RASULJENKINS, a/k/a RASOOL JACOBS, RASUL JACOBS, RASOOL JENKINS, MONEY BAGS, and ROY SIMMINS v. NEW JERSEY DEPARTMENT OF CORRECTIONS
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5186-15T
2
RASUL.J.NKINS, a/k/a RASOOL
JACOBS, RASUL JACOBS, RASOOL
JENKINS, MONEY BAGS, and
ROY SIMMINS,
Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Respondent.
________________________________
Submitted December 18, 2017 – Decided March 2, 2018
Before Judges Accurso and Vernoia.
On appeal from the New Jersey Department of
Corrections.
Rasul Jenkins, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Melissa Dutton
Schaffer, Assistant Attorney General, of
counsel; Erica R. Heyer, Deputy Attorney
General, on the brief).
PER CURIAM
Rasul Jenkins appeals from the New Jersey Department of
Corrections's (DOC) final agency decision finding him guilty of
committing four prohibited acts while an inmate at East Jersey
State Prison. We affirm.
I.
Jenkins is serving a sentence for carjacking, robbery and
violating parole. On May 2, 2016, Jenkins was served with
disciplinary charges alleging he committed the following
prohibited acts: *.002, assaulting any person; *.256, refusing
to obey an order of any staff member; *005, threatening another
with bodily harm or with any offense against his or her person or
property; and *.306, conduct that disrupts or interferes with the
security or orderly running of the correctional facility.1 See
N.J.A.C. 10A:4-4.1(a). The *.005 charge was amended to allege
prohibited act *.304, using abusive or obscene language toward a
staff member. See N.J.A.C. 10A:4-4.1(a). Jenkins pleaded not
guilty to the charges, and his request for a counsel substitute
was granted.
1
In his brief, Jenkins claims he was also charged with prohibited
act *.402, being in an unauthorized area. See N.J.A.C. 10A:4-
4.1(a). There is no evidence in the record supporting Jenkins's
assertion. In any event, we limit our discussion to the charges
for which defendant was found guilty.
2 A-5186-15T2
Prior to the hearing on the charges, Jenkins requested a
polygraph examination. The prison Administrator denied the
request, finding that any credibility determinations related to
the charges could be "addressed through staff confrontation at the
time of the hearing . . . ." Jenkins also requested confrontation
with six prison staff members: Officers Solomon, Tagliareni,
Ramirez and Tyminski, and Sergeants Soto and Hamlet.
The DOC's evidence at the hearing showed that on April 28,
2016, Tagliareni gave Jenkins three orders to leave the kiosk room
and return to his cell. Jenkins disobeyed the orders, told the
officer, "get out of my way," and then threatened him. Tagliareni
requested assistance from a sergeant and two other officers, who
escorted Jenkins from the area. As a result of Jenkins's refusal
to obey Tagliareni's orders and the concomitant involvement of the
assisting officers, distribution of medication to other inmates
in the kiosk room was delayed for approximately fifteen minutes.
The DOC's evidence further showed that while Jenkins was
escorted from the area, he was combative, refused multiple orders
to stop resisting, and bit Solomon on the right arm. Medical
staff subsequently examined Solomon, observed a red bite mark on
his right arm and photographed it.
Jenkins presented two written statements in his defense. He
asserted he was never in an unauthorized area and did not disobey
3 A-5186-15T2
any orders. He claimed the officers acted against him in
retaliation for his prior filing of numerous administrative
complaints against three corrections officers, including Ramirez.
He asserted he was not combative and that, because the officers
had placed him in handcuffs while escorting him from his cell
area, it was not physically possible for him to bite Solomon.
At Jenkins's request, the DOC obtained statements from three
other inmates. Two of the inmates' statements did not disclose
any information related to the alleged offenses. The third
inmate's statement supported Jenkins's version of the events. The
inmate stated that Jenkins asked Tagliareni2 if he could use the
kiosk and, in response, Tagliareni told Jenkins to return to his
cell. The inmate explained that Tagliareni "got mad" because
Jenkins, who was using crutches at the time due to an injury,
"wasn't moving fast enough." The inmate said Tagliareni called
for other officers who arrived and "roughed up [Jenkins] a little
bit, even though[] [Jenkins] wasn't resisting." The inmate offered
no information concerning what occurred after Jenkins was escorted
from his cell.
In advance of the hearing, Jenkins submitted separate sets
of written questions for the hearing officer (HO) to ask the six
2
The inmate referred to the officer as "Tag."
4 A-5186-15T2
officers for whom he requested confrontation and cross-
examination. During the hearing, the confrontation and cross-
examination of Officers Tyminski and Tagliareni proceeded without
incident. Jenkins's confrontation and cross-examination of the
remaining officers, however, did not occur.
In a report filed by the HO, she explained Jenkins challenged
her decision not to ask certain questions he requested she pose
to the officers. The HO reported that Jenkins failed to permit
her to explain why his request to pose certain questions was
denied, and he would not permit her to provide instructions for
recasting the questions so they would be proper. According to the
HO, Jenkins's continuing challenge to her authority to disallow
questions, N.J.A.C. 10A:4-9.13(c) and -9.14(d), prevented her from
asking the other questions requested by Jenkins that she deemed
proper. Jenkins also "continually challenged the validity of the
rules and regulations regarding confrontation." The HO asked
Jenkins to modify his behavior to permit the confrontation and
cross-examination of the witnesses, but Jenkins did not relent.
He "refused to alter his behavior and continued to behave in a
manner that" prevented any attempt at the confrontation and cross-
examination to which he was otherwise entitled.
5 A-5186-15T2
In separate written decisions, the HO indicated that she
considered the evidence submitted by the DOC and Jenkins,3 found
Jenkins guilty of the charges, and imposed sanctions, including
administration segregation, loss of recreation and telephone
privileges and commutation time. Jenkins filed an administrative
appeal. On July 8, 2016, the DOC issued its final agency decision
upholding the HO's decision. This appeal followed.
On appeal, Jenkins presents the following arguments:
Point I
THE DECISION OF THE HEARING OFFICER VIOLATES
DUE PROCESS AND THEREFORE, SHOULD BE VACATED.
(a) The Determination of the Departmental
Agency Should be Reversed Because it was not
Based Upon Substantial Credible Evidence and
is Unreasonable.
(b) The Proceedings Violate Due Process and
Therefore Should be Reversed Because the [HO]
Suspended Appellant's Request for Cross-
Examination Confrontation Without Legitimate
Cause.
(c) The Failure of the Department to Produce
the Video Recording of the East Jersey State
Prison Tie-Two Area, Violated Due Process.
3
Because the record shows the HO considered Jenkins's statements
and the statements of his witnesses, we infer from the HO's finding
that Jenkins did not submit evidence contradicting the officers'
versions of the events that Jenkins did not provide credible
evidence contradicting the officers' versions. See State v.
Locurto,
157 N.J. 463, 472-475 (1999) (finding it is unnecessary
for a trial court to make express findings as to the basis for its
credibility determinations).
6 A-5186-15T2
(d) The Administrator's Denial of Appellant's
Request for a Polygraph Examination, Under the
Circumstances, Violated Appellant's Rights.
(e) The Hearing Officer was Biased and Merely
Cataloged the Evidence, Failing to Give
Appellant's Position Fair Consideration or
Analysis.
II.
Our standard of review of agency determinations is limited.
See In re Stallworth,
208 N.J. 182, 194 (2011); Brady v. Bd. of
Review,
152 N.J. 197, 210 (1997); Figueroa v. N.J. Dep't of Corr.,
414 N.J. Super. 186, 190 (App. Div. 2010). We will not reverse
the decision of an administrative agency unless it is "arbitrary,
capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." Stallworth,
208 N.J.
at 194 (2011) (citation omitted); accord 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 v. Dep't of Corr.,
330 N.J. Super. 197, 204 (App. Div. 2000).
"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,
(1974)). An inmate's more limited procedural rights, initially
7 A-5186-15T2
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. The 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,
330 N.J. Super. at 203 (citing McDonald v. Pinchak,
139 N.J. 188, 202 (1995)).
We first address Jenkins's contention that his due process
rights were violated because the HO deprived him of confrontation
with, and cross-examination of, four witnesses. Where an inmate's
disciplinary "matter turns on the credibility of the officer[s]
or the inmate, the inmate, upon request, is entitled to
confrontation and cross-examination of the officer, at least, in
the absence of any reasons that justify an exception . . . ."
Decker v. N.J. Dep't of Corr.,
331 N.J. Super. 353, 359 (App. Div.
2000). An "opportunity for confrontation and cross-examination
of the accuser(s) [or] . . . witnesses, if requested shall be
provided to the inmate or counsel substitute in such instances
where the . . . [h]earing [o]fficer . . . deems it necessary . . .,
particularly when serious issues of credibility are involved."
N.J.A.C. 10A:4-9.1(a); see also Avant,
67 N.J. at 529-30.
A hearing officer "has the discretion to keep the disciplinary
hearing within reasonable limits," N.J.A.C. 10A:4-9.13, and may
8 A-5186-15T2
refuse confrontation and cross-examination under various
circumstances, N.J.A.C. 10A:4-9.14(b). An inmate has only a
limited right to confront and cross-examine witnesses at a
disciplinary hearing. Avant,
67 N.J. at 529-30; see also McDonald,
139 N.J. at 194 (finding inmate's due process right to call
witnesses and present evidence may be "abridged to the extent
necessary to accommodate the institutional needs and objectives
of prisons"); Johnson v. N.J. Dept. of Corrections,
298 N.J. Super.
79, 83 (1997) (explaining that an inmate is entitled to call
witnesses at a disciplinary hearing "unless the [DOC] specifies
some justifiable reason for refusing to permit the testimony").
Where a hearing officer denies a request by an inmate or
counsel substitute to call or cross-examine a witness, "the reasons
for the denial shall be specifically set forth" on a designated
disciplinary report form. N.J.A.C. 10A:4-9.14(f). The required
records provide "prima facie evidence which will enable reviewing
authorities . . . and if, necessary, the courts, to determine
whether or not there has been a proper exercise of discretion."
Avant,
67 N.J. at 532.
Jenkins argues the HO violated his due process rights by
depriving him of confrontation and cross-examination of Officers
Ramirez and Solomon and Sergeants Soto and Hamlet. He contends
the HO refused to permit him to confront and cross-examine the
9 A-5186-15T2
witnesses after he questioned her markings on the written questions
he submitted. He claims that after making the inquiry, the HO
became "angry [and] verbally abusive" and terminated the
proceedings.
The HO prepared a written report, N.J.A.C. 10A:4-9.14(f),
explaining the reasons she denied Jenkins's request to confront
and cross-examine the four witnesses. The report shows that denial
of the requested confrontation was based solely on Jenkins's
disruptive conduct. Jenkins prevented the HO from explaining her
reasons for disallowing some of his questions, rejected her efforts
to assist him in recasting the questions, and prevented her from
asking the questions she deemed proper. Jenkins continually
challenged the rules concerning confrontation and consistently
ignored the HO's requests to modify his behavior to allow
confrontation and cross-examination of the witnesses. It was
Jenkins's conduct, and not the HO's decision, that prevented the
confrontation and cross-examination to which he was otherwise
entitled.
Jenkins was not deprived of his right to confrontation and
cross-examination. To the contrary, he was afforded the right,
but chose to become so disruptive that his behavior did not permit
the confrontation and cross-examination he now contends he was
wrongfully denied. We find no abuse of discretion in the HO's
10 A-5186-15T2
denial of confrontation and cross-examination based on the
circumstances presented. See State v. Budis,
125 N.J. 519, 532
(1991) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986),
for the proposition that a trial court may limit cross-examination
based on concerns about harassment and witness safety).
We also find no merit in Jenkins's assertion that his due
process rights were violated because the DOC failed to provide a
video recording of the "Tie-Two Area" of the prison. The DOC
represented there is no video recording equipment covering the
area, and Jenkins presented no evidence to the contrary. The DOC
did not deny Jenkins's rights by failing to provide a video
recording that does not exist.
Jenkins next argues he was denied due process because the DOC
rejected his request for a polygraph test. N.J.A.C. 10A:3-7.1(b)
provides that the Administrator of a prison may request a polygraph
test for "use[] to assist in an investigation when appropriate."
The "regulation's principal impetus is as an investigative tool
of the administrator when serious disciplinary infractions are
alleged against an inmate as opposed to an affirmative right
granted to the inmate himself." Ramirez v. Dep't of Corr.,
382 N.J. Super. 18, 23 (App. Div. 2005).
Jenkins "does not have a right to a polygraph test," Johnson,
298 N.J. Super. at 83, and "[a]n inmate's request for a polygraph
11 A-5186-15T2
examination shall not be sufficient cause for granting the
request," N.J.A.C. 10A:3-7.1(c). "This administrative code
section 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."
Ibid. Thus, "a prison 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.
An inmate's request for a polygraph must be granted only if
denial "would impair the fundamental fairness of the disciplinary
process." Id. at 23-24. Here, Jenkins provided two detailed
statements on his own behalf and provided the statements of
witnesses he contended supported his version of events. He was
afforded the opportunity for confrontation and cross-examination
of the officers who provided statements supporting the charges.
Moreover, there was corroborating evidence, in the form of a
photograph, showing the injury to Solomon's arm. See id. at 25
(finding that "a polygraph examination is not required when
corroborating evidence . . . exist[s]"). We discern no basis to
conclude that "denial of [Jenkins's] request for a polygraph
negated the fundamental fairness of the disciplinary proceeding
12 A-5186-15T2
which would compel the granting of his request for a polygraph."
Id. at 26.
We last address Jenkins's contention the DOC's decision is
not supported by substantial credible evidence. There must be
"substantial evidence" to sustain a finding of guilt of a prisoner
at a disciplinary hearing. Jacobs v. Stephens,
139 N.J. 212, 222
(1995); Avant,
67 N.J. at 530; N.J.A.C. 10A:4-9.15(a).
"'Substantial evidence' means 'such evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Figueroa,
414 N.J. Super. at 192. "Where there is substantial evidence in the
record to support more than one regulatory conclusion, 'it is the
agency's choice which governs.'" In re Vineland Chem. Co.,
243 N.J. Super. 285, 307 (App. Div. 1990) (quoting De Vitis v. N.J.
Racing Comm'n,
202 N.J. Super. 484, 491 (App. Div. 1985)).
Jenkins's arguments concerning the purported lack of evidence
are based on his claims the DOC did not accept his version of the
events and failed to weigh the evidence in his favor. It is not
our function to determine the credibility of witnesses or weigh
the evidence once that function has been completed by the agency.
Close v. Kordulak Bros.,
44 N.J. 589, 599 (1965). Having carefully
reviewed the record, including the officers' reports, Jenkins's
statements, and the statements of his witnesses, we are satisfied
13 A-5186-15T2
there is substantial evidence supporting the DOC's determination
of guilt on each of the charges.
Affirmed.
14 A-5186-15T2
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