EARL SMITH 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NOT FOR PUBLICATION WITHOUT THE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-2496-08T32496-08T3

EARL SMITH,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

________________________________________________________________

 

Submitted October 27, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from a Final Decision of the

New Jersey Department of Corrections.

Earl Smith, appellant pro se.

Anne Milgram, Attorney General,

attorney for respondent (Melissa H.

Raksa, Assistant Attorney General, of

counsel; Susan M. Scott, Deputy Attorney

General, on the brief).

PER CURIAM

Appellant Earl Smith, an inmate at East Jersey State Prison, appeals from a final decision of the Department of Corrections (DOC) adjudicating him guilty of disciplinary infraction *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility[.]" N.J.A.C. 10A:4-4.1. Following a hearing, appellant was sanctioned ten days detention, ninety days of loss of commutation credit, ninety days of administrative segregation and fifteen days' loss of recreation privileges. On the administrative appeal, the Commissioner's office affirmed the hearing officer's findings and sanctions. Appellant appealed, and we affirm.

These are the relevant facts. On December 7, 2008, appellant was in the shower shouting obscenities and behaving in a strange and irrational manner. Senior Corrections Officer Scott went to appellant's cell, where Scott observed that appellant's property was packed up and six signs were hanging on the wall with the word "D.I.E" written on them. Sergeant Aronow was notified, and he proceeded to the shower area where he ordered appellant to leave. Appellant was slow to respond. The Sergeant and another corrections officer observed that other inmates in the shower area were shying away from appellant, backing themselves against the wall and appearing nervous. Finally, appellant was removed from the shower area, placed in handcuffs and taken to the psychology department for examination. Appellant's conduct required numerous corrections staff to respond and disrupted the morning shop and mass movement.

Following service of the charges on appellant, he pled not guilty and requested witness statements. At the hearing, the witnesses indicated that they were either not in the area or neither saw nor heard the conversation between appellant and the correction officers.

Appellant denied yelling although he did admit that something was said at the cell. He also alleged that these charges were retaliatory because he had filed Inmate Remedy System Forms regarding other issues. Following the adjudication of guilty and the denial of the administrative appeal, this appeal followed.

On appeal, appellant asserts that the sanctions were based on "less than substantial evidence." In his reply brief, he challenges consideration of the confidential psychological report as well as objecting to various terminology utilized by the Commissioner in his brief as "intended to conjure, and inflame, bais [sic], prejudice, and discrimination [sic]." Finally, he reiterates his earlier argument that the Commissioner's claims are meritless.

Prison disciplinary hearings are not a criminal prosecution, and the full spectrum of rights due to a criminal defendant do not apply. See Avant v. Clifford, 67 N.J. 496, 522 (1975). However, prisoners are entitled to certain limited protections prior to being subject to disciplinary sanctions. These rights, defined in Avant, include: (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal that may consist of personnel from the central office staff of the Department of Corrections; (3) a limited right to call witnesses and present documentary evidence in defense of the charges; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; (6) where the charges are complex or the inmate is illiterate or otherwise unable to prepare his defense, the inmate should be permitted the assistance of counsel-substitute. Id. at 525-33. The procedural due process requirements articulated in Avant were reaffirmed by the New Jersey Supreme Court. See McDonald v. Pinchak, 139 N.J. 188 (1995); Jacobs v. Stephens, 139 N.J. 212 (1995). The Court found that the current regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." McDonald, supra, 139 N.J. at 202.

Here, the requirements alluded to in Avant were met. Appellant received timely notice of the charges and a prompt initial hearing. N.J.A.C. 10A:4-9.8(c) (requiring a hearing within three days of placement in pre-hearing detention unless, as here, the third day falls on a weekend). The hearing officer was entitled to delay the hearing for a short and reasonable time to allow securing appellant's witnesses' statements. N.J.A.C. 10A:4-9.9. The hearing was conducted before an impartial tribunal in the presence of a counsel substitute, and appellant was given the opportunity to proffer both an oral and written statement.

Appellate courts have a limited role in reviewing the decisions of administrative agencies. We will not reverse an agency decision unless 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, 656-57 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). The relevant standard of review is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering the 'proofs as a whole[]' . . . ." In re Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964))). In appeals concerning prison infractions, our focus must be on whether an adjudication of guilt is supported by "substantial evidence." Avant, supra, 67 N.J. at 530; see also McDonald, supra, 139 N.J. at 195-96.

The record before us provides sufficient credible evidence to support the hearing officer's findings as affirmed by the Assistant Superintendent. The evidence presented to the hearing officer supported the finding that appellant was acting in an inappropriate manner in the shower and further, that corrections personnel were dispatched to the scene resulting in a disruption of the operation of the facility.

Lastly, we dispose of the issue regarding the confidential evaluation. As the factual issues are dispositive of this appeal, we need not and do not consider the confidential evaluation submitted to us on this appeal. In sum, any issue regarding that evaluation is moot.

Affirmed.

(continued)

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A-2496-08T3

November 10, 2009