TAMIR MASHHOOD 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NOT FOR PUBLICATION WITHOUT THE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-0009-10T4

TAMIR MASHHOOD,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________________

November 16, 2011

 

Submitted November 1, 2011 - Decided

 

Before Judges Reisner and Hayden.

 

On appeal from the New Jersey Department of

Corrections.

 

Tamir Mashhood, appellant pro se.

 

Paula T. Dow, Attorney General, attorney for respondent (Jennifer S. Hsia, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Appellant Tamir Mashhood, an inmate currently incarcerated at Northern State Prison, appeals from a final decision of the Department of Corrections (DOC) finding him guilty of two disciplinary infraction charges, *.306, conduct which disrupts or interferes with the running of a correctional facility, and *.002, assault on any person. Having considered the record before us and the applicable law, we affirm.

Mashhood is currently serving an eight-year sentence with a mandatory minimum term of twenty months for three counts of possession of a controlled dangerous substance (CDS) and two counts of manufacturing, dispensing or distributing CDS. On May 25, 2010, Mashhood was involved in an incident that led to the charges at issue here. According to the statements of four prison employees, Operations Counselor Trammel confronted Mashhood about a cell phone and told him to remain in the room to discuss the matter. Instead, Mashhood left the room and ran down the hallway with staff yelling at him to stop. At some point along the way Operations Counselor Costley encountered Mashhood and tried to physically stop him. However, he elbowed Costley in the chest, broke away and continued running. Soon, other officers joined the pursuit and eventually Senior Counselor Gonzales subdued Mashhood. In order for staff to assist in the pursuit, the morning lecture at the facility had to end early.

Mashhood denied the charges and represented that he was set up by Trammell, who wanted to sell him a cell phone. His initial written explanation was "[t]hey were chasing me and I had no understanding as to why. When the staff jumped in front of me, I bum[p]ed into them but I didn't know what was going on."

The next day, May 26, 2010, written charges were served on Mashhood and a hearing was scheduled for May 27. Mashhood requested and obtained a counsel substitute, who asked for extra time to prepare for the hearing. Mashhood and his counsel substitute also served written confrontation questions on the witnesses.

At the hearing on June 9, 2010, Mashhood pled not guilty and gave a statement that there had been no disturbance and no assault on Costley. After considering the evidence, Hearing Officer Makarski found Mashhood guilty of both charges. In his written decision, the hearing officer stated that he was crediting the statements of staff that Mashhood had been observed "running through the facility attempting to pre[v]ent apprehension by staff. [Mashhood]'s actions disrupted movements and all available staff were summoned to pursue [] Mashhood." In reference to the assault charge, the hearing officer found that the evidence showed that "Mashhood elbowed counselor [Costley] in the chest to avoid being detained." The hearing officer determined that the staff's reports and their answers to the questions propounded by Mashhood reflected "honest & straightforward responses," adding that Mashhood and his counsel substitute "failed to show what staff would gain by lying." As a sanction, the hearing officer gave Mashhood fifteen days detention, 365 days loss of commutation time (LOCT) and 365 days administrative segregation for each charge.

Immediately thereafter, Mashhood filed an administrative appeal. On June 11, 2010, Assistant Supervisor Buechele agreed with the finding of guilt but modified the sanctions to fifteen days detention, 180 days LOCT and 180 days in administrative segregation for each charge. This appeal followed.

On appeal, Mashhood argues that the DOC's finding of guilt must be reversed as arbitrary and capricious because the evidence submitted failed to prove the charges against him. He further argues that the staff reports were not believable and that the hearing officer showed bias against him by not taking all the evidence in his favor into consideration.

Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J.182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J.571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Ramirez v. Dep't of Corr., 382 N.J. Super.18, 23 (App. Div. 2005) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J.219 (2006).

The DOC has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J.239, 252 (1987). Furthermore, we have previously noted that "[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment." Russo v. N.J. Dep't of Corr., 324 N.J. Super.576, 584 (App. Div. 1999).

Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. SeeAvant v. Clifford, 67 N.J.496, 522 (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id.at 525-33; see alsoMcDonald v. Pinchak, 139 N.J.188, 193-96 (1995). We note that Mashhood was afforded all these recognized rights that an inmate facing disciplinary charges was entitled to receive.

"A finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C.10A:4-9.15(a). Substantial evidence means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Gas & Elec. Co., 35 N.J.358, 376 (1961).

B

ased upon our review of the record, we reject as without merit Mashhood's argument the hearing officer's determination was not based upon substantial credible evidence on the record. We are satisfied that the four staff reports, which are generally consistent with one another, provided substantial evidence that was more than adequate to support the agency's findings as to both charges. While Mashhood's account differs significantly from the four reports, the hearing officer reasonably decided to credit the staff based upon their straightforward answers and lack of motive to fabricate. Because the record contains substantial evidence to support the findings of the agency, we must defer. Henry, supra, 81 N.J.at 579-80. Thus, we find that the agency's decision was not arbitrary or capricious.

Affirmed.