DANIEL U. BELL 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NOT FOR PUBLICATION WITHOUT THE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-0

DANIEL U. BELL,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________________

August 26, 2014

Submitted August 12, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from final agency decision of the New Jersey Department of Corrections.

Daniel U. Bell, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Inmate David Bell appeals from the final agency decision of the Department of Corrections (DOC) imposing discipline for his violations of prohibited acts *.012, "throwing bodily fluid at any person or otherwise purposely subjecting such person to contact with a bodily fluid," .052, "making sexual proposals or threats to another," and *.306, "conduct which disrupts or interferes with the security or orderly running of the correctional facility," in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Bell is an inmate at Northern State Prison. The incident that resulted in the disciplinary charges occurred in South Woods State Prison. On December 10, 2012, he was housed in a dry cell, that is, a cell without water where inmates may be placed for, among other reasons, secreting contraband in a body cavity. N.J.A.C. 10A:3-5.8. Shortly before noon, Sergeant Gregory Tomlin was notified that Bell had to defecate. By the time the sergeant arrived at Bell's cell, Bell had already defecated in his food tray on the cell floor. Officers removed Bell from the cell, searched it for contraband, then placed Bell back in the cell.

Assistant Superintendent Gentilini,1 who was in the area, attempted to speak to Bell. He responded, "suck my f****** dick" and "f*** you." He then began to ram his head, shoulder, and hands into his cell door, ignoring several orders from the Assistant Superintendent to stop his self-injurious behavior. At the Assistant Superintendent's direction, other corrections officers entered the cell, restrained Bell, and medicated him. Disciplinary charges were served three days later.

A disciplinary hearing scheduled for December 14, 2012, was postponed so that Bell could be evaluated by a psychologist. Counsel substitute was appointed at Bell's request. At the hearing, counsel substitute informed the hearing officer that Bell did not remember anything about the incident. He was not in his right mind. Counsel substitute explained that on the day of the incident, after Bell informed officers he had to use the bathroom, they didn't respond quickly enough. Consequently, Bell defecated on the tray so that his stool could be inspected for drugs. According to counsel substitute, Bell's subsequent self-destructive behavior was related to his "being in the room by himself too long and being suicidal." Bell declined to confront or cross-examine adverse witnesses, and he also declined to provide witness statements that were favorable to him.

The hearing officer relied upon statements and reports of those involved in the incident, a "video recording of event report," a confidential mental health report, and a confidential suicide watch notice. The hearing officer found that Bell committed prohibited acts *.012, .052, and *.306. The officer imposed the following sanctions: for the *.012 charge, ten days' detention with credit for time served, 180 days' administrative segregation, and 180 days' loss of commutation time; for the .052 charge, ten days' detention with credit for time served, ninety days' administrative segregation, and sixty days' loss of commutation time; for the *.306 charge, ten days' detention with credit for time served, 210 days' administrative segregation, and 210 days' loss of commutation time. The administrative officer also directed that the sanctions run consecutively.

Bell filed an administrative appeal, alleging that he had been detained in the dry cell for more than seventy-two hours in violation of applicable standards, and that the sanction was excessive considering his mental health problems. Bell also requested leniency. Bell explained that he had been taken off medication, which caused his behavior. Finding no violations of any standards, and rejecting Bell's other arguments, an associate administrator who considered Bell's appeal denied it. Bell then filed this appeal.

On appeal, Bell argues that he "testified at the hearing and requested his right to confrontation, cross examination, and a polygraph to bolster his credibility, but was denied." He claims the hearing officer made no finding concerning his credibility, but instead "resolved the credibility dispute solely on the assumption that corrections officers have no reason to fabricate allegations against inmates."

Bell further contends that the *.306 charge rests on nothing more "than the routine steps corrections officers take when an inmate is placed in pre-hearing detention, which the officer in charge indicated were accomplished without incident." As to the *.012 charge, Bell contends that he was improperly deprived of access to a toilet and running water, and "[t]here is not a singular report that remotely suggests that [he] ever attempted to throw any wastes or fluids at anyone or subjected anyone who was not already assigned the duty of checking his waste of the dry cell purpose."

Our review of an administrative agency's decision is limited. In re Taylor, 158 N.J. 644, 656 (1999). We must determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record considering the proofs as a whole." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotation marks omitted). This standard applies to disciplinary hearings for prisoners. N.J.A.C. 10A:4-9.15(a) provides that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." Because the scope of our review is limited, we will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).

Moreover, prison discipline is not part of a criminal prosecution; consequently, the full spectrum of rights due to a defendant in a criminal proceeding does not apply. Avant v. Clifford, 67 N.J. 496, 522 (1975). The DOC must "structure an informal hearing to assure that the disciplinary finding . . . will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the . . . inmate's behavior." McDonald v. Pinchak, 139 N.J. 188, 195 (1995) (alterations in original) (internal quotation marks omitted). Our Supreme Court has recognized that the DOC's regulations for disciplinary hearings "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due process rights of the inmates." Id. at 202.

Having considered Bell's arguments in light of the record and our standard of review, we conclude that his arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Bell's central contention is that the hearing officer did not properly assess his credibility, but instead presumed the DOC's evidence was credible. Contrary to that argument, the record establishes Bell did not testify. Instead, his counsel substitute argued Bell had no memory of the events that resulted in the disciplinary charges. Further, the hearing record establishes Bell was given the opportunity to confront or cross-examine adverse witnesses, and he was also given the opportunity to provide witness statements favorable to him. Neither Bell nor his counsel substitute has filed a certification contradicting the hearing record. For that reason, and because the hearing officer's factual determinations are supported by sufficient credible evidence present in the record, we reject Bell's arguments.

Affirmed.

1 The record does not include the first name of Assistant Superintendent Gentilini.