JAMIE PANDURE 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NOT FOR PUBLICATION WITHOUT THE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-3177-06T23177-06T2

JAMIE PANDURE,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________

 

Submitted November 28, 2007 - Decided

Before Judges Wefing and Lyons.

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

Appellant filed a pro se brief.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Jamie Pandure is an inmate currently incarcerated at New Jersey State Prison (NJSP) in Trenton. Pandure appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions on him for committing prohibited act .452, "using any equipment or machinery which is not specifically authorized," in violation of N.J.A.C. 10A:4-4.1(a). Because we find that Pandure was afforded all appropriate procedural guarantees and that there is substantial credible evidence in the record to support the DOC decision, we affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On December 6, 2006, Pandure was enrolled in a master of business administration degree program offered at NJSP. In connection with that program, inmates were permitted to use a computer. On December 6, 2006, the teacher observed that whenever she entered the classroom, Pandure would turn off his computer screen. The teacher, therefore, seized the computer disk being used by Pandure to inspect the contents. The contents revealed a book entitled "Sex Addict." Because the teacher discovered that Pandure was using the computer for a purpose unrelated to his business class, he was initially charged with committing prohibited act *.009, "misuse . . . [of] an electronic communication device, equipment or peripheral that is capable of transmitting, receiving or storing data and/or electronically transmitting a message, image or data that is not authorized for use or retention."

The charges were served upon Pandure on December 7, 2006. On December 11, 2006, the initial hearing was scheduled, but was postponed in order to allow the hearing officer to review the disk that had been seized from Pandure. On December 15, 2006, the hearing resumed with a different hearing officer. The hearing officer modified the *.009 charge to a .452 charge. The hearing officer also granted Pandure's request for the assistance of a counsel substitute.

The hearing officer reviewed the disciplinary report, as well as other related reports, including a report from the teacher. Pandure was afforded an opportunity to make a statement and to call and question witnesses. He requested that a former DOC employee, Jan Troy, testify. However, since she was no longer an employee, she was unable to provide testimony. Pandure did not testify, nor did he take the opportunity to confront or cross-examine any witnesses.

The hearing officer, relying primarily on the teacher's report, concluded that Pandure was using the State's computer for an unauthorized purpose. The hearing officer, therefore, recommended a sanction of time served in disciplinary detention, confiscation of the disks, referral to the classification committee for a job and/or assignment review, and referral to mental health services.

On December 26, 2006, Pandure filed an administrative appeal of the hearing officer's decision with the prison administrator. On December 29, 2006, the assistant superintendent upheld the finding and imposition of sanctions. This appeal ensued.

Pandure presents the following argument for consideration on appeal:

POINT I

THE FINAL DECISION OF THE DEPARTMENT OF CORRECTIONS FINDING THE APPELLANT GUILTY OF VIOLATING PRISON RULES SHOULD BE VACATED BECAUSE IT WAS ARBITRARY AND CAPRICIOUS, IT WAS NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE AND WAS CONTRARY TO THE LANGUAGE IN THE CODE.

We note at the outset that Pandure was afforded all of the recognized protections that an inmate facing disciplinary charges is entitled to receive. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Pandure received written notice of the alleged violation; a written statement of the evidence relied on; the reasons for the disciplinary action taken; a right to call witnesses; a right to present evidence; and a right to assistance from a counsel substitute. Id. at 195.

The essence of Pandure's argument is that the decision was contrary to the regulatory language set forth in N.J.A.C. 10A:4-4.1(a).452, the decision was not supported by substantial credible evidence, and the regulation did not provide sufficient notice to an inmate of what might constitute a violation.

We are satisfied that the regulation at issue is sufficiently clear and that its language applies to the incident in question. Prohibited act .452 prohibits "using any equipment or machinery which is not specifically authorized." This regulation clearly prohibits an inmate from using equipment, such as a computer, in a manner which is not specifically authorized. To authorize someone is "to give official approval to or permission for" an act. Webster's New World College Dictionary 95 (4th Ed. 2001). To specifically authorize someone is to precisely define the use which is permitted. Ibid. at 1376. Pandure was only afforded the use of a computer to pursue his master's program. There is nothing in the record to indicate that he was afforded the use of a computer for recreation or other personal use. Accordingly, his use of the computer, to either write or review his manuscript entitled "Sex Addict," was not specifically authorized and violated prohibited act .452.

Pandure's argument that prohibited act .452 does not adequately inform him of what conduct would constitute a violation is without merit. It is obvious that when an inmate is given a piece of equipment or machinery for a specifically stated purpose, for example, a computer to do one's master's program work, that the computer was not given to the inmate for any recreational purpose to be chosen by the inmate. Pandure's actions support that reasoning as well. Pandure turned the screen off every time the teacher came by. If he had thought he was authorized to use the computer for his own pursuits, there would have been no need to turn off the screen.

 
We are satisfied that Pandure was accorded his full procedural protections; that the regulation is sufficiently clear; and that the determination of the hearing officer as affirmed by the Deputy Superintendent was supported by sufficient credible evidence. Consequently, we find that the DOC's adjudication that Pandure committed prohibited act .452 was not arbitrary, capricious, or unreasonable. See McDonald v. Pinchak, supra, 139 N.J. 188; Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980).

Affirmed.

Pursuant to N.J.A.C. 10A:4-9.13(a)(7), former employees of DOC cannot be called as witnesses at inmate disciplinary hearings.

(continued)

(continued)

6

A-3177-06T2

December 17, 2007