JAMES DAVIS v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2326-06T32326-06T3

JAMES DAVIS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

________________________________

 

Submitted December 11, 2007 - Decided

Before Judges Skillman and Yannotti.

On appeal from Department of Corrections.

James Davis, appellant, pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, James Davis, who was an inmate at Bayside State Prison, appeals from an adjudication of guilt of disciplinary infraction *.005, threatening another with bodily harm or with any offense against his or her person or his or her property, in violation of N.J.A.C. 10A:4-4.1(a).

The incident upon which the adjucation of this disciplinary infraction was based occurred on October 23, 2006, while Senior Corrections Officer Faircloth, a female officer, was taking the count of inmates in the housing unit where appellant's cell is located. According to Officer Faircloth, when she looked into appellant's cell, he was holding his penis in his hand and stated to Officer Faircloth: "I want to fuck you, fuck you real good." Feeling threatened by this comment, Officer Faircloth temporarily stopped taking the count of inmates and reported the incident to her superior officer, Sergeant Clement, who removed appellant from the unit. As Sergeant Clement was escorting appellant from his cell, another officer, Senior Corrections Officer Egbert, saw appellant licking his lips while looking at Officer Faircloth.

Based on this incident, appellant was charged with various disciplinary infractions, including the *.005 threatening charge that is the subject of this appeal. Appellant denied the charges and requested a polygraph examination. This request was denied. However, appellant was granted the opportunity for a confrontation hearing with Officer Faircloth.

The hearing officer who heard the evidence found appellant guilty of the threatening charge and imposed a sanction of 15 days detention, 300 days loss of commutation credit and 300 days administrative segregation. Appellant filed an administrative appeal of this disciplinary adjudication, which was affirmed by an assistant superintendent of the prison.

On his appeal to this court, appellant presents the following arguments:

I. THE HEARING OFFICER USED ARBITRARY AND CAPRICIOUS METHODS IN FINDING APPELLANT GUILTY AT THIS DISCIPLINARY HEARING AND WITHOUT APPLYING THE SUBSTANTIAL EVIDENCE REQUIREMENTS, PURSUANT TO N.J.A.C. 10A:4-9.15(a), BUT NOT LIMITED TO.

II. THE REPORTING OFFICER CLEARLY LIED BETWEEN HER THREE REPORTS, AND WHAT SHE STATED DURING CONFRONTATION.

III. ADMINISTRATOR T.M. SULLIVAN ARBITRARILY AND CAPRICIOUSLY DENIED APPELLANT HIS RIGHT TO A POLYGRAPH TEST, WHEN CREDIBILITY ISSUES HAVE BEEN RAISED, AND WERE CLEARLY PROMULGATED BEFORE, DURING, AND AFTER HIS DISCIPLINARY PROCEEDINGS.

Appellant's arguments are clearly without merit and do not warrant extended discussion. R. 2:11-3(e)(1)(E). We note that Officer Faircloth's report and her answers to appellant's questions at the confrontation hearing and Senior Correction Officer Egbert's report provided the required "substantial evidence" to substantiate the charge against appellant. See Jacob v. Stephens, 139 N.J. 212, 222 (1995). In addition, we are satisfied that a reasonable corrections officer in Officer Faircloth's position could have felt threatened by appellant's comment. See id. at 222-24. We also note that the availability of a polygraph is not "an affirmative right granted to the inmate himself." Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 23 (App. Div. 2005). A prison administrator has broad discretion in determining whether to grant an inmate's request for a polygraph, which will not be disturbed unless the denial "impair[ed] the fundamental fairness of the disciplinary proceeding." Id. at 24. We conclude that Administrator Sullivan did not abuse this broad discretion in denying appellant's request for a polygraph, especially in view of the fact that appellant was afforded an opportunity to confront Officer Faircloth with written questions.

Affirmed.

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A-2326-06T3

December 26, 2007