WARREN GROOMES v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0909-18T3

WARREN GROOMES,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
_____________________________

                    Submitted October 2, 2019 – Decided October 16, 2019

                    Before Judges Hoffman and Firko.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Warren Groomes, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Nicholas A. Sullivan, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Warren Groomes, 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 *.005, threatening a corrections officer with bodily

harm, in violation of N.J.A.C. 10A:4-4.1(a).1 We affirm.

      On September 17, 2018, while confined at Bayside State Prison, Groomes

attempted to submit a business remit at the prison cottage. The on-duty senior

corrections officer, P. Malmgren, reported that Groomes became angry and,

when told to "wait a minute" and to "calm down[,]" he responded by telling

Malmgren, "You better take this remit or you are gonna get fucked up." The

Department charged Groomes with prohibited act *.005, threatening another

with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a).

      At his initial disciplinary hearing on September 19, 2018, before Hearing

Officer DiBenedetto, Groomes pled not guilty to the charge, arguing that

because he is deaf, he could not understand what Malmgren said to him at the

time. The hearing was adjourned when Groomes was granted counsel substitute.




1
  "Prohibited acts preceded by an asterisk (*) are considered the most serious
and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).
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      The hearing recommenced on September 21, 2018, in front of a different

Hearing Officer, Ralph, who found Groomes guilty of committing prohibited act

*.005. The hearing officer noted, "Reports indicate that a threat was clearly

made towards the officer. This behavior will not be tolerated. The decision of

the Hearing Officer was based upon substantial evidence. No leniency will be

afforded to you."

      The hearing officer imposed the following sanctions: ninety-one days of

administrative segregation, the loss of sixty days of computation credits, and the

loss of fifteen days of recreational privileges.

      On September 21, 2018, Groomes filed an administrative appeal. On

September 26, 2018, A. Lewis, the Assistant Superintendent of New Jersey State

Prison (NJSP), issued a final decision, upholding the hearing officer's decision

and sanctions imposed. Groomes's appeal to this court followed.

      On appeal, Groomes argues that his right to due process was violated

because: (1) he was denied the right to testify on his own behalf and to call

witnesses; (2) there was a lack of substantial evidence to support the disciplinary

decision; (3) Hearing Officer Ralph assumed responsibility for the matter when

Hearing Officer DiBenedetto was unavailable; and (4) his counsel substitute




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provided ineffective assistance because he failed to advise Groomes of his right

to request a polygraph examination.

      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 Serv. 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, 220-22

(1995).

      Here, there is substantial evidence to support the Department's

determination that Groomes committed prohibited act *.005. Documentation

signed by Groomes's counsel substitute indicates that no witnesses were named

for Groomes's defense and he waived the opportunity to confront and cross-

examine adverse witnesses.


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      Groomes also argues there was a lack of substantial evidence to support

the disciplinary action but the signed adjudication documentation lists six items

of evidence considered in rendering the decision. Moreover, the Assistant

Superintendent's final decision indicates that she considered the reports before

upholding the hearing officer's decision. The Department therefore followed the

procedural requirements for disciplinary sanctions to be imposed. See Ramirez

v. Dep't of Corr.,  382 N.J. Super. 18, 26-27 (App. Div. 2005).

      Groomes further argues his right to due process was violated because

Hearing Officer Ralph assumed responsibility for the matter when Hearing

Officer DiBenedetto was not available, but allegedly failed to begin the

proceedings anew. In support of this argument, Groomes relies upon Ratti v.

Dep't of Corr.,  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. Groomes's reliance upon Ratti is misplaced.

      In this case, the record shows the disciplinary hearing began on September

19, 2018, but the hearing was adjourned because Groomes pled not guilty to the

charges and was assigned counsel substitute. Groomes indicated he understood


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his rights and consented to the adjournment of the hearing. The evidentiary

portion of the proceeding was heard on the adjourned date.

      Groomes further argues that his counsel substitute provided ineffective

assistance when he failed to advise him of his right to request a polygraph. 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)(1). 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,  382 N.J. Super. at 20.

      Here, the record does not show any inconsistencies in the testimony or

serious questions of credibility in the matter that could not be resolved in the

hearing process. In addition, Groomes waived the opportunity to cross-examine

Malmgren's credibility by failing to confront him or call defense witnesses.

      Absent any evidence to support Groomes's claims, it is highly unlikely

that a polygraph request would have been granted. Therefore, the absence of a

polygraph was inconsequential and not ineffective assistance of counsel

substitute.


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Affirmed.




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