MICHAEL TUCKER v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MICHAEL TUCKER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

__________________________________________

February 3, 2017

Submitted January 10, 2017 Decided

Before Judges Yannotti and Gilson.

On appeal from the New Jersey Department of Corrections.

Michael Tucker, appellant pro se.

Christopher S. Porrino, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Nicole E. Adams, Deputy Attorney General, on the brief).

PER CURIAM

Michael Tucker, an inmate in the State's correctional system, appeals from a final determination of the New Jersey Department of Corrections (Department), which upheld a hearing officer's decision finding him guilty of committing prohibited act *.202, possession or introduction of a sharpened instrument, knife, unauthorized tool, or other weapon, in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

Tucker is incarcerated in New Jersey State Prison (NJSP). He is serving a life sentence for murder and other offenses. On June 15, 2015, at around 2:40 p.m., Senior Corrections Officer DeAngelis conducted a routine search of Tucker's cell. During the search DeAngelis found a dictionary. In the binding, the officer found a piece of broken broom, which had been sharpened to a point. The dictionary that concealed the sharpened instrument was located in a plastic container, which was labeled with Tucker's name and inmate number.

DeAngelis filed a disciplinary report, charging Tucker with committing prohibited act *.202, possession or introduction of a sharpened instrument, knife, unauthorized tool, or other weapon. The charge was investigated, found to have merit, and referred to a hearing officer for further action. Tucker pled not guilty, and his request for the assistance of counsel substitute was granted.

Though the hearing was scheduled for June 17, 2015, before hearing officer Zimmerman, it was postponed because Tucker requested a polygraph and Zimmerman was not available. Steven Johnson, the Administrator of NJSP, denied Tucker's polygraph request, finding that there were no issues of credibility or evidence warranting approval of the request.

The hearing was rescheduled for June 23, 2015, but hearing officer Zimmerman postponed the hearing again because Tucker had requested confrontation of DeAngelis. Thereafter, hearing officer Cortes assumed responsibility for the matter, and the hearing took place on June 30, 2015. According to the adjudication report, which was completed and signed by Cortes, the confrontation of DeAngelis was completed on that date.

In the report, Cortes noted that she had reviewed all of the evidence, including DeAngelis's disciplinary report, photocopies of the evidence, the polygraph request and its denial, and documents submitted by Tucker's counsel substitute. Cortes also noted that Tucker had been offered the opportunity to request witnesses to testify on his behalf, but he had declined.

In the report, Cortes noted that Tucker claimed the charge was "an act of retaliation" for his submission of a written complaint about DeAngelis. Cortes found Tucker guilty of the charge and made the following findings

Staff reports that upon search of [the] inmate[']s cell (#11), a plastic container labeled with [inmate] Tucker's name and number was found containing a dictionary. Inside the binding of the dictionary was a piece of broken broom, sharpened to a point . . . . Please note [that the] new DHO reviewed all evidence [and again showed] same to [the inmate] and [counsel substitute] on 6/30/15. In addition, [the] DHO [viewed the] evidence in question . . . . Inmate pled not guilty, claiming the weapon was placed in his property by the Officer to "set him up" as an act of retaliation due to claims/allegations the inmate has previously made against this Officer. The inmate requested [and] was granted confrontation with SCO DeAngelis, which was completed on 6/30/15 . . . . Please note[] there was no evidence produced during the confrontation to discredit the Officer[']s credibility or exonerate this inmate. Inmate did not provide any other evidence to discredit the Officer[']s report. As such, DHO supports [the] charge as written, noting that the weapon was found in [the] inmate[']s property (which inmate does not dispute being his a dictionary [and] a plastic container) [and] that the weapon was sharpened to a point [and] had a handle to protect the user. When used in an up and down motion, it has [the] potential to puncture the skin [and] seriously injure another person.

Cortes imposed the following sanction: 15 days of detention; the loss of 365 days of commutation time, and 365 days of administrative segregation. Regarding the sanctions, Cortes noted that weapons pose a serious threat to security and safety within the prison, which will not be tolerated. Thereafter, Tucker filed an administrative appeal of the hearing officer's decision. Administrator Johnson upheld the hearing officer's decision and the sanctions imposed. Tucker's appeal to this court followed.

On appeal, Tucker argues that his right to due process was violated: (1) when hearing officer Cortes allegedly failed to begin the proceedings anew after she replaced hearing officer Zimmerman; (2) by the hearing officer's refusal to consider his documentary evidence; (3) by the denial of his request for a polygraph; and (4) when the hearing officer rejected ninety percent of the proposed confrontation questions without notice.

The standard of review that applies in this appeal is well established. "In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cty. Welfare Bd. v. N.J. Civil Servs. Comm'n, 93 N.J. 384, 390 (1983)).

When reviewing a final decision of the Department in a prisoner disciplinary proceeding, we consider whether there is substantial evidence to support the agency's finding that the inmate has committed the prohibited act and whether, in making its decision, the Department complied with the regulations adopted to afford inmates procedural due process. McDonald v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-222 (1995).

Here, there is substantial evidence to support the Department's determination that Tucker committed prohibited act *.202. As we have explained, during the search of Tucker's cell, officer DeAngelis found the dictionary, in which a piece of a broom, sharpened to a point, had been placed. The dictionary was found in a container with Tucker's name and number. The hearing officer considered Tucker's claim that he had been charged in retaliation for complaints he made about the officer, but found no basis upon which to reject the testimony of the officer who found the sharpened instrument or his report.

Tucker argues, however, that his right to due process was violated because hearing officer Cortes assumed responsibility for the matter when hearing officer Zimmerman was not available, but allegedly failed to begin the proceedings anew. In support of this argument, Tucker relies upon Ratti v. N.J. Dep't of Corrs., 391 N.J. Super. 45 (App. Div. 2007).

In Ratti, we held "when the evidentiary phase of a hearing has begun but is adjourned for any reason, and the original hearing officer is unavailable on the date the hearing resumes, the evidentiary phase of the hearing must begin anew before the replacement hearing officer." Id. at 48. Tucker's reliance upon Ratti is misplaced.

In this case, the record shows that the disciplinary hearing began on June 17, 2015, with hearing officer Zimmerman, but the hearing was adjourned because Tucker had requested a polygraph. The hearing continued on June 23, 2015, but Zimmerman again adjourned the matter because Tucker had requested confrontation of officer DeAngelis.

When the hearing resumed on June 30, 2015, Zimmerman was not available and hearing officer Cortes assumed responsibility for the matter. Her report indicates that she effectively began the evidentiary phase of the hearing anew. Cortes noted on the adjudication form that she reviewed all of the evidence, allowed Tucker and his counsel substitute to make statements on the charges, and allowed Tucker to confront DeAngelis by submitting written questions.

Tucker also argues that Cortes improperly limited his confrontation of DeAngelis. When an inmate is allowed confrontation or cross-examination in a disciplinary proceeding, the inmate or counsel substitute is permitted to submit written questions to the hearing officer. N.J.A.C. 10A:4-9.14(c). The hearing officer is permitted to disallow questions that may be hazardous to the safety and security of the institution, are irrelevant, repetitive, harassing, malicious, or may reveal confidential information. N.J.A.C. 10A:4-9.14(b).

Here, the record shows that Cortes reviewed the written questions that Tucker or his counsel substitute had submitted. Cortes disallowed many of the questions, and specifically noted her reasons for doing so. The questions were disallowed as irrelevant, repetitive, security-related, hypothetical, and calling for responses that would be speculation.

The hearing officer's refusal to allow some of the questions was an appropriate exercise of her discretion under the regulation. Tucker asserts he should have been given advance notice that some of the questions would not be permitted. There is, however, no requirement that an inmate receive advance notice that confrontation questions have been disallowed. Moreover, in this matter, the hearing officer permitted Tucker to pose additional follow-up questions at the hearing.

Tucker further argues that his request for a polygraph was improperly denied. A prison administrator may grant a request for a polygraph if "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge[.]" N.J.A.C. 10A:3-7.1(a).

An inmate does not have a right to a polygraph in a disciplinary proceeding, but the inmate's request for a polygraph "should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corrs., 382 N.J. Super. 18, 20 (App. Div. 2005). Here, the Administrator properly found that there were no serious questions of credibility in the matter that could not be resolved in the hearing process.

In addition, Tucker contends the hearing officer failed to consider certain documentary evidence, such as staff reports, photographs of physical evidence, and confiscation forms. He further argues that he was denied the opportunity to have an expert analyze the sharpened instrument. These arguments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.