SANTO ISLAM v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1515-05T11515-05T1

SANTO ISLAM,

Appellant-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________________________

 

Submitted September 5, 2006 - Decided October 18, 2006

Before Judges Payne and Gilroy.

On appeal from a Final Decision of the

Department of Corrections.

Santo Islam, appellant, filed a pro se

brief.

Anne Milgram, Acting Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel, Christopher C. Josephson, Deputy Attorney General on the brief).

PER CURIAM

Petitioner Santo Islam appeals pro se from a final decision of the Department of Corrections imposing disciplinary sanctions pursuant to N.J.A.C. 10A:4-4.1 for committing prohibited act .502, interfering with the taking of count. The sanctions imposed consisted of detention, with credit for time served, thirty days loss of commutation time, ninety days of administrative segregation (of which period sixty days was suspended) and referral to the Classification Committee for a custody status review. On appeal, petitioner argues that because resolution of his case depended a determination of credibility, a polygraph test should have been administered pursuant to his request. He argues, additionally, that his First Amendment right to freedom of religion was violated by the complaining corrections officer, and that counsel should be appointed to subpoena prison official records that may support his claim of institutional bias against those practicing the faith of Islam. We affirm.

The record discloses that at 6:05 a.m. on October 12, 2005, during the month of Ramadan, Senior Corrections Officer Russell, while taking an institutional count, observed a number of inmates congregated near petitioner's bed area in the minimum custody portion of South Woods State Prison. Russell ordered the inmates to disperse and return to their beds. They did so. However, petitioner then allegedly left his bed and confronted Russell "in a loud and boisterous manner" telling Russell that he was not going to comply because he "does this all the time." When Russell's order to petitioner to return to his bed area was refused, Russell contacted Sergeant Romanishin for assistance, and petitioner was thereupon removed from the area. Petitioner was subsequently charged with committing prohibited acts .502, interfering with the taking of count; .256, refusing to obey an order of a staff member; and *.306, engaging in conduct which disrupts the security or orderly running of the correctional facility.

The charges were timely served upon petitioner, who pled not guilty. During investigation of the charge by an independent corrections officer, petitioner stated: "When the officer came in my area I was right by my bunk. I had just finished praying." He offered four inmate witnesses to support his statement, one of whom he later withdrew. However, none of the witnesses corroborated petitioner's recitation of the events, each professing a lack of knowledge as to what had occurred. Counsel substitute was requested and provided for the Courtline hearing.

A hearing was held in the matter on October 21, 2005 following two adjournments to permit investigation and obtain the witness statements requested by petitioner. According to the summary of evidence prepared by the hearing examiner, petitioner testified:

It's Ramadan & we just finished prayer. Everybody went back to their area & he [Russell] called us over and was asking what was going on. I tried to explain and he called the sergeant over and had me locked up.

Counsel substitute added: "Minimum camp isn't like inside & it's different. It's Ramadan, and he has a good record." The statements of petitioner's witnesses were received. Additionally, the hearing examiner considered the report of SCO Russell, as well as the statements of two responding officers, Sequinot and Romanishin. Petitioner declined to confront adverse witnesses.

At the conclusion of the hearing, the hearing officer found:

IM [inmate] pled not guilty but is found guilty. The Russell charge indicates the IM refused an order and was congregating with others. IM was ordered to return to his bed area for count, which he refused. This action interfered with the officer's ability to complete his institutional count. The A3 Sequinot report also indicates the IM was interfering with count. None of the inmate's witnesses offered anything helpful towards the inmate's defense.

As a consequence, the hearing examiner determined that petitioner had committed prohibited act .502. The remaining charges were dismissed as unproven or duplicative. The determination and sanctions were affirmed on appeal.

We reject petitioner's claim that the disciplinary sanctions should be reversed because his request for administration of a polygraph examination pursuant to N.J.A.C. 10A:3-7.1(a) was not granted. As the State has noted, there is nothing in the record that would indicate that such a request was indeed made. However, even if it were, an inmate's request for such an examination does not constitute sufficient cause for granting the application. N.J.A.C. 10A:3-7.1(c); Johnson v. Dept. of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997).

As we held in Ramirez v. Dept. of Corr., 382 N.J. Super. 18 (App. Div. 2005), a prison administrator's determination not to give a polygraph examination is discretionary in nature, and can be reversed only upon a finding that the determination was arbitrary, capricious or unreasonable. Id. at 24. We further held that the exercise of discretion

must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO'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. Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Ibid.]

In the present case, the report of complaining officer Russell was to an extent corroborated by the two corrections officers who responded to his call for assistance. Although they did not witness the conduct that led to the charges, they were present for its aftermath. Further, none of the potential witnesses identified by petitioner supported his view of the events, and at the Courtline hearing petitioner did not expose any inconsistencies in Russell's report. In these circumstances, we find that any denial of a request for a polygraph examination did not negate the fundamental fairness of the disciplinary proceeding, and no grounds have been presented that would require that the sanctions against petitioner be vacated and a polygraph ordered. Id. at 26.

We also reject petitioner's First Amendment argument, finding no interference with his practice of religion, since as he admits, morning prayers had been completed at the time that the conduct at issue occurred.

In conclusion, we find that the due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975) were afforded to petitioner in this case; that the decision of the Department of Corrections was not arbitrary, capricious or unreasonable, Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980), but instead was supported by substantial evidence in the record, Jacobs v. Stephens, 139 N.J. 212, 222 (1995); and the arguments raised by petitioner on appeal lack merit. We therefore affirm the decision of the Department of Corrections.

Affirmed.

 

Among the items investigated, at the request of the hearing examiner, were (1) how and where morning prayers are conducted by inmates in the minimum security unit during Ramadan and (2) the manner in which the count is conducted.

(continued)

(continued)

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A-1515-05T1

October 18, 2006