NIGEL LATIMORE 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NOT FOR PUBLICATION WITHOUT THE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-1429-18T1

NIGEL LATIMORE,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

          Respondent.


                   Submitted October 22, 2019 – Decided October 29, 2019

                   Before Judges Accurso and Rose.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Nigel Latimore, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Jane C. Schuster, Assistant Attorney
                   General, of counsel; Nicholas A. Sullivan, Deputy
                   Attorney General, on the brief).

PER CURIAM
      Nigel Latimore, a State prison inmate, appeals a final disposition of the

Department of Corrections (DOC), which upheld two adjudications and

sanctions for attempting to obtain drugs, in violation of prohibited acts *.203

and *803. We reverse and remand for a rehearing.

      The charges stemmed from a correction officer's interception of two

envelopes in the incoming mail, both of which contained two strips of Suboxone,

a controlled narcotic opioid. The envelopes were addressed to Latimore and

included his inmate number. The senders listed on each envelope were different

women's names with addresses in Trenton. Latimore's cell was searched and he

was drug tested, with negative results.

      Latimore pled not guilty to the charges, and requested a polygraph

examination. A DOC administrator denied Latimore's request, noting "[t]he

hearing officer at his hearing c[ould] address any issues of credibility."

      Through his counsel substitute, Latimore submitted a written statement,

which denied the charges and claimed he did not know either sender. His

counsel substitute also presented confrontation questions to four DOC officers

involved in the incident, including a lieutenant.     Through his examination,

Latimore established the lack of nexus between him and the senders. For

example, the lieutenant acknowledged his investigation revealed the senders had

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not visited Latimore. He also stated the senders' names were fictitious and, as

such a nexus could not be confirmed. Other investigators acknowledged they

were unaware of any information suggesting Latimore "would be expecting mail

with [drugs] enclosed therein." It was also "possible" that "any wayward and

ill-intentioned inmate or free citizen could have accessed Mr. Latimore's

information and then mailed him the letters with Suboxone enclosed therein with

the objective of having him placed in Ad[ministrative][]Seg[regation] . . . ."

      In two separate handwritten decisions, 1 a hearing officer found Latimore

guilty of both counts of attempt to introduce drugs.       See N.J.A.C. 10A:4-

4.1(a)(1)(xiv) and (2)(xv). From what we can decipher, the hearing officer

summarized the evidence supporting her decision as follows:

            Inmate [illegible] he did not know who sent the cards.
            The cards were addressed to him. The staff who
            handled the mail were [sic] called in for confrontation.
            They answered all the questions w/o [sic] [illegible].
            The mail was addressed to Latimore w/ [sic] his
            [inmate] number and complete name on it. Based on
            reports and court ruling 2 this charge is upheld. . . .

1
   The decisions are written in cursive writing. Portions of the decision,
apparently pertaining to reasons for postponements, were written sideways in
the margins.
2
  Nearly forty documents were entered in evidence, including DOC reports,
Latimore's confrontation questions and answers, photographs of the evidence,
and our unreported decision in Maldonado v. N.J. Dep't of Corr., No. A-0010-


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Consequently, Latimore was sanctioned to permanent loss of contact visits, 365

days of urine monitoring, 125 days of administrative segregation, 125 days loss

of commutation time, and 15 days loss of telephone privileges.

      Latimore's administrative appeal was denied. The DOC, acting through

the assistant superintendent, upheld the hearing officer's decision. The final

determination stated, in full: "There was compliance with Title 10A provisions

on inmate discipline which prescribe procedural due process safeguard [sic].

The decision of the hearing officer was based on substantial evidence." This

appeal followed.

      On appeal petitioner raises the following points for our consideration:

            POINT ONE

            THE DISCIPLINARY HEARING OFFICER'S
            GUILTY          FINDINGS,      AND  THE
            ADMINISTRATOR'S DECISION TO UPHOLD THE
            [DOC]'S GUI[L]TY FINDINGS OF THE TWO
            *[.]803/*[.]203     INFRACTIONS,   WERE
            ARBITRARY,            CAPRICIOUS,   AND
            UNREASONABLE.

            A.  THE DISCIPLINARY HEARING OFFICER'S
            GUILTY FINDINGS WERE NOT BASED ON


15 (App. Div. Dec. 15, 2016). Some of the documents and photographs are
difficult to read. The second page of officer M.R.'s answers, purportedly
containing questions eleven through twenty-three, was omitted from both
parties' appendices on appeal.
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            SUBSTANTIAL CREDIBLE EVIDENCE IN THE
            RECORD.

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

            C.   THE [DOC]'S FAILURE TO INVESTIGATE
            THIS MATTER AND EXPLORE, AT THE VERY
            LEAST,   OTHER    POSSIBILITIES, DENIED
            [LATIMORE] HIS RIGHT TO DUE PROCESS AND
            A FAIR HEARING.

            POINT TWO

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

      At the outset, we acknowledge the limited scope of our review. Figueroa

v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 190 (App. Div. 2010). Generally,

the decision must not be disturbed on appeal unless it is arbitrary, capricious, or

unreasonable, or unsupported by substantial credible evidence.           Henry v.

Rahway State Prison,  81 N.J. 571, 579-80 (1980). Substantial evidence has been

defined as "such evidence as a reasonable mind might accept as adequate to

support a conclusion," or "evidence furnishing a reasonable basis for the

agency's action." Figueroa,  414 N.J. Super. at 192 (citation omitted); see also

N.J.A.C. 10A:4-9.15(a). Accordingly, "[d]isciplinary actions against inmates

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must be based on more than a subjective hunch, conjecture or surmise of the

factfinder." Figueroa,  414 N.J. Super. at 191.

      We have noted "[p]risons are dangerous places, and the courts must afford

appropriate deference and flexibility to administrators trying to manage this

volatile environment." Russo v. N.J. Dep't of Corr.,  324 N.J. Super. 576, 584

(App. Div. 1999). A reviewing court "may not substitute its own judgment for

the agency's, even though the court might have reached a different result." In re

Stallworth,  208 N.J. 182, 194 (2011) (citation omitted). But, our review is not

"perfunctory," nor is "our function . . . merely [to] rubberstamp an agency's

decision[.]" Figueroa,  414 N.J. Super. at 191. "[R]ather, our function is 'to

engage in a careful and principled consideration of the agency record and

findings.'" Ibid. (citation omitted).

      To enable us to exercise this function, however, the agency must provide

a reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corr.,

 322 N.J. Super. 56, 63 (App. Div. 1999). "No matter how great a deference we

must accord the administrative determination, we have no capacity to review the

issues at all unless there is some kind of reasonable factual record developed by

the administrative agency and the agency has stated its reasons with

particularity." Ibid. (internal quotation marks and citation omitted). "[W]e


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insist that the agency disclose its reasons for any decision, even those based

upon expertise, so that a proper, searching, and careful review by this court may

be undertaken." Balagun v. N.J. Dep't of Corr.,  361 N.J. Super. 199, 203 (App.

Div. 2003); see also N.J.A.C. 10A:4-9.15 (mandating that a hearing officer

specify, on an adjudication form, the evidence relied upon in making a finding

of guilt after a disciplinary hearing).

      Ordinarily, the hearing officer's partially illegible handwritten decision

might have hampered our review. See Johnson v. N.J. Dep't of Corr.,  298 N.J.

Super. 79 (App. Div. 1997) (recognizing "[t]he illegibility of the record would

be a sufficient reason for a remand"). But, most of the remainder of the record,

upon which she relied is legible, including the typewritten confrontation

questions and answers. Those responses acknowledged the DOC's inability to

establish a nexus between Latimore and the senders, whose names were

fictitious. Nor did the investigation reveal any information that Latimore was

expecting Suboxone in the mail.           Importantly, at least one investigator

acknowledged anyone could have accessed Latimore's "information."

      Notably, no witness for the DOC appeared at the hearing. Accordingly,

the hearing officer made no credibility findings. Instead, the hearing officer

relied on written statements and documents, none of which provided direct


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evidence that Latimore directed the drugs be sent to him. 3 Notably absent from

the record is the lieutenant's – or another officer's – investigation report. And,

the disciplinary reports simply state strips of suspected controlled dangerous

substances were found inside two envelopes that were addressed to Latimore.

Those documents do not provide substantial credible evidence that Latimore

attempted to bring drugs into the jail. See Figueroa,  414 N.J. Super. at 188

(recognizing that the Department bears the burden of persuasion to sustain a

charge of prohibited acts). In essence, although the existence of the drugs and

Latimore's full name and inmate number on the envelopes containing them gave

rise to suspicion that Latimore sought the drugs, that evidence fell short of

establishing Latimore's knowledge.

      At the very least, Latimore's written denial statement and the answers

elicited from his confrontation question created credibility issues, entitling him



3
  The hearing officer also relied on our unpublished decision in Maldonado, slip
op. at 4-5, which is not binding on us or "any court." R. 1:36-3. Because the
DOC was a party to that appeal, however, the DOC is bound by its holding. See
Raymond v. N.J. State Parole Bd.,  221 N.J. Super. 381, 384 n.1 (App. Div. 1987)
("While an unpublished opinion does not have stare decisis effect, it is
nevertheless binding as against a party, in particular a public party whose
conduct is thereby prescribed."). We simply note that the facts of Maldonado,
slip op. at 2-3, were inapposite to those of the present matter, e.g., the inmate in
Maldonado did not cross-examine witnesses.


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to a polygraph examination. See Ramirez v. Dep't of Corrections,  382 N.J.

Super. 18, 23-24 (App. Div. 2005) (recognizing a polygraph is not required

every time an inmate denies a disciplinary charge, but a "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"). The hearing officer never made a credibility finding concerning

Latimore's denial, despite the administrator's response to Latimore's request for

a polygraph that credibility issues would be resolved at the hearing.

      In light of the absence of any direct evidence, as acknowledged by the

officers, and because Latimore could not negate the inference of knowledge of

the forbidden items through any other means, fundamental fairness dictates that

he should have been permitted to take a polygraph. See Ramirez,  382 N.J.

Super. at 24. Under these particular circumstances, we remand for a polygraph

examination. Following the administration of the polygraph, the hearing officer

shall examine the evidence anew, and state with particularity – in a typewritten

document – the basis of her decision, including an assessment of Latimore's

credibility, so that we may entertain a proper review in the event of a further

appeal. Blyther,  322 N.J. Super. at 63.

      Reversed and remanded. We do not retain jurisdiction.


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