ERIC WIGGINS v. DEPARTMENT OF CORRECTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6101-05T36101-05T3

ERIC WIGGINS,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Respondent.

_________________________________

 

Submitted June 20, 2007 - Decided July 5, 2007

Before Judges Wefing and Weissbard.

On appeal from a Final Decision of the

Department of Corrections.

Appellant filed a pro se brief.

Stuart Rabner, Attorney General, attorney

for respondent (Lewis D. Scheindlin, Assistant

Attorney General, of counsel; Lisa A.

Puglisi, Deputy Attorney General, on the brief).

PER CURIAM

Eric Wiggins, an inmate in the custody of the Commissioner of the Department of Corrections, appeals from a disciplinary adjudication. After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the time of the incident in question, Wiggins was an inmate at East Jersey State Prison. He was charged with violating N.J.A.C. 10A:4-4.1, refusing to accept a housing assignment. On April 18, 2006, Sergeant Aronow came to Wiggins and told him his cell assignment was being changed. According to Aronow, Wiggins replied that he was not moving anywhere. Aronow repeated the order, and Wiggins repeated his reply. The instant disciplinary charge was then filed against Wiggins.

Wiggins requested the assistance of counsel substitute, and one was provided, even though the offense charged was not an asterisk offense. N.J.A.C. 10A:4-9.12. At the hearing, counsel substitute explained that Wiggins had not refused the order to go to a new cell but merely questioned why the order was being given. According to Wiggins, he had been assigned to his then-cell to assist in caring for his cell-mate, inmate Martin, who was subject to seizures. Wiggins said this had been arranged by Nurse Cross.

Investigation revealed that no nurse named Cross worked at this facility. And, one of the nurses who did work there stated that no inmate would be assigned to a cell to assist in the medical care of another inmate.

Following the hearing, the hearing officer found Wiggins guilty and imposed sanctions of fifteen days in detention, sixty days loss of commutation credit, ninety days in administrative segregation and thirty days loss of recreation privileges.

We note the standard governing our review of this matter. Only where the final decision of an agency such as the Department of Corrections is capricious or unsupported by the record may we reverse. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). Unless a reviewing court finds that the agency's action was arbitrary, capricious or unreasonable, it should be affirmed. In re Taylor, 158 N.J. 644, 657 (1999).

Applying that standard to the record before us, we are compelled to affirm. Wiggins's assertions that he was not afforded enough time to consult with counsel substitute and that a video would support his version of the incident find no support in the record before us.

We disagree with Wiggins as to the import of N.J.A.C. 10A:4-3.1(a)(2). It does not provide that he was entitled to an explanation as to the reason he was being moved to a different cell. It merely provides that any inmate is entitled to be informed of the rules and procedures in place. Having received the order to move to another cell, it was his obligation to comply, not to question the reason for the order.

 
Affirmed.

(continued)

(continued)

3

A-6101-05T3

July 5, 2007