DASHIR DONALDSON 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NOT FOR PUBLICATION WITHOUT THE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-2229-09T3

DASHIR DONALDSON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________

December 1, 2010

Submitted November 15, 2010 - Decided

Before Judges Kestin and Newman.

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

Dashir Donaldson, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Robert Lougy, Assistant Attorney General, of counsel; Daniel M. Vannella, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Dashir Donaldson appeals from a Final Agency Decision upholding the hearing officer's finding that inmate committed prohibited act *.202, "possession or introduction of a weapon, such as, but not limited to, a sharpened instrument, knife or unauthorized tool," in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

The relevant facts may be summarized as follows. According to the disciplinary report of this matter, at approximately 2:55 p.m. on November 10, 2009, Senior Corrections Officer Lee, "performing a routine cell search of room 18 on A-Wing, found one sharpened piece of plastic with [a] cloth handle wrapped inside a blanket." The discovered contraband was found in inmate's cell.

Inmate disputed the finding of this instrument, commonly known as a "shank," claiming he had a disagreement with the officer and that the shank was planted when he was out for recreation. He asserted that he had questioned the officer's unauthorized limitation of recreation time and that resulted in this retaliatory action. In a supporting letter, inmate alleged that he did not have access to the "plexiglass" material that had been sharpened and that his cell was the only one searched and it was not a "routine cell search." Inmate made these claims in support of his request for a polygraph examination.

The polygraph request was denied by Associate Administrator Mark Salaga, who concluded that the hearing process was adequate to determine any credibility issues.

No witnesses testified on behalf of inmate. He declined

to confront any adverse witnesses. He was found guilty of the charge, and was sanctioned with fifteen days' detention with credit for time served, 180 days' loss of commutation time, and 180 days' administrative segregation.

In inmate's administrative appeal, the Assistant Superintendent upheld the decision and commented that the hearing officer found SCO Lee credible. It was also noted that inmate declined the opportunity for confrontation, and provided no witnesses to support his alleged dispute with SCO Lee. His second request for a polygraph examination on appeal was denied since the Assistant Superintendent stated inmate "did not choose to utilize the other options available to [him]."

On appeal, inmate raises the following issue for our consideration:

THE DECISION TO DENY APPELLANT A POLYGRAPH EXAMINATION CONCERNING SERIOUS DISCIPLINARY CHARGES AS PROVIDED FOR BY AGENCY RULES DENIED APPELLANT THE ONLY MEANINGFUL OPPORTUNITY APPELLANT HAD TO DEFEND AGAINST THE CHARGE OF POSSESSION OF A WEAPON.

Our review of the record satisfies us that the decision of the agency is supported by sufficient credible evidence in the record as a whole and that inmate's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D),(E). We add, however, the following brief comments.

An inmate is not automatically entitled to a polygraph examination upon request. N.J.A.C. 10A:3-7.1(c). There must be "sufficient cause for granting the request." Ibid. Inmate's claim is that the denial of a polygraph examination deprived him of his only meaningful opportunity to defend against the charge that a shank had been found in his cell concealed in a blanket, because it was only his word that a dishonest corrections officer with a grudge against him planted the shank.

Inmate was granted a full opportunity to present his defense to the charges, to cross-examine, and to present any witnesses on his own behalf. There was no evidence presented that suggested that the officer's testimony lacked credibility. There was no evidence to support inmate's contention that the search conducted was limited to his cell. Inmate was not present when the search was conducted as part of a routine search of cells. Nor could he dispute that the material used to make the shank could have been covertly brought into the prison. Inmate had every opportunity to present evidence by pointing out "inconsistencies in the SCO's statements" or other evidence, "such as a statement by another inmate or staff member on [his] behalf." See Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). He offered none.

There was no fundamental unfairness in the proceeding, and nothing that would have warranted the granting of the request for a polygraph. See id. at 24-25. The denial of inmate's request for a polygraph examination did not constitute an abuse of discretion. Substantial evidence supported the determination that inmate possessed the sharpened instrument in violation of N.J.A.C. 10A:4-4.1(a). Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

A