BRIAN FOWLKES 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NOT FOR PUBLICATION WITHOUT THE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-1312-11T3

BRIAN FOWLKES,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

--

October 26, 2012

Submitted October 16, 2012 Decided

Before Judges Yannotti and Hoffman.

On appeal from the New Jersey Department of Corrections.

Brian Fowlkes, appellant pro se.

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christine H. Kim, Deputy Attorney General, on the brief).

PER CURIAM

Brian Fowlkes appeals from the final determination of the Department of Corrections (DOC) imposing disciplinary sanctions. We affirm.

On August 5, 2011, Fowlkes was transported from New Jersey State Prison in Trenton to the Middlesex County Courthouse for a pre-trial conference. On that date, Sheriff Officer Ronald Ware went to search Fowlkes in his holding cell. Officer Ware ordered Fowlkes to sit on a bench, at which time Fowlkes turned to him, pulled back his hand with a clenched fist and stated, "I will fuck you up." A struggle ensued and Officer Ware was struck in the face by Fowlkes's forearm. Fowlkes was placed under arrest and charged with violation of N.J.S.A. 2C:12-1(b)(5)(a), N.J.S.A. 2C:12-3(a), N.J.S.A. 2C:29-1(a) and N.J.S.A. 2C:29-2a(3)(a).

A disciplinary investigation followed. On August 10, 2011, the investigation concluded, which resulted in disciplinary charges *.005, threatening another with bodily harm, and *.002 assaulting another person, being filed against Fowlkes. On August 12, 2011, Fowlkes was served with the disciplinary charges and the matter was referred to a hearing officer.

A disciplinary hearing began on August 15, 2011. Fowlkes pleaded not guilty to the charges and was granted the assistance of counsel substitute. The hearing officer did not permit Fowlkes to cross-examine the witnesses against him in person, but rather allowed Fowlkes to submit his cross-examination questions in advance, in writing, and then await written responses, with no follow-up questions.

The disciplinary hearing concluded on September 1, 2011. The hearing officer viewed a video of the incident, and considered written statements submitted by Foulkes, as well and the responses from the sheriff officers to the written confrontation questions. After considering all the evidence, the hearing officer found Fowlkes guilty of all charges. On the *.005 charge, the hearing officer imposed sanctions of 15 days detention, with credit for time served; 365 days administrative segregation; 365 days loss of commutation credit; and 30 days loss of recreation privileges. On the *.002 charge, the hearing officer imposed sanctions of 15 days detention with credit for time served; 365 days administrative segregation; 365 days loss of commutation credit; and 30 days loss of recreation privileges, consecutive to the *.005 charge.

On September 13, 2011, Fowlkes filed an administrative appeal. On September 28, 2011, Assistant Superintendent William J. Andersen upheld the hearing officer's decision.

This appeal followed. On appeal, Fowlkes argues (1) he was denied due process by the hearing officer denying his request to confront the witnesses against him in-person and (2) the disciplinary charges should have been dismissed because they were not filed within forty-eight hours as required by N.J.A.C. 10A:4-9.2.

Our role in reviewing a decision of the DOC is limited. Decisions of administrative agencies are presumptively reasonable. Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We will only reverse an agency's decision where it is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

As to Fowlkes's first argument, he fails to demonstrate he was entitled to in-person confrontation of the witnesses against him. Prison disciplinary proceedings do not require the same due process protections as in criminal courts. Avant v. Clifford, 67 N.J. 496, 523-24 (1975). Prisoners facing disciplinary charges have a right to confront and cross-examine witnesses; however, the right can be limited based on the circumstances surrounding any particular proceeding. Id. at 529-30.

Here, the hearing officer limited Fowlkes's opportunity to confront and cross-examine the witnesses against him for good reason. All three witnesses Fowlkes sought to confront and cross-examine in person are employees of the Middlesex County Sheriff's Department, not the DOC. Pursuant N.J.A.C. 10A:4-9.14, the hearing officer had authority to reject Fowlke's request to call witnesses who are "not employed . . . by the [DOC.]" Instead, the hearing officer asked the witnesses to "submit a written statement answering cross-examination questions in lieu of an in-person appearance." N.J.A.C. 10A:4-9.14(b)(9). Thus, we find Fowlkes was provided with sufficient due process in regards to his ability to confront and cross-examine witnesses.

We reject Fowlkes's second argument as well. N.J.A.C. 10A:4-9.2 provides in its pertinent part that a "disciplinary report shall be served upon the inmate within 48 hours after the violation unless there are exceptional circumstances." However, "the failure to adhere to . . . the time limit[] . . . shall not mandate the dismissal of a disciplinary charge. N.J.A.C. 10A:4-9.9(a). In deciding whether a disciplinary charge should be dismissed for late filing, hearing officers are guided to consider the following factors in the exercise of their discretion:

The length of the delay;

The reason for the delay;

Prejudices to the inmate in preparing his/her defense; and

The seriousness of the alleged infraction.

[Ibid.]

Here, the disciplinary charges were filed on August 10, 2010, the same day the Sheriff's Department completed its investigation. The charges were served on Fowlkes two days later. Thus, there was a good reason for this short delay the completion of the investigation of a very serious alleged infraction, assault of an officer. Further, Fowlkes has not shown any prejudice resulting from the delay. Thus, we conclude exceptional circumstances existed justifying the delay in serving Fowlkes with the disciplinary charges.

Affirmed.