PERRY R. CERF v. NEW JERSEY DEPARTMENT OF CORRECTIONS

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1508-05T11508-05T1

PERRY R. CERF,

Plaintiff-Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Defendant-Respondent.

__________________________________________________________

 

Submitted August 29, 2006 - Decided September 8, 2006

Before Judges R. B. Coleman and Holston, Jr.

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

Perry R. Cerf, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Kimberly A. Sked, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Perry R. Cerf, appeals the April 10, 2006 final agency decision of the Department of Corrections (DOC), upholding the November 7, 2005 decision of the hearing officer finding appellant guilty and imposing disciplinary sanctions for three counts of prohibited act *.005, threatening another person, and one count of prohibited act *.002, assaulting any person, both in violation of N.J.A.C. 10A:4-4.1.

After finding appellant guilty of all four offenses, the hearing officer recommended that a sanction of 365 days of administrative segregation and 365 days loss of commutation credit with a referral to mental health for assistance be imposed on each offense and that the sanctions be served consecutively for an aggregate sanction of 1,460 days (four years) of administrative segregation and 1,460 days (four years) loss of commutation time.

After a mental health evaluation of appellant was conducted on February 15, 2006 attesting to appellant's adjustment in administrative segregation, the DOC affirmed the decision of the hearing officer and recommended sanction. We affirm.

Appellant is incarcerated at New Jersey State Prison, serving a fifty-year sentence with a mandatory minimum term of forty-seven years and six months on a murder conviction. The adjudicated charges arise out of the following facts: During an interview with prison psychiatrist, Dr. Marina Moshkovich, on September 1, 2005, appellant said that he wanted to kill Associate Administrator Michelle Ricci by breaking her neck, hitting her in the head, beating her up, and choking her. Appellant also stated he wanted to kill Administrator Donald Mee, that he has "a friend on the streets who is ready to do it and is just waiting for a right moment." Dr. Moshkovich filed a "special report" memorializing these facts.

On September 6, 2005, while appellant was being escorted to the medical clinic, appellant told Senior Corrections Officer (SCO) L. Ortiz that, "The first chance [appellant] gets he [is] going to have Commissioner Brown, Mrs. Trent and [him] killed." Finally, on September 19, 2005, appellant, while talking to Dr. Moshkovich, told her that he wanted to tell her something personal. When Dr. Moshkovich leaned nearer, appellant grabbed her by the hair, pulled her head toward the cell's food port and tried to punch her in the face; however, appellant was unable to do so because another SCO was holding his arm. After the assault, appellant was placed in pre-hearing detention.

On September 30, 2005, appellant was served with a disciplinary report for each of these incidents, as well as for fifteen additional disciplinary charges, which were ultimately either dismissed or for which appellant was found not guilty. The disciplinary reports provided appellant with notice that he was being charged with committing the three disciplinary infractions of *.005, threatening another with bodily harm or with any offense against his or her person or property, for his threats against Ricci, Mee, Brown and Trent. Additionally, for grabbing and trying to punch Dr. Moshkovich, appellant received a disciplinary report charging him with committing one disciplinary infraction of *.002, assaulting another person.

Immediately after the disciplinary reports were served on appellant, Sergeant (Sgt.) B. Daniels conducted four separate investigations into the allegations contained therein. During the investigations, appellant pled not guilty to all of the charges. In each case, appellant declined to give a statement or identify witnesses. Daniels referred the charges for courtline adjudications, noting that appellant requested assistance from counsel substitute.

The courtline adjudications of all four charges were conducted consecutively, before Hearing Officer (H.O.) John Oszvart, beginning on October 6, 2005. Many of the exhibits were applied to all adjudications. These documents included: request for polygraph, reasons for denial of polygraph, inmate waiver of appearance at disciplinary hearing form, requests for psychological/psychiatric evaluation, and confidential mental health reports.

On October 4, 2005, in preparation for the October 6, 2005 hearing, the H.O. requested that appellant receive a psychological/psychiatric evaluation to determine: his competency to understand and participate in the proceedings; his responsibility for his actions concerning the infractions; and his potential for decompensation if placed in detention or administrative segregation. The evaluation was made on October 4, 2005. An initial report was proffered on October 4, 2005 and then amended by a subsequent report the next day. The mental health evaluator, Juan Hodelin, found that although appellant suffers from a mental health condition, his condition did not interfere with his ability to: defend himself and understand courtline proceedings; be responsible for his actions; and serve detention or administrative segregation with proper supervision. As to appellant's ability to acceptably function if found guilty with a sanction of administrative segregation being imposed, Hodelin opined that appellant had acceptably functioned in administrative segregation for a period of time in the past and then used self-risk behaviors to create a situation that would warrant removal.

In each matter, appellant entered pleas of not guilty. He requested and was assigned a counsel substitute to assist him. H.O. Oszvart advised appellant of his use immunity rights. The first hearing date for each matter was adjourned because appellant requested a polygraph examination, which was denied on October 13, 2005, on the basis that credibility issues could be determined by the H.O. during the adjudications. The courtline hearings reconvened on October 17, 2005, but were again postponed at the request of counsel substitute, to allow him to review materials.

During each hearing, the correctional facility staff presented documentation in support of the charges. In the adjudication of the threat against Ricci, the DOC proffered the disciplinary report and special report of Dr. Moshkovich. In the adjudication of appellant's threat against Mee, the DOC staff presented the disciplinary report, special reports of Blaustein and Dr. Moshkovich, and a memorandum from Ricci. In the adjudication of appellant's threats against Brown and Trent, DOC staff submitted the disciplinary report and special report of SCO Ortiz. In the adjudication of appellant's assault on Dr. Moshkovich, the DOC presented the special report of SCO Ganesh and Dr. Moshkovich's disciplinary report.

Appellant and counsel substitute were permitted to rebut the charges. On October 20, 2005, in lieu of statements by either appellant or counsel substitute, appellant proffered a five page written defense statement for all adjudications. In that statement, appellant wrote that the incidents arose during periods of acute stress, and due to his mental health condition, he decompensates. Therefore, appellant alleges that did not have any control over his alleged actions. He also argued that he was invoking the provisions of the settlement agreement in D.M. v. Terhune, and had retained counsel. However, on October 21, 2005, appellant refused to attend further hearings and declined further representation by counsel substitute. An inmate waiver form was executed by investigating SCO Camp. That day the proceedings were completed.

Appellant and counsel substitute were not present at appellant's request. Therefore, they did not take advantage of opportunities to make in-person statements, to request statements be given by witnesses on appellant's behalf, or to confront and cross-examine adverse witnesses. Instead, appellant declined this opportunity in each case.

When all of the evidence had been presented, the H.O. reviewed all of the evidence and arguments and rendered findings on the charges. The H.O. found appellant guilty of all charges. In the charge of threat against Ricci, the H.O. found:

[Dr. Moshkovich] reported that [appellant] told her that he wanted to break [Associate Administrator] Ricci's neck, beat her up, hit her in the head, choke her. [Appellant] claims he does not remember due to his mental health illness. [Exhibits] C1 and C2 do not support [appellant's] charges, no evidence to discredit [Dr. Moshkovich's] report or to support his claim. All relied on to determine guilt.

The H.O. recommended sanctions of 365 days administrative segregation (with credit for time served), 365 days loss of commutation credits, and refer to mental health for assistance. These sanctions were imposed based on the confidential mental health evaluations.

With respect to the threat charge concerning Administrator Mee, the H.O. found:

Staff reports this [Inmate] stated he wants to kill [Administrator] Mee, his wife and kids, that he knows personal information about [Administrator] Mee's family that would allow these events to become true, [appellant's] action was witnessed by two other staff members. [Appellant] claims due to his mental health he does not remember anything. Please note C-1 and C-2 which both report he is responsible/competent. No evidence provided to support anything he claims about this event. All relied on to determine guilt.

For this charge, the H.O. also recommended sanctions of 365 days administrative segregation (with credit for time served), 365 days loss of commutation credit, and a referral to mental health for assistance also based on the mental health evaluator's reports.

In the threat charge appellant made against Brown and Trent, the H.O. found:

Two officers report [that] this [inmate] wanted to kill staff Trent, Officers have no reason to fabricate the charge/reports. [Appellant] claims he does not remember due to his mental health condition. [Exhibits] C-1 and C-2 do not agree with the [inmate]. No evidence to discredit the officers['] report[s] or support the [inmate], all relied on to determine guilt.

Accordingly, the H.O. again imposed sanctions of 365 days administrative segregation (with credit for time served), 365 days loss of commutation credit, and a referral to mental health for assistance based on the mental health evaluator's report.

Finally, with respect to the assault charge against Dr. Moshkovich, the H.O. found:

Dr. Moshkovich reports [that] this [inmate] grabbed her hair, pulled her towards him [appellant], attempting to punch her in the face. Staff report is supported by SCO Ganash['s] report in which he witness[ed] this inmate grab her hair, attempt to punch her. [Appellant] claims due to his mental health he does not remember anything (Defendant-1). Please note C-1 and C-2 which both report he is responsible/competent. No evidence provided to support anything [appellant] claims about this event. All relied on to determine guilt.

For this charge, the H.O. again recommended that appellant receive sanctions of 365 days administrative segregation (with credit for time served), 365 days loss of commutation credit, and a referral to mental health for assistance. These sanctions were based on the mental health evaluator's report. The H.O. noted with respect to all four charges that "[appellant's] action could [have] caused a serious injury to the staff."

On October 25, 2005, the DOC received an administrative appeal submitted on appellant's behalf. The bases for the appeal were a violation of standards established by the D.M. v. Terhune settlement agreement, misinterpretation of the facts, a plea for leniency, as well as "other" reasons. Specifically, Anthony Longi, a paralegal and appellant's counsel substitute, argued that the aggregate sanctions were too harsh, appellant was not competent due to his suffering from a [sexual] identity problem, and that Dr. Moshkovich disclosed confidential information. Furthermore, counsel substitute argued that appellant was wrongly denied a polygraph examination.

On November 1, 2005, after reviewing the administrative record, Administrator Ron Cathel denied appellant's administrative appeal and upheld the H.O.'s decision on all of the charges, finding that "[t]here was compliance with the New Jersey Administrative Code on inmate discipline which prescribes procedural safeguards. The decision of the H.O. was based upon substantial evidence." This appeal followed.

During the pendency of this appeal, the DOC moved for and this court granted a remand for the purpose of allowing the DOC to clarify that appellant was able, in light of his mental health condition, to serve the aggregate sanction of four years administrative segregation (less credit against each charge's sanctions for time served in detention during the pendency of the courtline adjudications). An updated mental health evaluation was provided, whereby appellant was noted to be tolerating the administrative segregation without incident. Accordingly, the DOC affirmed its November 1, 2005 final administrative determination.

In appellant's administrative appeal, in which he sought to have his guilty adjudications and resulting administrative segregation sanctions vacated, appellant's paralegal asserted that the H.O. violated applicable standards, misinterpreted facts and imposed excessive sanctions. Appellant's paralegal invoked appellant's severe mental diseases and defects in support of his contentions, asserting that appellant was in the prison's "special needs program" because he is "mentally challenged," is given a "mixture" of "mind altering" psychotropic medications, and suffers from gender identity disorders, which resulted in his attempted self-castrations. The paralegal also appealed the H.O.'s referral of appellant to the same psychiatrist who issued two of the disciplinary charges for which he was found guilty. The paralegal claimed that the psychiatrist breached confidentiality protections under the psychiatrist-patient privilege and that insufficient reasons were issued by Associate Administrator Ricci in upholding the H.O.'s adjudications and resulting sanctions.

Appellant presents the following issues for our consideration:

POINT I

APPELLANT'S SEVERAL MENTAL DISEASES AND DEFECTS IN CONJUNCTION WITH NUMEROUS DUE-PROCESS VIOLATIONS REQUIRE THAT APPELLANT'S ADMINISTRATIVE-SEGREGATION SANCTIONS BE VACATED AND THE MATTER REFERRED TO THE PRISON'S MENTAL HEALTH DEPARTMENT FOR APPROPRIATE PSYCHOLOGICAL TREATMENT.

A. LEGAL BACKGROUND: DISCIPLINARY PROCEDURE AND RELEVANCE OF PSYCHOLOGICAL DISORDERS.

B. ASSESSMENT OF MENTAL DISEASES AND DEFECTS: IMPACT OF PSYCHOLOGICAL DISORDERS ON APPROPRIATENESS OF ADMINISTRATIVE SEGREGATION.

C. CONFLICT OF INTEREST: ADMINISTRATIVE APPEAL.

D. CONFLICT OF INTEREST: PRE-ADJUDICATION AND POST-ADJUDICATION PSYCHOLOGICAL ASSESSMENTS.

POINT II

THE PRISON PSYCHOLOGIST BREACHED HER CONFIDENTIALITY DUTIES AND VIOLATED APPELLANT'S PSYCHOLOGIST-PATIENT PRIVILEGE BY DISCLOSING ALLEGED STATEMENTS MADE BY APPELLANT DURING HER PSYCHOLOGICAL EVALUATION.

POINT III

THE STATEMENTS ALLEGEDLY MADE BY APPELLANT WERE INSUFFICIENTLY CREDIBLE AND THUS DID NOT CONSTITUTE THREATS.

POINT IV

APPELLANT WAS SUBJECTED TO IMPROPER INVESTIGATORY QUESTIONING BASED ON THE INTERROGATOR'S FAILURE TO ADVISE APPELLANT OF HIS RIGHT TO REMAIN SILENT.

POINT V

THE SANCTIONS IMPOSED UPON APPELLANT BY THE DISCIPLINARY HEARING OFFICER WERE EXCESSIVE AND MUST BE REDUCED.

Appellant contends that in adjudicating his multiple disciplinary charges, the prison and its officials consistently ignored his psychological disorders and systematically denied him his due-process rights. Moreover, appellant contends that the prison administration's adjudication of his administrative appeal was fatally flawed because of conflicts of interest, as the prison official who issued one of his disciplinary charges was the same prison official who decided and denied his administrative appeals. He also argues that conflicts of interest also adversely affected his pre-adjudication and post-adjudication psychological assessments, as the psychologist who evaluated his mental condition issued some of the disciplinary charges. Appellant submits that these due-process violations require that his administrative segregation sanctions be vacated and the matter referred to the prison's mental health department for appropriate psychological treatment and rehabilitation.

The limited due process rights to which inmates in our prisons are entitled were enumerated by our Supreme Court in Avant v. Clifford, 67 N.J. 496, 525-30 (1975). The Avant due process rights applicable to appellant's appeal are as follows: The right to [w]ritten notice of the charges at least 24 hours prior to the hearing, Avant, supra, 67 N.J. at 525, which was satisfied because appellant received notice of the charges against him at least twenty-four hours prior to the hearings. The charges were served on September 30, 2005, and the hearings began on October 6, 2005. Although the hearing did not begin within seventy-two hours of appellant's placement in pre-hearing detention, that postponement was due to the hearing officer seeking a psychological/psychiatric evaluation to determine appellant's ability to participate in the disciplinary process, responsibility for his actions, and ability to tolerate sanctions such as administrative segregation. There was, therefore, a reasonable basis for delay. See N.J.A.C. 10A:4-9.5d. Any delays thereafter were at appellant's or counsel substitute's request. Thus, appellant received due process with respect to this factor.

The right to an impartial tribunal, which may consist of personnel from the central office staff of the Department, Avant, supra, 67 N.J. at 525-28, was likewise afforded because H.O. Oszvart, a member of the DOC's central office staff, conducted the hearings on the alleged infractions. He first ascertained that appellant was able to participate in the disciplinary process and would have been responsible for his actions if the allegations were true, notwithstanding the fact appellant has a mental health condition. The H.O. requested a psychological/psychiatric evaluation and by his receipt of the confidential mental health evaluations of October 4 and 5 attested to appellant's competency to defend himself and understand courtline proceedings.

Prior to the hearing, appellant was read his use immunity rights by the investigating officer. Thereafter, the H.O. also advised appellant of his use immunity rights. Appellant was permitted to offer a written statement at each of the hearings. However, appellant, by affidavit, waived attendance by himself or counsel substitute at the hearings. By doing so, appellant declined the opportunity to obtain witness statements on his own behalf, to submit additional written documents, present verbal statements, or to confront and cross-examine adverse witnesses. The record is devoid of any instance where appellant or counsel substitute was precluded from presenting a defense, except at appellant's own behest.

Although appellant argues that he was improperly "interrogated," his contention lacks merit. The record reflects that staff reported to Associate Administrator Ricci that appellant had threatened to kill her. When Ricci asked appellant about these threats, he denied the threats toward her, but admitted making threats toward Administrator Mee and his family. We are satisfied that Ricci's limited conversation with appellant cannot fairly be construed to be an investigation. The record reveals that for each charge, appellant was advised of his use immunity rights during service of the charges and before the adjudications, in accordance with the DOC's rules. N.J.A.C. 10A:4-9.3. "Use immunity" means that "any statements made in connection with the disciplinary hearing or any evidence derived directly or indirectly from those statements shall not be used in any subsequent criminal proceeding." Ibid. "The failure to give this warning by the investigating custody staff member shall not be grounds for dismissing the disciplinary report." Ibid. Appellant made no admissions that appear in any of the investigations of the alleged infractions. Appellant only claimed not to remember the events in the courtline adjudications. Therefore, appellant's allegation that he was denied his Fifth Amendment right not to incriminate himself is without merit, and appellant's due process rights were not violated. We are satisfied that the DOC gave appellant all of the due process protections to which he was entitled.

Appellant contends that the DOC unreasonably denied him the polygraph examination that he requested. Appellant requested the polygraph on the basis that the test would prove his contention that he had no recollection of making the threats of which he was accused. Administrator, Ronald H. Cathel, refused the request concluding, after reviewing the charges and evidence, that "any issues of credibility can be addressed by the hearing officer at your hearing."

This court in Ramirez v. Department of Corrections, 382 N.J. Super. 18, 20 (App. Div. 2005), held that "an inmate's right to a polygraph is conditional and that the request should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." We further determined that impairment of the fundamental fairness of the disciplinary process will be evidenced by inconsistencies in the statements of SCO's, or some other extrinsic evidence involving credibility such as a statement by another inmate or staff member on the inmate's behalf. Id. at 24. "Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Ibid. We made clear that an inmate's request for a polygraph under N.J.A.C. 10A:3-7.1 is "not required on every occasion that an inmate denies a disciplinary charge against him." Id. at 23-24.

In this case, the allegations were corroborated by investigative reports, and no contradictory extrinsic evidence, either documentary or testimonial, was offered by appellant, nor were there inconsistencies in the reports that were proffered, which would seriously have placed in issue the credibility of appellant's accusers. We conclude, therefore, that the prison administrator's discretionary denial of appellant's request for a polygraph was not "arbitrary, capricious or unreasonable." Id. at 24.

Appellant contends that the statements allegedly made by him were insufficiently credible and thus did not constitute threats. Appellant cites to Jacobs v. Stephens, 139 N.J. 212 (1995), where our Supreme Court set forth the elements required for finding an inmate guilty of threatening another with bodily harm under N.J.A.C. 10A:4-4.1(a) *.005. The Court stated:

The determination of whether a remark constitutes a threat is made on the basis of an objective analysis of whether the remark conveys a basis for fear. In the context of criminal prosecutions, where the prevailing evidentiary standard is much higher than that applicable to disciplinary proceedings, a person may be convinced of terrorist threats when the words or conduct [are] of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer.

[Id. at 222 (internal quotations omitted).]

Appellant argues that under this standard, his statements did not constitute threats. He additionally contends that his alleged statements were insufficiently credible and were the product of his incoherent "ramb[ling]" caused by his psychological disorders. Thus, an "objective analysis" of his statements, viewed in the context of his severe mental diseases and defects, leads to the inescapable conclusion that such statements were incredible and, therefore, incapable of "convey[ing] a basis for fear."

An appellate court ordinarily will reverse the decision of an administrative agency only when the agency's decision is "arbitrary, capricious or unreasonable or [] is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An adjudication of guilt of an infraction must be supported by "substantial" evidence. McDonald v. Pinchak, 139 N.J. 188 (1995); Avant, supra, 67 N.J. at 496; codified at N.J.A.C. 10A:4-9.15(a). As explained in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Moreover, the analysis in a threat case is whether an objective analysis conveys a basis for fear. Jacobs, supra, 139 N.J. at 222. The words must be "of such a nature as would reasonably convey the menace or fear of death to the ordinary hearer." Id. at 224.

In these cases, witnesses either heard appellant's threats concerning other staff, or were the victim of his assault. In some of the incidents, more than one witness was present. Furthermore, psychological evaluations revealed that appellant was responsible for his actions during these occasions. H.O. Oszvart found that appellant's written explanations that he could not remember the events were not believable and not supported by the mental health evaluations.

The confidential mental health evaluation of Juan Hodelin dated October 4, 2005, states:

IM states that at the time of the infractions he was not aware of his actions and became aware after having received the disciplinary charges or when the COs told him of the behaviors. He claims that he had "blacked out" and could not recall the alleged actions noted in the incidents, but remembers the results since some left physical damage to himself and/or his environment. He claims that some of his actions were induced by the side effects of the psych meds used. He is requesting that a polygraph test be provided to him.

It is observed that the IM's statements are not supported by his psychiatric diagnoses and not indicative of behavior created by the use of stabilizing psych meds, but relevant to his chosen course of action to bring attention to himself in an inappropriate manner.

The H.O. determined that the staff reports constituted substantial credible evidence in the record. He further found that multiple staff members gave consistent accounts and none of them had a reason to fabricate the claims. Moreover, the H.O. found that on at least one occasion, appellant gave enough detail to show that he could carry out his plan to hurt Administrator Mee's family. Furthermore, appellant had made threats of harm concerning certain staff, such as Administrative Mee, on multiple occasions.

Conversely, the H.O. reasonably found appellant's assertions that he had no recollection of the events were not credible because they were not corroborated by the mental health evaluations. The DOC, in affirming the H.O.'s findings, reached a determination that appellant was guilty of committing the three threats and one assault based on the substantial credible evidence before it. The DOC staff found the threats credible, such that they took follow-up steps to notify one of the subjects that the threats were made and to notify the institution's Special Investigation Division. We are satisfied that there was substantial evidence to support the H.O.'s finding of a reasonable basis for fear by the staff members appellant threatened and the psychiatrist, who he assaulted.

Appellant contends conflicts of interest also adversely affected his pre-adjudication and post-adjudication psychological assessments, as the psychologist who evaluated his mental condition issued two disciplinary reports resulting in the psychological assessments. In particular, appellant asserts that psychiatrist, Dr. Oshkovich, issued Charges Six (threatening another with bodily harm, September 1) and Seventeen (assaulting another person, September 19). In the latter disciplinary charge, Dr. Moshkovich claimed that appellant assaulted her explaining as follows: "I was pulled by him by the hair. He was attempting to punch me in the face, but he could not do it, as [SCO] Ganesh was holding his arm."

Given the significance of the pre-adjudication and post-adjudication psychological evaluations, required by N.J.A.C. 10A:4-5.1(a)11, N.J.A.C. 10A:4-9.5 and N.J.A.C. 10A:5-3.2(j)5, appellant contends that the prison administration committed reversible error by assigning the same psychiatrist who issued two of appellant's disciplinary charges. This constituted a conflict of interest and a violation of appellant's due-process rights. Appellant's contention is without merit. Dr. Moskovich did not perform the assessments that were responsive to the H.O.'s request. Rather, the record reflects that Mental Health Evaluator Hodelin rendered the assessments. Likewise, appellant's claim that Dr. Moskovich violated patient confidentiality by disclosing his threats and assault is without merit. As appellant notes, an exception to confidentiality in the prison context is "where the inmate discloses planned action, which involves a substantial risk of imminent serious injury, disease or death to the inmate or other identifiable persons." N.J.A.C. 10A:16-4.4(b)1. Appellant is incarcerated on a conviction for murder, a violent crime. He provided detailed plans of wanting to kill DOC staff, stating that he wanted to break the staff member's neck, hit her, beat her, and choke her. He later assaulted her. Appellant also told Dr. Moskovich that he wanted to hurt Administrator Mee, and was planning harm to Administrator Mee's family, by way of a friend who was not incarcerated. Appellant's threats demonstrated a plan of action involving death or serious injury to Administrator Mee and his family. That appellant made similar statements concerning Administrator Mee to other staff, and that the staff ultimately took the action of notifying Mr. Mee and the Special Investigation Division, demonstrates the level of credibility that DOC staff gave to appellant's statements. Staff did not take these statements as the "incoherent ramblings" appellant claims them to be. We are satisfied that Dr. Moskovich reasonably reported appellant's threats.

We likewise find without merit appellant's contention that Associate Administrator Ricci erred in signing for Administrator Cathel on the Disposition of Disciplinary Decision. The record confirms that Associate Administrator Ricci signed on Administrator Cathel's behalf and not in her own official capacity, and that Administrator Cathel personally reviewed the record, including appellant's mental health history.

Appellant submits that the aggregate of 1,460 days of administrative segregation imposed as a sanction in this case was excessive and must be reduced. The H.O. imposed administrative segregation sanctions on Charges Six (threatening another with bodily harm, September 1); Eight (threatening another with bodily harm, September 2); Nine (threatening another with bodily harm, September 6); and Seventeen (assaulting another person, September 19). On each individual charge, appellant received 365 days of administrative segregation, 365 days of loss of commutation time, and referral to the institutional psychiatric department. These charges were ordered to be served consecutively. Viewing the sanctions in their totality, appellant received an aggregate sanction of 1,460 days (four years) of administrative segregation with credit for time served on each charge and 1,460 days (four years) of loss of commutation time.

Title 10A enumerates certain sanctions that are permitted to be imposed by the H.O. upon an inmate who has been found guilty of an asterisk-based disciplinary charge. These sanctions include:

1. Up to fifteen days disciplinary detention;

. . . .

3. Administrative segregation for a specified time not to exceed one year, subject to confirmation by the Institutional Classification Committee;

4. Loss of commutation time up to 365 days, subject to confirmation by the Administrator;

. . . .

11. Referral to the Mental Health Unit for appropriate care/treatment.

[N.J.A.C. 10A:4-5.1(a).]

With the exception of disciplinary-detention sanctions (see N.J.A.C. 10A:4-5.3(a)), Title 10A does not impose limitations on consecutive sentencing. However, the H.O. must tailor the sanctions to the inmate by considering, among other things, the "inmate's history of or the presence of mental illness." N.J.A.C. 10A:4-9.17(a)5.

Appellant contends that under these provisions, the H.O. abused his discretion by imposing administrative segregation sanctions aggregating four years. Appellant contends the H.O. failed to consider or fully appreciate his severe mental diseases and defects, which he asserts substantially contributed to his alleged misconduct. The psychological disorders, he submits, constituted mitigating factors that would have warranted less severe sanctions on each individual disciplinary charge.

In a short amount of time, appellant made multiple threats against multiple staff members, culminating in an actual assault. The sanctions imposed for each charge are within the DOC's parameters for an asterisk offense. N.J.A.C. 10A:4-5.1(a)3, 4 and 11. Appellant's infractions were serious and deserving of severe penalties, as long as he would not deteriorate due to his mental health condition.

In the associate administrator's April 10, 2006 decision, the administrator states that the DOC's upholding of the H.O.'s decision as to sanctions was reconsidered in light of a subsequent mental health evaluation dated February 15, 2006. That mental health evaluation, signed by Lawrence Weinberger, PhD, states:

I/M [appellant's] mental health has not deteriorated by virtue of him being in Ad Seg. I/m is a highly volatile individual behaviorally & emotionally. His recent adaptation in Ad Seg has not been as problematic as he has displayed in other settings.

I/m [appellant] is unlikely to experience a deterioration in his functioning from his current level because he remains in Ad Seg. Despite recent conflicts with an inmate in another cell on his tier, I/M can be managed in Ad Seg with regular interventions from MH staff.

Appellant's contention that he cannot tolerate administrative segregation due to his mental health conditions is thus not supported by the record. The February 15, 2006 mental health evaluation attests to appellant's acceptable toleration of administrative segregation. The substantial credible evidence in the record demonstrates that appellant was both responsible for his actions and able to tolerate the sanctions. The aggregate sanctions were imposed in compliance with N.J.A.C. 10A:4-5.1(a). Further, the sanctions provided for referral to mental health for assistance. The mental health evaluation of February 15, 2006 verifies that appellant's mental health status has not deteriorated due to the sanctions. We are satisfied, therefore, that the sanctions imposed were reasonable and did not constitute an abuse of the administrator's discretion.

Affirmed.

 

Some of the charges involved incidents of self-mutilation by defendant of his penis and scrotum.

D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999), was a class action lawsuit filed in the U.S. District Court, District of New Jersey, which defined the class as all persons who suffered specified mental health disorders such that they are unable to meet the functional requirements of prison life without mental health treatment who are confined in DOC facilities. The settlement required an amendment to Title 10A establishing procedures and due process safe guards pertaining to inmate discipline, which take into account an inmate's psychological disorders, especially when determining whether to impose administrative-segregation sanctions on an inmate.

Appellant's administrative appeal also concerned another charge not at issue here, for committing prohibited act N.J.A.C. 10A:4-4.1, .152, "destroying, altering, or damaging government property, or the property of another person," for which appellant was found guilty and only sanctioned with restitution.

(continued)

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A-1508-05T1

 

September 8, 2006