ROGER BARBER 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NOT FOR PUBLICATION WITHOUT THE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-5697-05T25697-05T2

ROGER BARBER,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent-Respondent.

_______________________________

 

Submitted January 31, 2007 - Decided February 26, 2007

Before Judges Cuff and Fuentes.

On appeal from a Final Agency Decision

of the Department of Corrections.

Roger Barber, appellant pro se.

Stuart Rabner, Attorney General, attorney

for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Susan M. Scott,

Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Roger Barber is an inmate serving a thirty-seven-year sentence for manslaughter and a number of other violent offenses, including aggravated assault. He is currently incarcerated at Northern State Prison. Petitioner appeals the administrative determination of the Department of Corrections (DOC), adjudicating him guilty of committing disciplinary infraction *.708, refusing to submit to a search, in violation of N.J.A.C. 10A:4-4.1. The DOC imposed sanctions of fifteen days detention, 180 days administrative segregation, and 180 days loss of commutation credit.

Petitioner now appeals, arguing that prison officials failed to present sufficient evidence that he refused to submit to the search, and that the hearing officer's decision adjudicating him in violation of disciplinary rules was arbitrary and capricious. After reviewing the record, and in light of prevailing standards of review, we reject petitioner's arguments and affirm.

The evidence presented to the hearing officer shows that, on the date in question, a Senior Corrections Officer saw petitioner, as he walked into the prison yard, put "something in his mouth." Two other officers confronted petitioner and ordered him to open his mouth. Petitioner did not comply immediately. The officers then saw petitioner's throat move, "as if he was swallowing." Petitioner then opened his mouth, in a belated attempt to comply with the previous order.

Petitioner was frisked and placed in a cell for observation. Based on this conduct, petitioner was charged with disciplinary infraction *.708. When the matter came before the hearing officer, petitioner refuted the officers' account of what had occurred, stating that he complied immediately with the officers' command to open his mouth. Petitioner also presented the statements of three other inmates, all of whom described what they saw. None of the these statements were able to definitively dispute the officers' account of events.

In announcing his findings, the hearing officer emphasized that the three inmate witnesses "may not have had the same view as the custody staff involved." By contrast, the hearing officer found that "the custody staff involved . . . are clear that Barber did not immediately comply and they have no apparent reason to provide a false report."

The scope of our review of a final decision of an administrative agency is limited. "'[A]n appellate court will reverse the decision of the 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.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-580 (1980)). "Unless a Court finds that the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

We are satisfied that the hearing officer's decision was supported by competent evidence, and is therefore not arbitrary or capricious.

Affirmed.

 

(continued)

(continued)

4

A-5697-05T2

February 26, 2007