KYIIS JUSTICE v. DEPARTMENT OF CORRECTIONS

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1396-06T31396-06T3

KYIIS JUSTICE,

Appellant,

vs.

DEPARTMENT OF CORRECTIONS,

Respondent.

___________________________________

 

Submitted November 28, 2007 - Decided

Before Judges Axelrad and Sapp-Peterson.

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

Kyiis Justice, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Kyiis Justice is an inmate currently confined at South Woods State Prison in Bridgeton. He appeals a final determination of the Department of Corrections (DOC) finding him guilty of setting a fire in his cell and engaging in disruptive conduct or conduct that interfered with the security or orderly running of the correctional facility. We affirm.

The facts may be briefly stated. On September 18, 2006, at about 9:05 p.m., Justice's hot pot boiled and started to emit smoke as it began melting. Justice was not in the room at the time as he had gone to the day room. He initially denied leaving the hot pot engaged. However, he subsequently indicated that his cellmate had been using the hot pot and had neglected to unplug it. Justice further stated that when he returned to the cell and observed the hot pot melting, he reported the incident to a correction officer, but the officer's delayed response caused the cell to fill with smoke. Justice's cellmate denied leaving the hot pot plugged in. The next day, both Justice and his cellmate were served with disciplinary charges, and an investigation commenced. Justice was charged with two asterisk offenses: *.151, starting a fire, and *.306, engaging in conduct that disrupts or interferes with the security or orderly running of the prison institution. Justice pleaded not guilty to both charges and provided a statement in connection with both allegations. As to the charge that he started a fire, Justice stated, "It wasn't no fire. The hot pot melted, I left it plugged in, I was in the dayroom and forgot it was plugged in. Medina had nothing to do with it." In connection with the disruption or interference allegation, Justice stated, "Miss Dooley wouldn't open the door. I told her the hot pot was burning up but it took her over 15 minutes to open the door."

On September 20, 2006, a hearing officer conducted a courtline adjudication of the charges. The hearing officer adjudicated Justice guilty of the charges and imposed a fifteen-day detention, a sixty-day loss of commutation credit, and a ninety-day administrative segregation on the disciplinary infraction *.151. The sanction imposed on the disciplinary infraction *.306 was combined with the sanction imposed on *.151.

Justice timely appealed the hearing officer's decision to the Administrator of South Woods Prison, but resolution of his appeal was delayed because DOC could not locate his administrative appeal. His appeal was ultimately considered by the South Woods Associate Administrator, who upheld the guilty adjudications but modified Justice's sanction by suspending the ninety-day administrative segregation, conditioned upon Justice remaining free of any new charges for sixty days.

The ensuing appeal followed. On January 16, 2007, DOC filed a motion for a remand to permit Justice an opportunity to resubmit his administrative appeal because DOC had not yet located his original administrative appeal. By order dated February 20, 2007, we granted the motion. Upon remand, however, Justice declined to resubmit his administrative appeal.

Justice raised the following points for our consideration on appeal.

POINT I

A FINDING OF GUILT AT A DISCIPLINARY HEARING SHALL BE BASED UPON SUBSTANTIAL EVIDENCE THAT THE INMATE HAS COMMITTED A PROHIBITED ACT.

POINT II

AN INMATE SHALL BE PERMITTED TO BE PRESENT THROUGHOUT THE DISCIPLINARY HEARING. THE REASONS FOR EXCLUDING AN INMATE FROM THE DISCIPLINARY HEARING MUST BE WELL DOCUMENTED IN THE RECORD.

POINT III

THE OPPORTUNITY FOR CONFRONTATION AND CROSS[-]EXAMINATION OF THE ACCUSER(s) AND[/]OR STATE[']S WITNESS(es) IF REQUESTED SHALL BE PROVIDED TO THE INMATE.

POINT IV

IN ALL CASES THE INMATE SHALL BE NOTIFIED IN WRITING OF THE RESULTS OF THE REVIEW OF THE INMATE[']S APPEAL AND THE REASON THEREOF. IF AN INMATE IS BEING HELD IN DISCIPLINARY ACTION, THE WRITTEN DECISION ON THE APPEAL SHALL BE GIVEN TO THE INMATE WITHIN 72 HOURS OF RECEIPT OF THE APPEAL, EXCLUDING WEEKENDS AND HOLIDAYS.

POINT V

SEE [MCDONALD] v. PINCHAK, 139 N.J. 188, 199 (1995) ("REVIEWING BODIES MUST BE ABLE TO EXAMINE A RECORD OF DISCIPLINARY PROCEEDINGS.")

After carefully reviewing the record, we are satisfied that Justice's arguments are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(D) and (E). The final administrative decision issued by the DOC is supported by substantial, credible evidence in the record. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We add only the following.

N.J.A.C. 10A:4-9.15(a) requires that "[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) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry, supra, 81 N.J. at 579-80. "Due process of law is not a fixed star in the constitutional firmament. It radiates variably in application, 'call[ing] for such procedural protections as the particular situation demands.'" Wakefield v. Pinchak, 289 N.J. Super. 566, 570 (App. Div. 1996) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). In the penal setting, due process "rights may be diminished by the needs and exigencies of the institutional environment," but they may not be extinguished because "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 950 (1974).

Our Supreme Court in Avant, supra, 67 N.J. 496, held that although inmates in disciplinary proceedings are not entitled to the full panoply of rights afforded an accused in a criminal proceeding, they are entitled to certain limited protections prior to being subjected to disciplinary sanctions, including notice of the charges, an impartial hearing officer, a limited right to call witnesses, present documentary evidence, and to confront and cross-examine adverse witnesses. Id. at 522-30.

Here, because Justice was charged with an asterisk offense, N.J.A.C. 10A:4-4.1, he was afforded counsel substitute. He was also given an opportunity to present his case before a neutral hearing officer. Additionally, he was given the opportunity to confront witnesses but declined to do so. Had he done so, however, it is unlikely that their testimony would have altered the outcome, given his admission of responsibility. Finally, there is nothing in the record to suggest that the hearing officer relied upon any evidence provided by Justice's roommate in adjudicating Justice's guilt.

Affirmed.

 

DOC inmate disciplinary regulations classify "[a]sterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1. See also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).

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A-1396-06T3

 

December 20, 2007