BRADLEY PETERSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3427-11T2

BRADLEY PETERSON,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

________________________________________________________________

April 29, 2013

 

Submitted March 13, 2013 - Decided

 

Before Judges Grall and Koblitz.

 

On appeal from New Jersey Department of Corrections.

 

Bradley Peterson, appellant pro se.

 

 

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

PER CURIAM

Appellant Bradley Peterson, a Rhode Island inmate currently incarcerated at South Woods State Prison (SWSP) serving a maximum thirty-five-year prison term for convictions including robbery and armed assault, appeals from the December 27, 2011 decisions of the Department of Corrections (Department) imposing discipline for tampering with a fire alarm, *.150, damaging government property, .152, and disrupting the orderly running of the correctional facility, *.306. N.J.A.C. 10A:4-4.1(a). On infraction *.150, Peterson was sanctioned to fifteen days detention, 365 days administrative segregation and a 365-day loss of commutation time. On infraction .152, he was sanctioned to ninety days administrative segregation, sixty days loss of commutation time and a thirty-day loss of recreation privilege. On infraction *.306, he was sanctioned to fifteen days detention, 365 days administrative segregation and a 365-day loss of commutation time.1 Additionally, Peterson was required to pay restitution in the amount of $29.82 to repair the sprinkler head he damaged in his cell. Because the Department is unable to demonstrate that Peterson was afforded his due process rights to a fair hearing, we reverse and remand for a new hearing.

Peterson is incarcerated in a Management Control Unit,2 where he indicates that he is allowed to interact on a limited basis with staff only. He has been held in these conditions for approximately twelve years.3

On December 21, 2011, Peterson made a complaint after his pain medication, Motrin, was changed. He acknowledges that when he was unable to obtain satisfaction, he removed the sprinkler in his cell causing flooding in the cell.4 He characterizes this behavior as an act of civil disobedience that did not injure anyone. The Department maintains that he also used the sprinkler to etch messages into the walls of his cell. The Department alleges that this behavior caused a widespread interruption in the orderly running of the facility.

Peterson claims that his disciplinary hearing lasted less than a minute and that he was not provided an opportunity to review the original documentary evidence accumulated by the Department or clear copies of the evidence. The Department does not address the length of the hearing. It indicates that original documents were not given to Peterson out of concern that he might destroy them.

Peterson raises the following issues on appeal:

POINT I: THE HEARING OFFICER DID NOT ALLOW ME TO DEFEND MYSELF AT THE HEARING.

 

POINT II: THE SANCTIONS WERE EXCESSIVE.

 

POINT III: THE HEARING OFFICER DID NOT CONSIDER THE CIRCUMSTANCES OF THE SITUATION.

 

POINT IV: OTHER PROCEDURES WERE VIOLATED.

 

Our scope of review is limited, and Peterson's contentions must be analyzed in accordance with that standard. In re Stallworth, 208 N.J. 182, 194 (2011); Moore v. Dep't of Corrs., 335 N.J. Super. 103, 110 (App. Div. 2000). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" Stallworth, supra, 208 N.J. at 194 (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)).

Echoing Peterson's inability to review the evidence, our review of this matter was severely hampered by the Department's failure to prepare a proper appendix. The Department's brief labels forty-seven pages of its appendix as "Exhibits," contrary to Rule 2:6-1(c).5 Included are nine darkened pages, which the Department describes in its brief as photographs reviewed by the hearing officer as part of the evidence against Peterson. These nine pages are completely indecipherable. As we have stated previously:

our review of this matter has been grossly hampered by the undecipherability of most of the record. The various statements and reports which comprise the record all consist primarily of handwritten materials. We have no difficulty reading [the inmate]'s handwritten materials. But a combination of illegible handwriting and of reproductions which are either smudged or blurred have made a substantial portion of the forms completed by officers of the State Prison or of the Department of Corrections entirely unreadable. Since an inmate has a right to appeal the imposition of disciplinary sanctions, he is also entitled to have us furnished with a record which makes our review possible. Because of the nature of appeals by prison inmates, the responsibility for assuring that the reviewing court has a useable record must fall to the Attorney General representing the State or its agents. The illegibility of the record would be a sufficient reason for a remand in the present case even if there were no other reason. See McDonald v. Pinchak, [ 139 N.J. 188, 199] (1995) ("Reviewing bodies must be able to examine a record of disciplinary proceedings.").

 

[Johnson v. Dep't of Corrs., 298 N.J. Super. 79, 81 (App. Div. 1997).]

 

The Department argues that Peterson became irate after he was denied access to the original records in the Department's possession and refused to participate further in the hearing. It refers en masse to fifteen pages of the appendix, which consist of hand-written forms that are difficult to decipher. In a December 27, 2011 typed report by the hearing officer in the portion of the appendix labeled "Exhibits," the hearing officer states that she offered to read the documentary evidence to Peterson, but refused to let him read the evidence himself. She indicates that Peterson "became enraged and furious and started demanding the paperwork in his hand and refused to comply with the rest of the hearing procedures. DHO[6] ended the hearing at this time."

We conclude that Peterson did not receive the procedural due process to which he was entitled under the principles of McDonald v. Pinchak, supra, and Avant v. Clifford, 67 N.J. 496 (1975). As we have noted:

We recognize the deference to which a decision of an administrative agency is entitled, and we do not require the same level of detail in prison disciplinary decisions as in some other matters. Blackwell v. Dep't. of Corr., [ 348 N.J. Super. 117, 123] (App. Div. 2002). Our appellate obligation, however, "'requires far more than a perfunctory review.' We are constrained to engage in a 'careful and principled consideration of the agency record and findings.'" Williams v. Dep't. of Corr., [ 330 N.J. Super. 197, 203-04 (App. Div. 2000) (quoting Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93] (1973)).

 

[Johnson v. Dep't of Corrs., 375 N.J. Super. 347, 353 (App. Div. 2005).]

 

An inmate in a disciplinary hearing must be given the original or a clear copy of the evidence to be used against him if the hearing process is to have any legitimacy.

Peterson acknowledges that he refused the assistance of a counsel-substitute, but argues convincingly that he was entitled to review the evidence amassed by the Department, including clear photographs and reports. The final administrative decision was arbitrary, capricious, and unreasonable given the lack of a fair hearing.

R

eversed. We do not retain jurisdiction.

1 Peterson indicates that he does not know if these sanctions were to run concurrently or consecutively. The Department has not provided us with information to resolve this ambiguity.

2 N.J.A.C. 10A:5-1.3 defines Management Control Unit (MCU) as "a close custody unit to which an inmate may be assigned if the inmate poses a substantial threat to the safety of others; of damage to or destruction of property; or of interrupting the operation of a State correctional facility." Periodic reviews of MCU placement are required. N.J.A.C. 10A:5-2.10.

3 Peterson indicates that such isolation could lead to mental health issues. He claims that he has been treated harshly because he assaulted a corrections officer in a Rhode Island prison prior to his transfer to New Jersey. He also claims that his status as an assault victim of New Jersey corrections officers, who were prosecuted for their behavior, also resulted in his particularly harsh treatment.

4 The records reflect that Peterson also flooded his cell by use of the toilet on this date, but it is unclear if this occurred before or after he tampered with the sprinkler.

5 See Kubiak v. Robert Wood Johnson Univ. Hosp., 332 N.J. Super. 230, 235 (App. Div. 2000) (discussing the difficulty caused by an improperly prepared appendix).

6 Disciplinary Hearing Officer.