OSHEA CLARKE 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NOT FOR PUBLICATION WITHOUT THE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-1029-18T3

OSHEA CLARKE,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                    Submitted November 7, 2019 – Decided December 16, 2019

                    Before Judges Nugent and DeAlmeida.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Oshea Clarke, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Kimberly Gail Williams, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Oshea Clarke, an inmate at Northern State Prison (NSP), appeals from the

October 17, 2018 final determination of the Department of Corrections (DOC)

adjudicating him guilty of a disciplinary infraction, fighting with another person.

N.J.A.C. 10A:4-4.1(a)(2)(i) *.004. We reverse and remand.

                                        I.

      The following facts are derived from the record. On September 23, 2018,

Corrections Officer Rosario reported he saw Clarke and inmate Porter

"fighting[,] exchanging close blows" in a housing unit. As a result of Rosario's

report, Clarke was charged with violating N.J.A.C. 10A:4-4.1(a)(2)(i) *.004.

      Prior to the start of a disciplinary hearing, Clarke was assigned the

assistance of counsel substitute. The hearing officer adjourned the hearing

several times to obtain additional information about the alleged infraction. An

investigating Sergeant obtained statements from six inmate witnesses named by

Clarke, a clarifying statement from Rosario, and a copy of a surveillance video

recording. In addition, the hearing officer granted Clarke's request for written

cross-examination of Rosario.

      In a written statement expanding on his initial report, Rosario stated he

saw Clarke and Porter exchanging close blows by the hot water machine.

According to Rosario, after the fight, Clarke "ran to the cage area and inmate


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[P]orter went towards the cage area." Rosario continued, "[a]t this point[,] I

gave inmate Porter a direct order to stop and he complied."

      Rosario's responses to Clarke's written cross-examination questions were

consistent with the officer's two written reports. In the answers, Rosario stated

Clarke initiated the confrontation with Porter, did not try to avoid a physical

altercation, and did not do "all he could to flee from the altercation." Rosario

did not recall if Porter had anything in his hand during the fight.

      Clarke submitted a request to the Administrator of NSP to undergo a

polygraph examination pursuant to N.J.A.C. 10A:3-7.1(a)(1). In his request,

Clarke denied engaging in any physical confrontation with Porter. He stated he

saw Porter approaching him with a sock containing a heavy object in one hand

and a cup containing a liquid in the other hand. According to Clarke, he realized

Porter was about to assault him, and ran to the cage area of the housing unit to

escape.1 Clarke argued he was entitled to a polygraph examination because

Rosario's reported version of the incident directly contradicted Clarke's version.

The Administrator denied Clarke's request, concluding the hearing officer would

address credibility at the hearing.



1
  According to Clarke, it is common for an inmate to throw liquid in the face of
another inmate prior to hitting that inmate with a sock containing a heavy object.
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       DOC produced a video surveillance recording of the cage area of the

housing unit. The recording shows Clarke running to a large cage in the housing

unit from the area of the hot water machine. Clarke stops at the entrance to the

cage, looking in the direction from which he came. Shortly thereafter, Porter

runs into the frame, carrying what appears to be a sock containing a heavy

object. As he rushes toward Clarke, Clarke backs away farther into the cage

away from Porter. Porter, in an apparent agitated state, retreats, but paces

around the area, appearing to shout in Clarke's direction. Corrections officers

then enter, at which time Clarke and Porter assume prone positions on the floor. 2

       Having reviewed the video, Clarke requested additional video recordings

from two other "angles" in the housing unit. According to Clarke, although the

recording from the cage area supported his version of events, he sought

production of the recordings from two other video cameras in the unit, which he

believed would show when he first encountered Porter. The hearing officer

requested the additional recordings, but was informed the recording from the

cage area was the "only available angle" of the incident.

       At the hearing, the hearing officer reviewed Rosario's written statements

and cross-examination answers, and a written statement from Clarke denying a


2
    At our direction, DOC submitted a copy of the recording for our review.
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physical confrontation with Porter. In addition, the hearing officer viewed the

video recording from the cage area.        She noted her acceptance of DOC's

representation the recording was the only available angle of the incident.

      The hearing officer also considered written statements from six inmate

witnesses. Porter denied he and Clarke engaged in a physical confrontation.

Inmate Ansuman stated while he was in his cell, he "all of a sudden" saw Clarke

running and told him to come to his cell. Ansuman stated Clarke and Porter did

not fight and Rosario "had his head down" and could not see what transpired

between the inmates. Inmate Jackman stated he saw Clarke "backing up from

the hot water machine with his hands in the air" and that no fight took place.

Inmate Burton reported seeing "a few guys . . . having a disagreement" but that

"nobody threw a punch." Inmate Bridges stated he was in the doorway of his

cell when "suddenly some guy in the cell next to mine started getting loud, which

caused Clarke and a couple others to back away and even flee out of the day

space." Finally, inmate Leonard stated he "saw Clarke at the water and others

move because something was coming our way."

      The hearing officer adjudicated Clarke guilty of the offense. She found

Clarke offered no evidence to contradict Rosario's reports. The hearing officer

found the statements of the inmate witnesses provided no credible evidence


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exonerating Clarke.     In addition, the hearing officer noted, based on her

knowledge of prison subculture, it was possible during the several adjournments

of the hearing Clarke communicated with the inmate witnesses to obtain

favorable statements, "negating the value of those statements."

      Finally, the hearing officer found the video recording from the cage area

provided no evidence contradicting Rosario's reports because the area in which

the confrontation took place is outside the view of the camera. The hearing

officer found Clarke's flight from Porter is not substantial evidence the two

inmates did not engage in a fight, as Clarke could have fled after striking Porter.

      The hearing officer sanctioned Clarke to: (1) ninety-one days in

administrative segregation; (2) a thirty-day loss of recreation privileges; and (3)

a ninety-one-day loss of commutation credits. The hearing officer determined

the sanctions were appropriate considering Clarke's prior disciplinary history

and necessary to deter fighting at the institution.

      Clarke appealed the adjudication to the NSP Administrator. On October

17, 2018, a designee of the Administrator upheld the adjudication and sanctions.

      This appeal followed. Clarke makes the following arguments:

            POINT ONE

            THE DISCIPLINARY HEARING OFFICER'S (DHO)
            GUILTY FINDING AND THE ADMINISTRATOR'S

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            DECISION TO UPH[O]LD HER FINDING OF THE
            *004   INFRACTION    WAS     ARBITRARY,
            CAPRICIOUS, AND UNREASONA[BL]E.

            A. THE DISCIPLINARY HEARING OFFICER'S
            GUILTY FINDING WAS NOT BASED ON
            SUBSTANTIAL EVIDENCE IN THE RECORD.

            B. THE HEARING OFFICER ERRONEOUSLY
            PLACED THE BURDEN OF PROOF ON THE
            APPELLANT TO PROVE THAT HE DID NOT
            COMMIT THE ALLEGED PROHIBITED ACT.

            POINT TWO

            THE DENIAL OF APPELLANT'S REQUEST FOR
            COMPLETE VIDEO FOOTAGE DENIED HIM HIS
            RIGHT TO DUE PROCESS.

            POINT THREE

            THE DENIAL OF THE APPELLANT'S REQUEST
            FOR A POLYGRAPH EXAMINATION WAS
            ERRONEOUS AND DENIED HIM HIS RIGHT TO
            DUE PROCESS.

                                      II.

      Our review of a final agency decision is limited. Figueroa v. N.J. Dep't

of Corr.,  414 N.J. Super. 186, 190 (App. Div. 2010). Reversal is appropriate

only when the agency's decision is arbitrary, capricious, or unreasonable, or

unsupported by substantial credible evidence in the record as a whole. Henry v.

Rahway State Prison,  81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J.


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644, 657 (1999) (holding that a court must uphold an agency's findings, even if

it would have reached a different result, so long as sufficient credible evidence

in the record supports the agency's conclusions). "[A]lthough the determination

of an administrative agency is entitled to deference, our appellate obligation

requires more than a perfunctory review." Figueroa,  414 N.J. Super. at 191

(quoting Blackwell v. Dep't of Corr.,  348 N.J. Super. 117, 123 (App. Div.

2002)). We engage in a "careful and principled consideration of the agency

record and findings" relating to inmate disciplinary adjudications. Williams v.

Dep't of Corr.,  330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower

Sec. Co. v. Bureau of Sec.,  64 N.J. 85, 93 (1973)).

      In a disciplinary proceeding, an inmate is not accorded the full panoply of

rights afforded a defendant in a criminal prosecution. Avant v. Clifford,  67 N.J.
 496, 522 (1975). Prisoners are entitled to: written notice of the charges at least

twenty-four hours prior to the hearing; an impartial tribunal; a limited right to

call witnesses and present evidence; a limited right to confront and cross-

examine adverse witnesses; a right to a written statement of the evidence relied

upon and the reasons for any sanctions; and, where the charges are complex, the

assistance of a counsel substitute. Id. at 525-33; accord Jacobs v. Stephens,  139 N.J. 212 (1995); McDonald v. Pinchak,  139 N.J. 188 (1995).


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      An inmate does not have the right in all instances to a polygraph

examination to contest a disciplinary charge. Johnson v. N.J. Dep't of Corr.,  298 N.J. Super. 79, 83 (App. Div. 1997). Instead, an inmate's request for a polygraph

examination will be granted: (1) when there are issues of credibility regarding

serious incidents or allegations which may result in a disciplinary charge; or (2)

as part of a reinvestigation of a disciplinary charge when new evidence indicates

serious issues of credibility. N.J.A.C. 10A:3-7.1(a). "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). To the contrary, N.J.A.C. 10A:3-7.1(c) "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." Ramirez v. Dep't of Corr.,  382 N.J. Super. 18, 23-24 (App. Div. 2005).

      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. "[A]n inmate's right to a

polygraph is conditional and the request 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." Id. at 20.

            Impairment [of fundamental fairness] may be
            evidenced by inconsistencies in the [corrections

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            officers'] statements or some other extrinsic evidence
            involving credibility, whether documentary or
            testimonial, such as a statement by another inmate or
            staff member on the inmate's behalf. Conversely,
            fundamental fairness will not be [a]ffected when there
            is sufficient corroborating evidence presented to negate
            any serious question of credibility.

            [Id. at 24.]

      In our view, there were serious questions of credibility before the hearing

officer. The disciplinary charge against Clarke was based on the report of a

single corrections officer.   Clarke, Porter, and two other inmates provided

statements directly contradicting the officer's report. 3 Significantly, the only

available video recording of the event can be interpreted to corroborate the

accounts of Clarke and the inmate witnesses. In these circumstances, it was

arbitrary to deny Clarke's request for a polygraph examination. In light of our

decision, we do not address Clarke's remaining arguments.

      Reversed and remanded for a new hearing after administration of a

polygraph examination to Clarke. We do not retain jurisdiction.




3
  Three other inmate statements did not directly contradict Rosario's reports.
Inmate Ansuman was in his cell when he saw Clarke arrive at the cage area.
Inmate Bridges purportedly saw Clarke flee from a loud inmate in an adjoining
cell. Inmate Leonard saw Clarke and others move from the area of the hot water
machine because "something" was coming their way.
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