MICHAEL PARLIN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL PARLIN,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________

April 30, 2014

Submitted April 7, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the New Jersey Department of Corrections.

Michael Parlin, appellant pro se.

John J. Hoffman, Acting Attorney General,

attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison disciplinary appeal. Appellant Michael Parlin, an inmate currently confined at East Jersey State Prison, appeals a July 30, 2012 Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited acts *.002, assaulting any person, and *.803, attempting to commit any offense preceded by an asterisk. N.J.A.C. 10A:4-4.1(a). We affirm.

On July 12, 2012, appellant and several other inmates at South Woods State Prison, where they were incarcerated, were returning to their cells. Corrections Officer Ambros instructed appellant to keep his hands on his head and his elbows inward. Appellant refused and told Ambros, "fuck da bullshit." When Ambros ordered him to turn and kneel on the ground, he responded aggressively and attempted to punch Ambros. Ambros struck appellant and, with the assistance of Officer Riggio, restrained him before escorting him to the medical department. Several corrections staff, including Officers Dowdy, Nardelli and Tomlin, observed the incident.

On July 13, 2012, the DOC formally charged appellant. He denied the charges and sought a polygraph exam, but the administrator denied the request because he found no new evidence or issues of credibility to warrant it.

At the hearing, appellant denied Ambros's account. He claimed that the officers had assaulted him and, in support, proffered statements from three other inmates; but none of those witnesses corroborated appellant's claims.

The hearing officer found appellant guilty, and sanctioned him with ten days of detention with credit for time served, 270 days of administrative segregation and 270 days of lost commutation time.

On administrative appeal, appellant argued that he was entitled to a rehearing because he was denied a polygraph. The associate administrator affirmed the hearing officer's findings and related sanctions.

On appeal, appellant reiterates the arguments he advanced below, adding that the nurse's description of his injuries undermines Ambros's allegations.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. See In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a strong presumption of reasonableness. City of 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 may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). Further,

it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.

[Ibid. (citations omitted).]

Here, there is substantial credible evidence of appellant's guilt. Appellant refused to obey orders, stood facing Officer Ambros in an aggressive manner with clenched fists, and threw a punch at the officer. He continued to be combative until secured in handcuffs by the officers.

We are also satisfied that the administrative adjudication comported with procedural due process. See Avant v. Clifford, 67 N.J. 496, 521-22 (1975); McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995). Appellant timely received notice of the charge. A DOC officer thoroughly investigated the matter. Appellant was afforded counsel substitute and an impartial hearing, at which time he was granted the opportunity to confront or cross-examine Officer Ambros. He was also free to call witnesses on his behalf and submitted statements from other inmates.

Appellant nevertheless complains he was denied his request for a polygraph examination. An inmate, however, does not have an unconditional right to a polygraph. See Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). The applicable regulation, N.J.A.C. 10A:3-7.1,1 "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). A request should be granted only "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20.

Here, there was no impairment of fundamental fairness in denying the polygraph request, inasmuch as appellant points to no evidence to elevate this dispute to that of a "serious question of credibility." In fact, Officer Ambros's answers to confrontation were consistent with all of the written reports of the officers who observed the incident and supported the *.803/*.002 charge. Therefore, we are satisfied that in adjudicating the charge, there was no issue of credibility that could not be determined on the record amassed at the hearing, and the denial of appellant's request for polygraph and other testing did not compromise the fundamental fairness of the disciplinary process.

Affirmed.

1 N.J.A.C. 10A:3-7.1(a) provides that

[a] polygraph examination may be requested by the Administrator or designee:

1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or

2. As part of a reinvestigation of a disciplinary charge, when the Administrator . . . is presented with new evidence or finds serious issues of credibility.