IN N.J.A.C. 10A:4-9.15(a).

POINT II

THE HEARING OFFICER FAILED TO STATE HIS REASONS FOR BELIEVING THE OFFICER'S VERSION OVER THE APPELLANT'S AND HIS WITNESS, THUS, VIOLATING APPELLANT'S RIGHT TO DUE PROCESS OF LAW.

POINT III

THE DEPARTMENT OF CORRECTION'S FINDINGS, UPHOLDING INMATE DISCIPLINE, WERE INADEQUATE, CONTRARY TO THIS COURT'S DECISION IN BLACKWELL V. DEPT. OF CORRECTIONS, 348 N.J. SUPER. 117 (APP. DIV. 2002).

We reverse, finding the reasons for the decision to impose disciplinary sanctions to have been inadequately articulated and the decision to impose discipline to have been based upon insufficient evidence.

I.

We have several concerns with the content of the hearing officer's decision and the adequacy of the evidentiary foundation for discipline in this matter. First, that officer did not set forth with adequate clarity to permit appellate review the rationale supporting his conclusion that a threat of bodily harm sufficient to support a disciplinary violation had occurred.

In Jacobs v. Stephens, 139 N.J. 212 (1995), the Supreme Court held when a prison inmate admits to the use of abusive language, but claims that he did not intend it as an actual threat of bodily harm, a determination whether the remark constituted such a threat must be made, and that determination must be based on an objective analysis of whether the remark conveyed a basis for fear. Id. at 222.

In the present case, we cannot determine whether the requisite analysis took place, since a discussion of whether the alleged remark conveyed a basis for fear in the circumstances presented was absent from the hearing officer's decision.

Although there may be instances in which the threat is of such gravity that further analysis of its perceived import is not necessary, this was not one of them. As we have previously noted, the alleged threat was conditional in nature, since it depended upon a further deprivation of shower privileges. Further, the only evidence supporting the utterance of the threat and its substance, the disciplinary report of SCO Salnave dated January 12, 2005, contained nothing that would conclusively establish whether the threat objectively conveyed a basis for fear. The report stated only:

On the above date and approximate time as I (SCO Salnave) was going from cell to cell making a phone list, I arrived at 24 cell when I/M Alston asked for a shower. I stated "I'm only taking a phone list." He stated that he didn't get a show[er] in two days. I told him that I have not been to work in the last week. He then stated "if I don't get a shower today I'm ga na [sic] fuck you up." I then called for a Sgt, and two S.A.[s].

The hearing officer's evaluation of this evidence is imprecise in its nature. Following the disciplinary hearing, the hearing officer concluded: "I believe the [inmate] did make the statement out of frustration." In a section of the adjudication requiring reasons for the sanction, the hearing officer stated: "To deter threats. The inmate may have been upset, but that is no excuse for this conduct." As we have noted, the hearing officer made no explicit finding as to whether petitioner's remark objectively conveyed a basis for fear. Nor did the hearing officer discuss the remark's conditional nature, or the effect of that conditional expression on a consideration of whether the remark was sufficiently objectively threatening. Moreover, an inference can be drawn from the tenor of the hearing officer's conclusions that the officer did not find the remark to be particularly threatening, since he concluded that he "believe[d]" the statement was uttered in frustration." Whether such inference was intended cannot be determined on the basis of the record before us.

We have previously held in a prison disciplinary context that "an agency's obligation to adequately set forth its rationale in support of a final determination is now beyond cavil." Blackwell v. Dept. of Corr., 348 N.J. Super. 117, 122 (App. Div. 2002). As we stated there:

[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review.

While our scope of review is limited, we cannot be relegated to a mere rubber-stamp of agency action. State-Operated School District of the City of Newark v. Gaines, 309 N.J. Super. 327, 332 (App. Div.), certif. denied, 156 N.J. 381 (1998); Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996). Here were we to accept the naked conclusion of the senior investigator, we would merely be rubber-stamping the Department's opinion, for it provides no real guidance to the conclusion it reached. That we cannot, and will not, do.

[Id. at 123 (quoting Williams v. Dept. of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)).]

See also Johnson v. Dept. of Corr., 375 N.J. Super. 347, 353 (App. Div. 2005) (recognizing that we do not require the same level of detail in prison disciplinary decisions as in some other matters, but nonetheless requiring a record that will permit more than a perfunctory review); Balagun v. N.J. Dept. of Corr., 361 N.J. Super. 199, 202-03 (App. Div. 2003) ("We cannot accept without question an agency's conclusory statements, even when they represent an exercise in agency expertise.").

Second, we cannot tell from the hearing officer's decision whether the appropriate standard of proof was utilized. N.J.A.C. 10A:4-9.15(a) provides:

A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act.

See also Avant v. Clifford, 67 N.J. 496, 530 (1975).

In this case, the hearing officer concluded: "I believe the [inmate] did make the statement out of frustration." It is unclear to us whether that sentence means that the officer believed that the statement had been made, or whether it means that the officer found by substantial evidence that the statement had been made, but believed that it had been made out of frustration. And as we have previously noted, there is no reference to whether the State had established the threatening nature of the statement by substantial evidence.

Third, we find that the hearing officer's credibility determination, and his adjudication as a whole, lacked a sufficient evidentiary foundation. At the hearing in the matter, the State did not present any witnesses, but instead relied solely upon the report of SCO Salnave. In defense, petitioner offered his own testimony as well as that of his cell-mate. Although all three sources were consistent in reporting that Salnave's duty at the time of the incident was to take a phone list, they disagree as to what occurred when he attempted to do so. SCO Salnave's report indicates a complaint by petitioner about the lack of a shower and his utterance of a threat to "fuck up" Salnave if no shower were offered to him that day. In contrast, both petitioner and his cell-mate denied at the hearing that the statement had been made, and testified instead that Salnave had started "screaming" and then had locked up the petitioner.

The hearing officer found for the State on this credibility issue, although his reason for doing so was unexpressed. We are at a loss to determine what the basis for the officer's determination was or could legitimately have been. See Decker v. N.J. Dept. of Corr., 331 N.J. Super. 353, 355 (App. Div. 2000) ("We do not understand how a hearing officer can reject testimony on the basis that it was inconsistent with the charging officer's report."); see also Blackwell, supra, 348 N.J. Super. at 124. Even if the hearing officer disbelieved both petitioner and his corroborating witness, the officer had no evidentiary basis for then crediting the report of SCO Salnave, who did not testify at the hearing.

In this case, the records of the adjudication disclose that petitioner did not request confrontation with Salnave, only to have it denied. Thus, decisions discussing and upholding the right to confrontation are not directly relevant to the present issue. See, e.g., McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs, supra, 139 N.J. 212; Jones v. Dept. of Corr., 359 N.J. Super. 70 (App. Div. 2003); Blackwell, supra, 348 N.J. Super. 117; Decker, supra, 331 N.J. Super. 353; see also N.J.A.C. 10A:4-9.13. Cf. Gross v. N.J. Dept. of Corr., 167 N.J. 626 (2001) (summarily remanding disciplinary adjudication to allow cross-examination of correction officers by inmate). Nonetheless, we find relevant the principle inherent in those decision that, when an inmate is charged with a disciplinary infraction by virtue of conduct directed to or at a corrections officer and the matter turns on the credibility of the officer or inmate, there must be some reasoned evidentiary basis for making that credibility determination. See, e.g., Blackwell, supra, 348 N.J. Super. at 124; Decker, supra, 331 N.J. Super. at 359. Here, there was none, since Salnave did not testify. That his report was credited arguably can thus be attributed as well to bias as to a considered evaluation of the evidence.

Moreover, we have held in Jones that:

[A] hearing officer in a prison disciplinary proceeding may . . . rely on written reports in support of other evidence properly admitted. The residuum rule permits such use in administrative proceedings, see N.J.A.C. 1:1-15.5(b), with the inherent reservation that some legally admissible evidence must be at the basis of every finding.

[359 N.J. Super. at 77.]

In the present case, petitioner's waiver of his right to confrontation justified the admission of SCO Salnave's report, despite the fact that it constituted, at varying points, both single and double hearsay. However, "a fact finding or a legal determination cannot be based upon hearsay alone." Weston v. State, 60 N.J. 36, 51 (1972).

Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony. But in the final analysis for a court to sustain an administrative decision, which affects the substantial rights of a party, there must be a residuum of legal and competent evidence in the record to support it.

[Ibid.]

That residuum of evidence is lacking here, and for that reason, any foundation for the ultimate conclusion of the hearing officer that discipline should be imposed, as affirmed on appeal, is lacking as well. Substantial evidence of guilt simply was not adduced, and the evidential standard of N.J.A.C. 10A:4-9.15(a) and case law articulating that standard clearly was not met.

We recognize that the due process rights of inmates are more restricted than those afforded to persons who are not in custody. McDonald, supra, 139 N.J. at 194; Avant, supra, 67 N.J. at 522, 525; Jones, supra, 359 N.J. Super. at 75; Blackwell, supra, 348 N.J. Super. at 122. However, we find them to have been unfairly restricted in the matter on appeal. This was a case in which no concerns of security or confidentiality precluded testimony by the officer who allegedly witnessed the utterance of the statement in question. See Decker, supra, 331 N.J. Super. at 355 (contrasting cases involving witnesses whose identity must remain undisclosed or whose information must remain confidential). Moreover, it is evident from our prior analysis that the fact of the statement's utterance, the circumstances giving rise to it, and its impact raised substantial issues that required resolution in order for discipline to be legitimately imposed. We are unable to discern how those issues could have been competently resolved in the absence of testimony by SCO Salnave or other equivalent evidence. Because the record lacked evidence other than Salnave's hearsay statement that would provide a foundation for the hearing officer's decision, we find that the State has failed to meet its burden of proof in this disciplinary proceeding against the petitioner.

 
Accordingly, we reverse.

A comparison of the nature of the threats perceived by a corrections officer as objectively threatening and found by a hearing officer to be sufficient to constitute a *.005 violation in Jacobs, supra, 139 N.J. at 216, 223 ("If you want my I.D., step in the back room" and "come on, come on I'll fuck you up") with the statement alleged to have been uttered by petitioner illustrates our point.

(continued)

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A-2954-04T2

December 2, 2005