PHILLIP A. DIXON 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NOT FOR PUBLICATION WITHOUT THE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-2765-10T4

PHILLIP A. DIXON,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________________________

July 24, 2014

Submitted July 15, 2014 Decided

Before Judges Yannotti and Maven.

On appeal from the New Jersey Department of Corrections.

Phillip A. Dixon, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Marvin L. Freeman, Deputy Attorney General, on the brief).

PER CURIAM

Phillip A. Dixon (Dixon) appeals from a final determination of the New Jersey Department of Corrections (NJDOC), which found that he committed prohibited act .210, possession of anything not authorized for retention or receipt by an inmate, in violation of N.J.A.C. 10A:4-4.1. We affirm.

This appeal arises from the following facts. Dixon is presently incarcerated at New Jersey State Prison in Trenton, New Jersey, where he is serving a sentence of thirty years to life for murder. On October 22, 2010, Dixon was found in possession of twenty-seven electrical power cords. The ends of the cords had been removed and their metal parts were missing. The cords were confiscated because they were contraband and posed a threat to the safety and security of the prison.

Dixon was charged with committing prohibited act .210. A hearing on the charge took place on October 25, 2010. Dixon had the assistance of counsel substitute. Dixon admitted that he possessed the electrical cords but claimed that they were used as "antenna wire" to improve television reception. He declined the opportunity to confront or cross-examine adverse witnesses.

The hearing officer found Dixon guilty of the charge. On the adjudication report, the hearing officer noted that the number of cords that Dixon possessed was excessive. The cords had been altered and they were unsafe. In addition, the cords were not connected in a manner so that they could be used as "antenna wire." The hearing officer imposed the following sanctions: ten days of detention, ninety days of administrative segregation, and the loss of sixty days of commutation time. The last sanction was suspended for sixty days.

On October 26, 2010, Dixon filed an administrative appeal from the hearing officer's decision. Dixon sought leniency and claimed that the facts had been misinterpreted. He said the electrical cords had been altered so they could be used to improve television reception. On November 5, 2010, Assistant Superintendent Jim Barnes upheld the hearing officer's finding of guilt, but modified the sanctions by suspending the period of administration segregation that had been imposed.

Dixon thereafter filed an appeal to this court. Because Dixon had included documents in his appendix that were not part of the agency's record, the NJDOC filed a motion striking Dixon's brief and appendix. Dixon opposed that motion and filed a cross-motion for remand.

By orders entered on December 23, 2011, we denied the NJDOC's motion to strike and granted Dixon's cross-motion. We temporarily remanded the matter to the NJDOC for clarification or supplementation of the record "as may be appropriate." We directed the Department to complete the remand proceedings by February 15, 2012.

Later, we granted the Department's motion to extend the time for the remand proceedings. We also denied Dixon's motion for summary disposition.

On remand, the Department granted Dixon a new administrative appeal, and allowed Dixon to submit all documents in support of his appeal, including the documents he had previously included in the appendix filed in this court. On February 21, 2012, Assistant Superintendent William Anderson upheld the hearing officer's decision and the previous determination by Assistant Superintendent Barnes. This appeal followed.

Dixon argues that he was denied due process because: (1) the charging officer did not forward his report to the appropriate supervisor; (2) the hearing officer refused in-person confrontation with witnesses in violation of the administrative code; and (3) the administrator did not properly consider his claims in the administrative appeals. We find no merit in these arguments.

The scope of our review in appeals from final decisions of administrative agencies is "severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1983)). "Courts can intervene only in those rare circumstances in which an agency action is clearly inconsistent with its statutory mission or with other State policy." Ibid.

When reviewing a final decision of the NJDOC imposing disciplinary sanctions upon an inmate, we consider whether there is substantial evidence to support the agency's factual findings and whether, in rendering its decision, the Department afforded the inmate the process due. McDonald v. Pinchak, 139 N.J. 188, 201-03 (1995); Jacobs v. Stephens, 139 N.J. 212, 215 (1995).

We are satisfied from our review of the record that there is sufficient evidence in the record to support the NJDOC's determination that Dixon committed prohibited act .210. As we have explained, Dixon admitted possessing the electrical cords. There is no evidence indicating that Dixon acquired the cords in the regular correctional process. According to Assistant Superintendent Anderson, inmates are permitted to have only two "stinger wires." Inmates are not permitted to have twenty-seven electrical cords. Moreover, the record supports the hearing officer's rejection of Dixon's claim that the cords were for use as television "antenna wire."

Dixon argues, however, that he was denied the opportunity to confront or cross-examine witnesses at the hearing. However, the hearing officer's adjudication report states that Dixon was offered the opportunity to confront or cross-examine witnesses and he declined the offer. Counsel substitute signed the form, indicating that it accurately reflected what took place at the hearing.

Dixon also contends that the officer who witnessed the prohibited act failed to forward his disciplinary report to the appropriate supervisor. According to Dixon, under N.J.A.C. 10A:4-9.1(b), only a custody supervisor can refer a matter to a disciplinary hearing officer. We disagree.

The disciplinary report indicates that the supervisor was notified of the disciplinary act, and the matter was referred for investigation. The investigator found that the charge should be referred for a disciplinary hearing. There is no indication in the record that the correctional supervisor did not approve the referral of the matter to the hearing officer.

Dixon additionally contends that the charge should have been addressed as a minor violation, appropriate for an on-the-spot disciplinary charge pursuant to N.J.A.C. 10A:4-7.1. However, as the hearing officer determined, Dixon was found with twenty-seven electrical cords. In his decision, Assistant Superintendent Anderson noted that these wires could have been strung together, creating a twenty-seven foot cord that could have been a danger to staff members. The NJDOC did not act arbitrarily or capriciously in treating this as a serious, rather than minor, disciplinary infraction.

Dixon further argues that he was denied due process in the administrative appeal because there was no "investigation" of the arguments he raised. Dixon contends Assistant Superintendent Barnes did not consider his due process arguments. He says Barnes did not indicate that the decision was based on substantial evidence, and Barnes failed to render a decision on the appeal within the time prescribed by the administrative code.

We are convinced that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, as we noted previously, after Dixon appealed to this court, we remanded the matter to the NJDOC. Assistant Superintendent Anderson again reviewed the record, along with two handwritten statements that Dixon had not submitted earlier.

Anderson again upheld the hearing officer's decision. There is no indication in the record that Anderson failed to consider all of Dixon's arguments. After careful review of the record, we conclude that Dixon was afforded all of the due process protections required by Avant v. Clifford, 67 N.J. 496, 528-32 (1975), subsequently codified in N.J.A.C. 10A:4-9.1 to -9.28.

Affirmed.