JOSEPH MILLER 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NOT FOR PUBLICATION WITHOUT THE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-3219-05T13219-05T1

JOSEPH MILLER,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_____________________________

 

Submitted March 28, 2007 - Decided June 28, 2007

Before Judges A. A. Rodr guez and Collester.

On appeal from a Final Agency Decision of the

Department of Corrections.

Joseph Miller, appellant pro se.

Stuart Rabner, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant

Attorney General, of counsel; Sean M. Gorman,

Deputy Attorney General, on the brief).

PER CURIAM

Joseph Miller, an inmate currently incarcerated at South Woods State Prison in Bridgeton, appeals from a final agency decision of the Department of Corrections (DOC) imposing disciplinary sanctions for committing prohibited act *.202, possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

On December 30, 2005, Miller was incarcerated at Northern State Prison in Newark. On that day a random search was conducted of the cell he shared with his cellmate, Andre Dyer. Senior Correction Officer Dawn Grant discovered between two foot lockers an altered toothbrush with two razor blades melted into the plastic handle to form what is known in prison as a "shank." The following day the charge was personally delivered to Miller by Sergeant James Slaughter. Miller claimed he was not guilty of the charge and had no knowledge of the instrument found in the cell. Slaughter also interviewed Dyer, who stated that the weapon belonged to Miller. The matter was then referred to courtline. Miller requested and received the assistance of a counsel substitute.

The courtline hearing began on January 3, 2006, but was postponed for a psychological evaluation report. Subsequently, it was again postponed on Miller's request to submit written questions to cross-examine Correction Officer Grant and Sergeant Joseph Marino. Miller also requested and obtained written statements from three inmates as witnesses. One wrote that he knew nothing about the incident. The second stated that he knew Miller for over four years and did not believe that the weapon belonged to him. The third wrote that Miller had no problems with anyone in the prison unit so that he had no need for a shank. Miller's own statement at the hearing as reflected in notes from the hearing officer was as follows: "I've been down 18 years. Between the two lockers. It was my cellmate's property, not mine." Miller's counsel substitute stated: "Please show leniency and give no more time than cellmate if case is found guilty."

Hearing Officer Earlie-Colay adjudicated Miller guilty of disciplinary charge *.202, adding that, "Inmate shared cell with inmate Dyer, A., and both are responsible for items in their cell." The sanction imposed was fifteen days detention with credit for time served, 180 days administrative segregation, and 180 days loss of commutation time. Miller was also referred for a psychological evaluation. The hearing officer noted the following reasons: "Inmate's record of explanation noted. C-1 [confidential psychological evaluation] also noted. Sanction imposed to deter inmates from possession of illegal contraband, in addition [to] remind inmates they are responsible for items in their cell."

Miller filed an administrative appeal, and on January 28, 2006, the assistant superintendent upheld the decision stating: "There was compliance with the N.J.A.C. Title 10A on inmate discipline, which prescribes procedural safeguards. The decision of the hearing officer was based on substantial evidence." This appeal followed.

Miller argues the following points on appeal:

POINT I - THE CONDUCT OF PLAINTIFF'S DISCIPLINARY HEARING BY THE DEFENDANTS DENIED HIM THE DUE PROCESS OF LAW.

1. COMPLIANCE WITH STATE DISCIPLINARY PROCEDURES.

2. DENIED REQUEST FOR POLYGRAPH.

3. DENIED REQUEST FOR FINGERPRINTING.

4. USED "INSUFFICIENT EVIDENCE" TO CONVICT.

5. EARNED LIBERTY AND PROPERTY RIGHTS WERE SANCTIONED AND WITHHELD.

6. DENIED ACCESS TO COURTS VIA DENIED COPY SERVICE. [Citations to New Jersey Administrative Code omitted.]

7. IMPARTIAL TRIBUNAL DENIED.

POINT II - NSP ADMINISTRATOR, NJDOC CHIEF HEARING OFFICER, AND NJDOC COMMISSIONER ARE LIABLE FOR DUE PROCESS VIOLATIONS BY REASON OF THEIR FAILURE TO CORRECT AND INITIATE THEM ON ADMINISTRATIVE APPEAL, RE-INVESTIGATION AND RE-APPEAL.

POINT III - PLAINTIFF'S 1ST AMENDMENT RIGHT TO BE FREE FROM RETALIATION AND HARASSMENT WAS VIOLATED.

POINT IV - PLAINTIFF HAS A RIGHT TO PERSONAL PROPERTY PROTECTION BY HIS INSTITUTIONAL GUARDIANS AND ABSENT HIS PRESENCE HIS PROPERTY WAS SUBJECT TO THEFT, THEREFORE HE IS ENTITLED TO FULL COMPENSATION FOR HIS "MISSING" PERSONAL PROPERTY, AND ASSOCIATED LEGAL COSTS TO INDUCE THAT COMPENSATION. [Citations to New Jersey Administrative Code omitted.]

POINT V - DISCOVERY SOUGHT IS RELEVANT TO CLAIMS AND DEFENSES IN THE CASE.

Under our scope of review, we will not overturn a final administrative decision unless we determine that the agency action was arbitrary, capricious, unreasonable, or unsupported by credible evidence. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). Of course, an agency's factual determination, such as a finding of guilty of an infraction, must be supported by substantial credible evidence. McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995). Moreover, prisoners are entitled to certain procedural safeguards in prison disciplinary hearings. Avant v. Clifford, 67 N.J. 496, 522 (1975); McDonald, supra, 139 N.J. at 188; Jacobs, supra, 139 N.J. at 212. These limited rights are delineated in Avant as follows:

(1) Written notice of the charges within twenty-four hours prior to the hearing;

(2) An impartial tribunal, which may consist of personnel from the central office staff of the DOC;

(3) Limited right to call witnesses and present documentary evidence;

(4) Limited right to confront and cross-examine adverse witnesses;

(5) The right to a written statement of the evidence relied upon and reasons for sanctions imposed;

(6) Where the charges are complex or the defendant is illiterate or otherwise unable to prepare a defense, a counsel substitute should be permitted.

[Avant, supra, 67 N.J. at 525-29.]

These limited procedural rights are supplemented by the New Jersey Administrative Code requirements of notification and the inmate's right to make a statement in response to the charges. N.J.A.C. 10A:4-9.5(a); N.J.A.C. 10A:4-9.5(e); N.J.A.C. 10A:4-9.5(b).

We concur with the finding of the assistant superintendent that Miller received all of the procedural rights to which he was entitled. Miller's argument that his due process rights were violated by denial of his request for a polygraph is without merit. N.J.A.C. 10A:3-7.1(a) states that the prison administrator may request a polygraph when there are issues of credibility or as part of a re-investigation when new evidence or serious issues of credibility are subsequently disclosed. However, N.J.A.C. 10A:3-7.1 states a mere request by an inmate for a polygraph examination for a disciplinary charge is not required. Johnson v. Dep't of Corrections, 298 N.J. Super. 79, 83 (App. Div. 1997). In Ramirez v. Dep't of Corrections, 382 N.J. Super. 18, 23-24 (App. Div. 2005), we reaffirmed that an inmate's right to a polygraph is conditional and granted only when the denial of the examination would "compromise the fundamental fairness of disciplinary process." Id. at 20.

Impairment may be evidenced by inconsistencies in the [correction officers'] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf. Conversely, fundamental fairness will not be affected when there is sufficient corroborating evidence presented to negate any serious question of credibility.

[Id. at 24.]

We find no error or violation of Miller's rights in the denial of his request for a polygraph examination. Miller does not contest that the item found was a weapon or that it was found in his cell. At the hearing he contended that the shank belonged to his cellmate but offered no corroborative proof. On appeal he claimed that the shank was not his or his cellmate's but was planted by person or persons unknown. Once again Miller makes no showing to substantiate the claim. As noted by the hearing officer, the presence of the knife in a confined area accessible to Miller and his cellmate gave rise to a legitimate inference of constructive possession of the weapon by both.

Similarly, Miller's argument that his due process rights were violated by denial of his request to have the weapon tested for fingerprints is also without merit. An inmate may not direct the means and method of an investigation by prison authorities. We find no violation of his constitutional rights by refusal of the DOC for scientific testings. Cf. Flanagan v. Warden, United States Penitentiary, 784 F. Supp. 178, 181 (M.D. Pa. 1992).

 
After careful review of the record submitted to us we find that Miller's remaining contentions are totally without merit to warrant discussion in a written opinion. R. 2:ll-3(e)(1)(E). The decision of the DOC was supported by substantial credible evidence in the record as a whole. R. 2:11-3(e)(1)(D).

Affirmed.

The record is unclear as to the disposition of disciplinary charges against Dyer.

While there is merit to the State's position that Miller cannot raise issues not presented below except for matters of jurisdiction or of great public interest, Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), we have elected to consider Miller's new arguments.

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A-3219-05T1

June 28, 2007