RICHARD BAILEY 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NOT FOR PUBLICATION WITHOUT THE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-2149-05T12149-05T1

RICHARD BAILEY,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent-Respondent.

________________________________________________________________

 

Submitted July 18, 2006 - Decided August 7, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from a Final Agency Decision

of the Department of Corrections.

Richard Bailey, appellant pro se.

Zulima V. Farber, Attorney General of New

Jersey, attorney for respondent (Patrick

DeAlmeida, Assistant Attorney General, of

counsel; Christopher C. Josephson, Deputy

Attorney General, on the brief).

PER CURIAM

Petitioner Richard Bailey appeals from a final disciplinary decision rendered by the Department of Corrections (DOC) on December 5, 2005. We affirm.

Petitioner is an inmate currently serving a thirty-year sentence in South Woods State Prison. On November 27, 2005, Senior Corrections Officer (SCO) W. Bonds observed petitioner and another inmate, Wesley Pierre, on the floor "wrestling and exchanging punches." Bonds called a Code 33 to alert other officers of the fight and to secure the inmates. Both inmates were charged with fighting in violation of *.004 and placed in pre-hearing detention.

The charge was delivered to petitioner on November 29, 2005, and he was advised of his "use immunity" rights.
Petitioner pled not guilty to the charge. Counsel substitute was provided and a hearing was conducted on November 30, 2005. At the hearing, petitioner stated, "We wasn't fighting - his [wheel] chair turned over by accident - we were playing around. I grabbed his shirt to help him."

The hearing officer modified the *.004 charge to a lesser non-asterisk charge, .709, failure to comply with a written rule or regulation. The hearing officer then adjudicated petitioner guilty of the lesser charge, stating that the "inmate admits during testimony[,] 'we were playing around[,]'" which violates inmate "Code of Conduct" p. 66 #25. Petitioner was sanctioned ten days in detention with credit for time served, ninety days of administrative segregation suspended for sixty days, and fifteen days loss of recreation privileges.

In this appeal, petitioner argues:

POINT ONE

SOUTH WOODS STATE PRISON'S DISCIPLINARY HEARING OFFICER IMPOSED A SANCTION AGAINST APPELLANT THAT CONSTITUTE AN ARBITRARY AND CAPRICIOUS DECISION, BECAUSE IT IS LACKING IN FOUNDATION AND EVIDENTIARY VALIDITY. THUS, IT SHOULD BE VACATED. (RAISED BELOW)

POINT TWO

APPELLANT'S INSTITUTION FILE REFLECT THAT HE WAS FOUND GUILTY OF N.J.A.C. 10A:4-4.1 *.004, WHEN IN FACT, HE WAS ONLY FOUND GUILTY OF .709, IS ARBITRARY, CAPRICIOUS AND UNREASONABLE, SINCE THE ERROR STIFLED HIS ABILITY TO GET A PRISON TRANSFER AND MINIMUM CUSTODY STATUS. THEREBY, VIOLATED HIS RIGHT UNDER THIS STATE'S FAIRNESS & RIGHTNESS DOCTRINE. N.J. CONST. ART. I, 1. (RAISED BELOW)

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We may not engage in an independent assessment of the evidence, In re Taylor, supra, 158 N.J. at 656. We will accord a strong presumption of reasonableness to the decision of an administrative agency. Smith v. Ricci, 89 N.J. 514, 525 (1982). We give great deference to administrative decisions, State v. Johnson, 42 N.J. 146, 159 (1964), but we do not act simply as a rubber stamp of the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

Applying these principles to the record before us, we are satisfied that the DOC's decision was neither arbitrary, capricious nor unreasonable. The decision is supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(D).

Petitioner argues in Point Two that his institution file reflects that he was found guilty of *.004, rather than the lesser .709 charge, and that the error affects his custody status. In the Inmate Progress Report appended to his brief, however, the entry for this offense appears to reflect the .709 adjudication. If there are any DOC records that incorrectly indicate an adjudication on the *.004 charge, they shall be corrected.

Affirmed.

 

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A-2149-05T1

August 7, 2006