JUAN TURNER 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NOT FOR PUBLICATION WITHOUT THE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

JUAN TURNER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________

August 11, 2016

 

Submitted July 27, 2016 Decided

Before Judges Leone and O'Connor.

On appeal from the New Jersey Department of Corrections.

Juan Turner, appellant pro se.

Christopher S. Porrino, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

Inmate Juan Turner (appellant) appeals from an order by the New Jersey Department of Corrections (DOC) upholding an adjudication imposing disciplinary sanctions. We affirm.

I.

Appellant is serving a life sentence for murder and weapons offenses. On October 1, 2014, Sergeant Horne at the New Jersey State Prison ordered appellant to return to his cell and change into the regulation attire for the mess hall. Horne's October 1, 2014 report stated that appellant refused, accused Horne of making up rules, said "Fuck you, Horne," and said: "My people will take care of your ass, watch your back." As a result, appellant was charged with "threatening another with bodily harm or with any offense against his or her person or his or her property," N.J.A.C. 10A:4-4.1(a), Prohibited Act *.005.

On October 2, 2014, a prison investigator determined that the charge had merit, and appellant was served with notice of the disciplinary charge. Appellant pled not guilty and requested legal assistance. An inmate paralegal was appointed as appellant's counsel substitute pursuant to N.J.A.C. 10A:4-9.12(a).

A disciplinary hearing began on October 3, 2014. The hearing was postponed due to appellant's request for a polygraph examination, and to permit appellant to question Sergeant Horne. The hearing was delayed five more times for one or both of those reasons. On October 7, 2014, appellant's request for a polygraph was denied. On October 15, 2014, counsel substitute submitted questions for Horne. On October 17, 2014, counsel substitute submitted a statement for the record on behalf of appellant, arguing only that "there is insufficient evidence to support a finding of guilt[.]"

On October 21, 2014, the disciplinary hearing resumed. Sergeant Horne answered appellant's submitted questions while being confronted face-to-face by appellant. When asked to recall the exact threat made by appellant, Horne responded: "He was using his gang affiliation by stating that 'his boys are going to get [me]. Watch my back.'" At the request of appellant, the hearing officer noted that the threat Horne related at the hearing was different than what he had said in his report.

At the conclusion of the hearing, appellant was found guilty. Appellant was sanctioned with fifteen days in detention, 365 days' loss of commutation time, 365 days of administrative segregation, and 30 days' loss of recreation privileges.

On October 21, 2014, appellant filed an administrative appeal of the hearing officer's decision. In his letter brief, appellant asserted that because the hearing officer credited Sergeant Horne, his disciplinary hearing was "unfair and impartial and not based on sufficient or credible evidence." On October 30, 2014, appellant's administrative appeal was denied. The prison's assistant superintendent explained that "[t]he preponderance of evidence presented supports the decision of the Hearing Officer and the sanction rendered is appropriate." Appellant now appeals.

II.

"Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974)). The inmate's more limited procedural rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-9.1 to -9.28. Those regulations "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." Williams v. N.J. Dep't of Corr., 330 N.J. Super. 197, 203 (App. Div. 2000) (citing McDonald v. Pinchak, 139 N.J. 188, 196-99 (1995)).

The DOC regulations require that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Jacobs v. Stephens, 139 N.J. 212, 222 (1995); Avant, supra, 67 N.J. at 530. Similarly, an inmate may appeal whether the decision "was based upon substantial evidence." N.J.A.C. 10A:4-11.4(e)(2). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citation omitted).

"Our role in reviewing the decision of an administrative agency is limited." Id. at 190. "We defer to an agency decision and do not reverse unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). Nonetheless, we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams, supra, 330 N.J. Super. at 204 (citation omitted). We must hew to that standard of review.

III.

Appellant argues that the DOC adjudication was not based on substantial evidence. However, there was substantial evidence that appellant had threatened Sergeant Horne with bodily harm in violation of *005. That evidence included Horne's reports and his answers to appellant's submitted questions. Appellant's statement objectively conveyed a basis for fear, and this was thus a violation of *.005. See Jacobs, supra, 139 N.J. at 222.

The only argument appellant appears to have offered at the hearing focused on the differences between Sergeant Horne's initial recitation of the alleged threat in his report, and Horne's answer in response to appellant's submitted question. However, as noted by the hearing officer, the differences in wording are slight, the discrepancy can be explained by memory fading over time, and both statements constituted a threat in violation of *005. Because the DOC's decision was based on substantial evidence, it was not arbitrary, capricious or unreasonable.

IV.

Appellant next argues that the denial of his request for a polygraph examination compromised the fundamental fairness of the hearing. An inmate does not have an unqualified right to a polygraph test. See Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). "An inmate's request for a polygraph examination shall not be sufficient cause for granting the request." N.J.A.C. 10A:3-7.1(c). "[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). Thus, an "administrator's determination not to give a prisoner a polygraph examination is discretionary and may be reversed only when that determination is 'arbitrary, capricious or unreasonable.'" Id. at 24. A request for a polygraph is only granted where "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. This "may be evidenced by inconsistencies in the [witnesses'] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial[.]" Id. at 24.

Here, the slight discrepancy in wording did not amount to a real inconsistency in Sergeant Horne's statements. Appellant did not present any extrinsic evidence affecting Horne's credibility. Moreover, as the hearing officer noted, appellant failed to offer any evidence or witnesses refuting Horne's statements or offering an alternative version of the events. Thus, appellant did not create a "serious question of credibility." Further, the denial of a polygraph test did not compromise the fundamental fairness of his hearing. Appellant was allowed to submit questions to Horne, and had the opportunity to confront Horne's credibility.

V.

Appellant now raises due process claims for the first time. However, appellant did not raise those claims in his administrative appeal or at the hearing. "The obligation to exhaust 'administrative remedies before resort to the courts is a firmly embedded judicial principle.'" Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63, 69 (App. Div. 2009) (citation omitted). Moreover, this court generally "will decline to consider an issue not presented to the trial judge unless it goes to the jurisdiction of the court, or concerns a matter of substantial public interest." Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 293 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Moreover, even a brief review of the arguments reveals them to be lacking in merit.

Appellant for the first time argues that his "right to confrontation was violated when the hearing officer postponed his confrontation six times." However, the hearings were postponed twice to allow consideration of appellant's requests for a polygraph and for confrontation of Sergeant Horne, and thereafter to schedule the confrontation. The hearing officer noted appellant's confrontation questions were not received from appellant's counsel substitute until October 15, 2014, at which point the hearing had already been postponed four times. Thereafter, two additional postponements appear to have occurred in order to schedule appellant's confrontation of Horne. These are "reasonable postponements" in accordance with the provisions of N.J.A.C. 10A:4-9.8.

These postponements enabled appellant to confront Sergeant Horne face-to-face at the hearing. Cf. Jones v. Dep't of Corr., 359 N.J. Super. 70, 76 (2003), (inmate was denied face-to-face confrontation despite invoking his right to confront). Appellant did not show that the postponements degraded rather than assisted his attack on Horne's credibility.

Next, appellant contends that the hearing officer lost his handwritten statement requesting witnesses, which he claims he submitted at the October 3, 2014 hearing. However, the adjudication form does not indicate that appellant raised this claim. To the contrary, the record of the October 3 hearing indicates that appellant was asked if he wanted to request witnesses and he declined. When appellant appealed the hearing officer's decision, he failed to raise this seemingly significant purported procedural error. Thus, we also decline to consider his unsupported claim, see Hill, supra, 342 N.J. Super. at 293, or to consider the witness statement appellant presents to us.

Affirmed.