DERRICK PARRISH v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2365-06T22365-06T2

DERRICK PARRISH,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________________________________________

 

Submitted September 18, 2007 - Decided

Before Judges Coburn and Chambers.

On appeal from the New Jersey Department of Corrections.

Derrick Parrish, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Sarah B. Campbell, Deputy Attorney General, on the brief).

PER CURIAM

Appellant, Derrick Parrish, a prison inmate, appeals from a final administrative determination that he attacked a corrections officer. We affirm the administrative finding that appellant violated N.J.A.C. 10A:4-4.1(a) *.306 and the administrative sanctions imposed for that violation. We make no ruling on the N.J.A.C. 10A:4-4.1(a) *.002 charge since appellant must first pursue his administrative remedies before appealing any administrative determination on that charge to this court.

On September 21, 2006, a physical conflict arose between certain corrections officers and inmates at the Northern State Prison. Appellant was charged with assaulting corrections officer Alexander DeJesus, in violation of N.J.A.C. 10A:4-4.1(a) *.002 (hereinafter the "*.002 charge"), and with "conduct which disrupts or interferes with the security or orderly running of the correctional facility," in violation of N.J.A.C. 10A:4-4.1(a) *.306 (hereinafter the "*.306 charge"). Appellant pled not guilty to these charges.

Appellant's version of what occurred and the corrections officers' reports differ significantly. Appellant explains that he was in line waiting to be checked into work when a tussle broke out between another inmate and an officer. The other inmates were ordered to back up. Appellant claims that as he was doing so, he was attacked by Officer DeJesus and other officers. He maintains that the responding officers had been inside the building and were unaware of what was happening in the line, and, hence, appellant was wrongfully assaulted. Appellant contends that even after he was handcuffed, he was physically assaulted by the officers. Appellant maintains that he was injured in the attack and received medical care for numerous lacerations, swelling in the head, a mild concussion, damage to one ear that required stitching, and one eye that had swelled shut. The reports of the corrections officers reflect a different scenario. They report that when another inmate struck one corrections officer, appellant attempted to strike Sergeant Bussey. Appellant was intercepted by Officer DeJesus, whom appellant struck in the face with a closed fist and continued to punch in the midsection until restrained.

The adjudicatory hearing was held on October 4, 2006, before Hearing Officer John Oszvart, who is a member of the Department of Corrections Central Office. The record indicates that at the hearing, appellant had the assistance of a counsel substitute, as permitted by N.J.A.C. 10A:4-9.12(a) when an inmate is charged with an asterisk offense. No statement or evidence was presented by appellant, nor did he exercise his right to confront or cross-examine any witnesses. The statements of three corrections officers were considered by the hearing officer, and confirmed that appellant had struck the officer. The hearing officer found that appellant had assaulted a corrections officer, thereby engaging in conduct in violation of the *.306 charge. He was sanctioned 15 days detention and 300 days of administrative segregation for this violation.

On October 5, 2006, appellant filed an appeal of the disciplinary hearing officer's decision on the *.306 charge, contesting the reliability of the evidence presented at the hearing and asserting that he was the victim of assaults by the corrections officers. On October 10, 2006, the decision of the hearing officer was upheld on the basis that the decision was supported by substantial evidence and that the sanction was in proportion to the offense. This appeal followed.

In this appeal, appellant makes the following three arguments: (1) that the corrections officers criminally assaulted appellant and that they fabricated the charges against him in order to avoid penalties for their own conduct; (2) that appellant was excluded from the hearing in violation of his due process rights and that no reasons were given as to why appellant was found guilty; and (3) that, when he was transferred to East Jersey State prison, he was given 600 days administrative segregation when he should have been assessed only 300 days for the incident.

While prisoners do not enjoy the full spectrum of due process rights, a prison inmate charged with a disciplinary action is entitled to certain limited due process rights. Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 2974, 41 L. Ed. 2d 935, 950-51 (1974); Avant v. Clifford, 67 N.J. 496, 518-19 (1975). Inmates have the right to reasonable written notice and a hearing before an impartial tribunal where the sanction imposed constitutes a "grievous loss." Avant v. Clifford, supra, 67 N.J. at 519, 525. At a disciplinary hearing, prisoners have a right to call witnesses and present documentary evidence in their defense. Id. at 530 n.27. In such proceedings, prisoners have a right to confront and cross- examine the witnesses against them. McDonald v. Pinchak, 139 N.J. 188, 198 (1995).

The administrative regulations in New Jersey governing prison inmate disciplinary proceedings incorporate these requirements, expressly allowing for written notice to the inmate of the charges, N.J.A.C. 10A:4-9.2; a hearing, N.J.A.C. 10A:4-9.8; the right of the inmate to be present at the hearing, N.J.A.C. 10A:4-9.10; an opportunity for the inmate to call witnesses and present evidence, N.J.A.C. 10A:4-9.13; an opportunity to confront and cross-examine witnesses, N.J.A.C. 10A:4-9.14; and a written disciplinary decision, N.J.A.C. 10A:4-9.24. The New Jersey Supreme Court has required that the Department of Corrections modify its forms to help document compliance with these requirements. McDonald v. Pinchak, supra, 139 N.J. at 199.

Appellant contends that the hearing took place outside of his presence and that he was denied the opportunity to present witnesses; hence, his due process rights and rights under the administrative regulations were violated. The report of the disciplinary hearing held on October 4, 2006, indicates that appellant did not want to make a statement, that appellant was afforded an opportunity to call witnesses and declined to do so, and that he declined in person confrontation. Appellant's counsel substitute signed the form stating that this information in the report is accurate. Notably, nowhere in the appeal papers filed and signed by appellant on October 5, 2006, the day after the hearing, does appellant complain that he was not present at the hearing. Since this issue was not raised below and all of the evidence is to the contrary, this argument is rejected.

Appellant also disputes the factual findings made at the disciplinary hearing and denies that he was the aggressor. He maintains that he was the victim of assaults by the correction officers. The regulations governing the Department of Corrections require that the hearing officer's findings in a disciplinary hearing involving an inmate be supported by "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a). Further, this court, when reviewing the findings of an administrative agency, must determine "whether there is sufficient or substantial credible evidence in the record to support the agency's determination." In re Suspension of Heller, 73 N.J. 292, 309 (1977). Here the record contains reports from the corrections officers stating that appellant assaulted an officer. Appellant offered no evidence or testimony to refute these charges at the hearing. As a result, the finding that appellant assaulted an officer was based on substantial credible evidence, and the finding on the *.306 charge that he engaged in "conduct which disrupts or interferes with the security or orderly running of the correctional facility," in violation of N.J.A.C. 10A:4-4.1(a) *.306, was supported by the record.

Finally, appellant maintains that there has been an error in the sanctions imposed in the department's record keeping. Appellant acknowledges that he was assessed 300 days of administrative segregation on the *.306 charge. However, he contends that, although the *.002 charge was vacated, he has mistakenly been assessed another 300 days of administrative segregation for that charge. Respondent does not substantively address this argument in its papers, but merely states that the *.002 charge for assaulting an officer was not administratively appealed, and, thus, this appeal deals only with the *.306 charge for disrupting the facility.

We note that at the time appellant took his administrative appeal, he contends he was unaware that he had been assessed a sanction for the *.002 charge. He thought that charge had been vacated. As a result, he had no reason to take an appeal of the *.002. Appellant maintains that he only learned of the sanctions imposed on the *.002 charge after the appeal was decided. It is unlikely that if appellant knew he had been convicted of both charges, he would have appealed only one of them, since the arguments he asserted in opposition to the *.306 charge on appeal would have been equally applicable to the *.002 charge.

The record before us does not include sufficient information to determine what happened to the *.002 charge. Appellant has no documentation stating that the *.002 charge was vacated as he asserts. The State has not presented documentation on the adjudication or disposition of that charge. At this juncture, an appeal to this court on the *.002 charge is premature. This court reviews final decisions of administrative agencies. R. 2:2-3(a)(2). A party seeking relief from an administrative decision must exhaust all administrative remedies before taking an appeal to this court. Hovnanian v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 8 (App. Div.), certif. denied, 185 N.J. 390 (2005). Accordingly, appellant must first exhaust his administrative remedies on the *.002 charge by taking an administrative appeal and then, if necessary, appealing to this court.

Affirmed on N.J.A.C. 10A:4-4.1(a) *.306 charge only. Remand for administrative appeal on the N.J.A.C. 10A:4-4.1(a) *.002 charge.

 

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9

A-2365-06T2

October 2, 2007