4778 05T1KAREEMA THOMAS 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NOT FOR PUBLICATION WITHOUT THE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-4778-05T14778-05T1

4778 05T1KAREEMA THOMAS,

Appellant,

v.

NEW JERSEY DEPARTMENT OF CORRECTIONS,

Respondent.

___________________________________

 

Submitted September 10, 2007 Decided September 25, 2007

Before Judges Graves and Alvarez.

On appeal from the New Jersey Department of Corrections.

Kareema Thomas, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Thomas E. Kemble, Deputy Attorney General, on the brief).

PER CURIAM

In this appeal, Kareema Thomas, an inmate at the New Jersey State Prison (NJSP), contends that disciplinary sanctions imposed upon her were the result of an institutional hearing at which her procedural due process rights were violated. She also contends that the hearing was not conducted in accordance with Title 10A standards and that her right to equal protection of the law was violated as to the selection of the "counsel-substitute." See N.J.A.C. 10A:4-9.12. We affirm.

On February 24, 2006, Hearing Officer Sal Maniscalco found Thomas guilty of violating N.J.A.C. 10A:4-4.1(a), Prohibited Act *.306, which forbids "conduct which disrupts or interferes with the security or orderly running of the correctional facility." The hearing officer imposed fifteen days of detention, 365 days of administrative segregation, loss of 365 days of commutation time, as well as a thirty-day loss of recreational privileges. Thomas filed an appeal to the Commissioner of the Department of Corrections. On April 18, 2006, Associate Administrator William Hawk modified the hearing officer's decision only to the extent that Thomas's recreation privileges were reinstated.

The hearing officer gave Thomas the opportunity to confront her accusers face-to-face. She declined. As a result, the hearing officer relied on reports filed by corrections officers who were on duty that evening.

The incident occurred while Thomas was an inmate at the Edna Mahan Correctional Facility for Women (EMCF). Corrections Officer Carter's report states that on February 14, 2006, Carter was speaking to an inmate named McKay, when Thomas and a third inmate, Jacobs, began to yell and scream at McKay, thereby disrupting the unit. Thomas yelled that "somebody" had a razor. Sergeant Correctional Officer Farrell's report states that "this conduct was inciting the other inmates." Farrell ordered the entire North Hall unit to be locked down and everyone was ordered into their cells. Jacobs, Thomas, and a third inmate, Ruiz, refused to obey. All were initially charged with refusing to obey an order, a lesser infraction. Only Thomas was charged with "*.306 conduct which disrupts." See N.J.A.C. 10A:4-4.1(a).

As a result of her continued refusal, Thomas was physically restrained and escorted to the infirmary for observation. She was placed in a cell for purposes of "medical assessment," where she became so agitated that when ordered to sit down she jumped off of a bench and lunged towards Farrell and another corrections officer. She had to be "brought down" to the floor, restrained in leg irons, escorted to another cell, and secured. She then threatened to kill herself. Five officers moved her to yet another area, where she was stripped, dressed in a smock, and placed in a cell containing only a mattress.

Sergeant Schaffer investigated the matter and served written charges on Thomas the following day. She entered a not guilty plea and requested a counsel-substitute. She asked that two inmate witnesses be interviewed. Both witnesses told Schaffer they were in their cells when the incident occurred and did not see it.

Thomas was placed in pre-hearing detention and later transferred to an administrative segregation unit at NJSP. Thomas's pre-hearing transfer from EMCF to NJSP meant she was moved from a women's facility to one that is principally male.

The initial date was postponed in order to obtain a psychological evaluation. The evaluation stated Thomas was receiving mental health services and had been diagnosed as suffering from a "mental disorder characterized by frequent outbursts of anger which manifest in the form of threats of suicide and suicidal gestures." Thomas was found competent to understand the nature of the disciplinary hearing and to represent herself, but the report suggested that her mental health issues contributed to the incident.

At NJSP members of an inmate legal association known as Inmate Legal Association, Inc. (ILA) are permitted to act as counsel-substitute. They are not, however, permitted to represent women at the facility for security and administrative reasons. Women are represented by staff members from other departments. Although Thomas requested a counsel-substitute, and not a staff member, she did not specifically request representation by a paralegal from ILA.

During the hearing, Maniscalco relied upon the corrections officers' reports, as well as other documents including Thomas's mental health evaluation. In a form entitled "Adjudication of Disciplinary Charge," Maniscalco notes that Thomas said: "They did not call any code for me. They lied, I was in my cell." He also noted that Thomas's two proposed witnesses denied seeing the incident. He found Thomas guilty of the *.306 violation, finding substantial evidence to support the claim that Thomas's conduct disrupted the normal operations and the security of the facility.

The proofs meet the applicable "substantial evidence" standard. An "appellate court will reverse the decision of an administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Reasonable minds can agree that Thomas's conduct disrupted the normal operations as well as the security of the facility. We have no reason to disturb the hearing officer's conclusion that Thomas's statement, i.e., that she was in her cell during the incident, was not credible. His conclusion was no doubt bolstered by the denials of her purported witnesses.

Thomas's second claim is that the hearing was not conducted in accordance with prevailing Title 10A Standards governing the disciplinary process. She asserts that the staff member from the Department of Education who served as assigned counsel-substitute, was not qualified to provide competent representation. Thomas alleges that the staff member did not know how the process worked, did not know that witnesses could have been called and confronted, and failed to make a sufficient argument as to the weight to be accorded Thomas's mental health history and status as it impacts on disciplinary penalties. Nothing in the record corroborates these claims.

Thomas's final argument is that she should have been assigned an ILA paralegal as counsel-substitute who would have been more familiar with disciplinary hearing procedures and would have been a more effective advocate. Because only men are afforded ILA representation, and women are not, Thomas argues, her equal protection rights were violated. This argument also fails. Thomas does not substantiate the claim that an ILA paralegal is a more effective counsel-substitute than a staff member from the Department of Education. Thomas requested representation by a counsel-substitute, was assigned a staff member, and did not complain about the assignment until this appeal. Her right to equal protection of the law was not violated.

Affirmed.

 

(continued)

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A-4778-05T1

September 25, 2007