QAADIR A. MUHAMMAD v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4865-04T14865-04T1

QAADIR A. MUHAMMAD,

Petitioner-Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent-Respondent.

__________________________________

 

Submitted December 19, 2005 - Decided

Before Judges Cuff and Lintner.

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

Qaadir A. Muhammad, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Walter C. Kowalski, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Qaadir Muhammad, an inmate at Riverfront State Prison, appeals from a final decision of the Department of Corrections that found he committed the disciplinary infraction of fighting. N.J.A.C. 10A:4-4.1(a) *004. We remand for further proceedings.

At the time of the incident that forms the subject matter of this appeal, Muhammad was an inmate at Mid-State Correctional Facility. On March 23, 2005, at 11:35 a.m., SCO J. McMullin reported that he saw Muhammad grab and throw punches at inmate Shields. He called a code 33 and various inmates separated the two.

Statements were then taken from inmates Ulysses Owen and Kevin Fields. Owen stated, "I was woke up by the noise, it was only an argument, there was no punches thrown." Fields stated, "It wasn't no fight, they were just making a lot of noise." Muhammad pled not guilty and stated, "We had a disagreement over [by] a window, by the time the code was called we were separated." Muhammad claims in his brief that the officer left out the word "by" in his report. A hearing was originally scheduled for March 24, 2005, but postponed for one day for a better report from McMullin.

McMullin issued a second report, which stated, "[Shields] grabbed [Muhammad] and forced him against the wall by the TV. [Muhammad] then grabbed Shields and forced him (Shields) off. They then both started to exchange punches that appeared to be in the body area." Several other officers issued reports, however, all indicating that they came on the scene after the code. They did not witness the alleged fight.

Neither Muhammad nor his counsel substitute made a statement. Muhammad declined confrontation. The hearing officer denied Muhammad the confidential reports. He concluded:

Officer reports he observed the inmate push another inmate, the other inmate pushed him back, Officer believed they were fighting, please note witnesses do not explain in detail what they saw, all reports used to determine guilt.

The hearing officer recommended fifteen days of detention and ninety days administrative segregation. The findings and recommendations of the hearing officer were upheld on Administrative Appeal.

On appeal, Muhammad asserts he should have been provided with the various witness statements. He claims that he was misinformed by counsel substitute that because he was being transferred to another prison he would not be afforded confrontation and a cross-examination hearing. Prison inmates are permitted only limited procedural due process in disciplinary proceedings. Avant v. Clifford, 67 N.J. 496, 522 (1975). Nevertheless, "There must be some reasonable opportunity, however circumscribed, to reasonably defend reasonably articulated charges, and there must be substantial evidence to sustain them." Engel v. N.J. Dep't of Corr., 270 N.J. Super. 176, 179-80 (App. Div. 1994). We see no confidentiality reason for withholding from Muhammad what appear to be two favorable inmate statements. Certainly, one would not expect retaliation against fellow inmates who provide statements supporting an inmate's defense. Had these statements been provided, Muhammad may very well have requested confrontation, notwithstanding the advice to the contrary given by his counsel substitute.

 
Further, the record reveals that McMullin's observations were uncorroborated by the reports filed by other corrections officers, none of whom were present at the time the alleged fight occurred. Lacking corroboration, there remained an issue of credibility. Accordingly, we remand the matter for further proceedings to permit Muhammad to review the statements provided and request confrontation if desired. We do not address the merits of the case nor do we retain jurisdiction.

Remanded for further proceedings.

(continued)

(continued)

4

A-4865-04T1

January 19, 2006