RASOOL JENKINS 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NOT FOR PUBLICATION WITHOUT THE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-2450-05T12450-05T1

A-3220-05T1

RASOOL JENKINS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________________________

 

Submitted March 20, 2007 - Decided April 4, 2007

Before Judges Coburn and Gilroy.

On appeal from the New Jersey Department of

Corrections.

Rasool Jenkins, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant Attorney

General, of counsel; Christopher C. Josephson,

Deputy Attorney General, on the brief).

PER CURIAM

In these prison disciplinary cases, Rasool Jenkins, an inmate at Northern State Prison, filed one notice of appeal under Docket No. A-2450, on January 17, 2006, from three separate administrative decisions: the November 30, 2005, final decision finding him guilty of prohibited act *.203, possession or introduction of prohibited substances; the January 10, 2006, final decision finding him guilty of prohibited act *.002, assaulting any person; and the hearing officer's initial decision finding him guilty of prohibited act *.011, possession or exhibition of anything related to a security threat group. It appears that Jenkins also filed a notice of appeal under Docket No. A-3220, on February 22, 2006, from the same three administrative decisions. It is unclear from the record why there were two separate notices of appeal in this matter. Nonetheless, by order of June 6, 2006, we consolidated the appeals and "reserved" the respondent's motion to dismiss A-3220-05T1 "for consideration by the full panel."

As to *.011, which is not an appeal from a final administrative order, respondent concedes that it cannot locate the documents and requests a remand for administrative dismissal of the charges. There is no reason not to grant that request, and so *.011 is remanded for dismissal.

Although there is merit in respondent's argument that Jenkins was not entitled to file one notice of appeal for two entirely separate disciplinary cases, see R. 2:5-1(e) and 2:5-1(f)(2), we will consider the cases on their merits.

After carefully considering the record and briefs, we are satisfied that both appeals lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and that the final administrative decisions are supported by sufficient credible evidence on the records as a whole. R. 2:11-3(e)(1)(D). However, we add the following comments.

The evidence on the *.203 charge was that the officer, while conducting a cell search, saw Jenkins throw four marijuana cigarettes into his toilet. Consequently, the hearing officer was entitled to reject Jenkins's claim that the cigarettes came from a toilet in an adjoining cell. Jenkins was given the opportunity to cross-examine the officer and to call his own witnesses, but did neither. Jenkins's claims of denial of due process and that the respondent should have had the cigarettes tested by the State Lab are equally without merit. As to the latter argument, we note that State Lab testing is not required for the charge at issue although it is for prohibited act *.204, use of a prohibited substance. See N.J.A.C. 10A:3-5.11(d).

In addition, Jenkins argues that he was kept in pre-hearing detention for an excessive period while awaiting his adjudication hearing. However, as noted in the adjudication report, the hearing was postponed on three occasions between November 14 and November 21, 2005, because results of the field test on the aforementioned cigarettes were still pending. In any event, Jenkins does not have a legally-protected interest in remaining free from administrative segregation or restrictive confinement, such as pre-hearing detention. See Jenkins v. Fauver, 108 N.J. 239, 250 (1987). Administrative segregation may be used for punishment, protection, or simply as a holding mechanism, and is "the sort of confinement that inmates should reasonably anticipate receiving at some point in their incarceration." Ibid. See also Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997)(holding that an inmate placed in administrative segregation for fifteen months on suspicion of rape did not suffer an atypical or significant hardship). Thus, Jenkins's argument regarding the length of his placement in pre-hearing detention is without merit.

Jenkins further argues that his due process rights were violated because he was not present at hearings that were purportedly held on November 14, 16, and 18, 2005. However, as noted above, there were no hearings conducted on those dates because the results of the aforementioned field test were still pending.

The evidence on the *.002 charge, which involved an assault on a corrections officer, came from the officer, who said that after Jenkins acceded to an order to throw out a cigarette during the course of a mass movement of inmates, he stepped toward the officer and struck the officer with his elbow. The evidence supported the charge and Jenkins's due process arguments have no merit.

Jenkins argues that he was kept in pre-hearing detention for an excessive period of time while awaiting his adjudication hearing on this charge as well. However, as noted in the adjudication report, the postponements were reasonable and necessary in order to accommodate Jenkins's request for confrontation of four corrections officers. In any event, as noted above, Jenkins does not have a legally-protected interest in remaining free from administrative segregation.

Jenkins also claims that his due process rights were violated because he was not present at the final adjudication held on December 22, 2005, and because his request to postpone said hearing was denied. In fact, Jenkins apparently was at the hearing on December 22, 2005, because the adjudication report indicates that he requested a postponement on that date in order to analyze alleged contradictions in the corrections officers' responses to his confrontation questions. Furthermore, a hearing officer is not required to grant a postponement merely because it is requested, and Jenkins had already challenged the veracity of the corrections officers' statements on the record.

In addition, contrary to Jenkins's assertions, there were no contradictions in the corrections officers' responses to his confrontation questions. Specifically, Jenkins claims that the officer whom he was charged with assaulting asserted in response to a confrontation question that she had told several co-workers about the assault, and they indicated otherwise. In fact, the officer who had been assaulted stated that she never reported the assault to anyone other than a sergeant, who corroborated her account.

Jenkins also alleges that the hearing officer made several false statements in relation to his adjudication. Specifically, Jenkins claims that the hearing officer told him that he could not see the pre-hearing detention report because it was confidential, when in fact it was not confidential; that he asked to review a video of the education area and was told that no such video existed; that the hearing officer attributed certain statements to him which he claims he never made; and that he refused to sign the adjudication report because he was handcuffed. None of these claims have any merit. There is nothing in the record to support Jenkins's claim that he was prohibited from viewing the pre-hearing detention report, or that he requested to see a video of the education area and was told that no such video existed. Furthermore, his counsel substitute's signature on line 16 of the adjudication report verified that the statements that were attributed to Jenkins were accurate. Finally, the adjudication report does not indicate that he refused to sign it, rather, it states that he could not sign it because he was handcuffed, and it was therefore signed by his counsel substitute instead.

 
Jenkins makes several additional arguments regarding the validity of the *.002 charge, none of which have any merit. For example, he claims that the assaulted officer stated in her report that he pushed her, while she indicated that he elbowed her in response to a confrontation question. This argument is simply an exercise in semantics, and is undeserving of serious consideration. Jenkins also claims that the *.002 charge should be dismissed because there were no witnesses to the assault, the officer did not call a "code" after she had been assaulted, and she never sought medical attention. Even if these assertions are accurate, none of them refute that fact that Jenkins assaulted a corrections officer. Thus, Jenkins has not presented sufficient evidence to overcome the substantial, credible evidence of his guilt.

Affirmed.

(continued)

(continued)

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A-2450-05T1

April 4, 2007