SAMAAD GARDNER 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NOT FOR PUBLICATION WITHOUT THE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-0699-08T30699-08T3

SAMAAD GARDNER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_____________________________

 

Submitted: October 21, 2009 - Decided:

Before Judges Axelrad and Sapp-Peterson.

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

Samaad Gardner, appellant, pro se.

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John P. Cardwell, Deputy Attorney General, on the brief).

PER CURIAM

Samaad Gardner appeals from a final determination of the Department of Corrections (DOC), adjudicating him guilty of disciplinary infractions *.002, assaulting another person, *.306, conduct which disrupts or interferes with the security or orderly running of the correctional facility, and *.708, refusal to submit to a search, as delineated in N.J.A.C. 10A:4-4.1. The hearing officer imposed 15 days detention, 365 days administrative segregation, 365 days loss of commutation credit and 30 days loss of recreation privileges. Following an administrative appeal, the associate administrator upheld the decision of the hearing officer. Appellant then filed an appeal of the agency's decision.

On appeal, appellant argues his due process rights were violated because he: (1) did not receive a polygraph examination; (2) was not afforded sufficient confrontation because he was not permitted to confront all officers and was not permitted to ask the two that he confronted all of the questions he wanted; (3) was not allowed to call witnesses; and (4) was not personally handed the hearing officer's decision at the hearing but, rather, was given it afterwards. He also asserts the hearing officer merely catalogued the evidence without an explanation of specific findings and did not expressly state what evidence he relied on to credit the testimony of the officers, and there was not substantial credible evidence in the record to substantiate the finding of guilt. Appellant also challenges the sanctions as excessive. We reject appellant's arguments and affirm.

The hearing officer concluded that during a routine cell search, appellant became combative and struck Senior Corrections Officer (SCO) Parker on the side of the head and then bit him on the left hand, necessitating medical treatment, when the officer and Officer Saboski attempted to restrain appellant. The officers then called a "Code 100" and other officers arrived to assist in subduing appellant, including Sergeant Makos. Appellant's actions led to the unit being locked down and the cell search not being completed. The hearing officer relied on the reports of a multitude of officers who were eyewitnesses to appellant's conduct, as well as appellant's counsel substitute's cross-examination of SCO Parker and Sgt. Makos by way of confrontation questions. The hearing officer expressly found the testimony of SCO Parker and Sgt. Makos to be credible and implicitly discredited appellant's version that he did not interfere with the search and the officers assaulted him.

We reject appellant's argument that he was denied due process because he did not receive the polygraph examination he requested. An inmate's mere request for a polygraph examination shall not be sufficient cause, in and of itself, for granting the request. Johnson v. New Jersey Dep't. of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). In addition, a polygraph is clearly not required on every occasion that an inmate denies the disciplinary charge against him, but rather the request should be granted "when there is a serious question of credibility and the denial would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't. of Corr., 382 N.J. Super. 18, 20, 23-24 (App. Div. 2005). Impairment of fundamental fairness may be evidenced by inconsistencies in the officers' statements or a statement by another inmate on the inmate's behalf but "will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility." Id. at 24.

In appellant's case, the record does not show any issues of credibility that could not have been determined at a disciplinary hearing. Appellant requested and received confrontation of SCO Parker and Sgt. Makos. He chose not to avail himself of the opportunity to present any witnesses on his behalf. Thus, the absence of a polygraph did not compromise the fundamental fairness of the disciplinary process.

Moreover, in a disciplinary proceeding while imprisoned, an inmate is not entitled to the full panoply of rights as is a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). An inmate is entitled to written notice of the charges at least twenty-four hours prior to the hearing; an impartial tribunal; a limited right to call witnesses and present documentary evidence; a limited right to confront and cross-examine adverse witnesses; a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and, where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Id. at 525-33.

Here all of the procedural requirements were met. Nothing in the document shows that appellant requested to confront other officers and there was no abuse of discretion in the hearing officer declining to allow him to ask some of the requested questions that were not relevant to this matter. Moreover, contrary to appellant's assertion, he was offered and declined the opportunity to call witnesses on his behalf at the hearing. On line 14(c) of the adjudication, which states, "[a]ll witnesses the inmate asks to be called including those requested through the investigator," the hearing officer noted that none were requested. The signature of appellant's counsel substitute on line 16 clearly indicated that the information on the previous lines accurately reflected what took place at appellant's disciplinary hearing.

Our review of the DOC's decision is limited. Only where the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole, will we reverse the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions). In this case, the hearing officer relied on the testimony of eyewitness officers and corroborating reports to determine that appellant's story was not credible, which is a sufficient record. As there is substantial credible evidence to support the agency's adjudication of guilt of the three infractions, there is no basis to disturb that determination.

Nor do we discern any basis to interfere with the sanctions imposed by the agency. The hearing officer expressly found this was a very serious disciplinary issue and made clear the sanctions were imposed based on the need to deter this type of behavior for the safety of the staff and for the security of the prison.

 
Affirmed.

In instances where in-person confrontation/cross-examination of a witness is granted, the inmate or counsel substitute submits written questions to the hearing officer, who reviews them to ensure that they are relevant and non-harassing. The witness then appears in person at the courtline hearing, with the inmate present. The hearing officer reads the written questions allowed, the witness verbally answers the questions, and the hearing officer records the witness' answers in writing. After the questions are asked and answered, the inmate and/or counsel substitute is provided an opportunity to submit follow-up questions, which are carried out in the same manner as the original questions. For safety and security reasons, the inmate is not permitted to directly question the witness.

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A-0699-08T3

November 2, 2009