CHARLES SWEET 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NOT FOR PUBLICATION WITHOUT THE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-3273-17T4

CHARLES SWEET,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                    Submitted October 28, 2019 – Decided December 19, 2019

                    Before Judges Sabatino and Natali.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Charles Sweet, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Jane C. Schuster, Assistant Attorney
                    General, of counsel; Kevin John Dronson, Deputy
                    Attorney General, on the brief).

PER CURIAM
      Appellant Charles Sweet, an inmate confined at South Woods State Prison

in Bridgeton,1 appeals from an October 3, 2017 final administrative decision by

the New Jersey Department of Corrections (DOC) finding that he committed

prohibited acts *.708, "refusal to submit to a search," *.803/*.002, "attempting

to commit or aiding another person to commit any category A or B offense," in

this case, "assaulting any person," and *.202, "possession or introduction of a

weapon, such as . . . a sharpened instrument, knife, or unauthorized tool,"

contrary to N.J.A.C. 10A:4-4.1(a). Appellant was sanctioned to 365 days of

administrative segregation, 365 days loss of commutation credits, fifteen days

loss of recreation privileges, and confiscation of the weapon seized from his cell.

We affirm.

      According to incident reports, on September 11, 2017, Senior Corrections

Officers (SCO) Christopher Adones and Adam Higgins attempted to search

appellant's cell. Adones maintained that after being directed to exit his cell,

appellant became angry and stated "f--k you; you're not searching my room."

Adones further claimed that when he attempted to use his radio to request

appellant's cell be closed, appellant became aggressive and swung a closed fist



1
  At the time of the incident that led to the administrative charges, appellant
was incarcerated at Bayside State Prison (BSP) in Leesburg.
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at him. Adones maintained that in response, he "pushed [appellant] to the back

of the cell and struck him with a . . . closed fist." Appellant was forced to the

ground and handcuffed by Higgins and Adones.             SCO Felton Goodwin

completed the search of appellant's cell and found an eight-inch, sharpened

metal rod, or "shank," in a locked footlocker belonging to appellant.

      Appellant denied the charges and explained that they were filed in

retaliation for grievances and complaints he lodged against a number of BSP

officers. According to appellant, on May 19, 2017, an officer inappropriately

groped his genitals numerous times while being pat-frisked.             Thereafter,

appellant submitted a complaint pursuant to the Prison Rape Elimination Act

(PREA), 34 U.S.C. §§ 30301-09, to BSP administration.           Two days later,

appellant alleges that two BSP officers, including Higgins, removed him from

his cell, searched it for forty-five minutes, and improperly confiscated his DOC-

issued padlock, as well as the padlock of a former cellmate.

      Over the next five months, appellant claimed he repeatedly sought an

investigation into his allegations as well as protection from any retaliation by

BSP officers.    On June 29, 2017, during an interview with BSP Special

Investigative Division (SID) investigators as part of the PREA complaint

investigation, appellant expressed a fear for his safety and well-being. During


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the interview, appellant states he identified Adones, Higgins, and the officer

who allegedly groped him as among the most threatening and likely to harm

him.

       Appellant claims that Adones and another officer searched his cell on

September 3, 2017, allegedly "trash[ing] the cell" and destroying his personal

property.   As a result, appellant submitted another complaint to the BSP

administrator regarding, among other topics, the cell search and the abusive,

threatening conduct of Adones. This complaint, appellant alleges, led to the

September 11 incident underlying the current charges against him.

       Prior to the disciplinary hearing, appellant requested and was granted the

assistance of counsel substitute and, as noted, pled not guilty. He submitted a

written statement denying the charges and specifically maintained that contrary

to Adones' claim, "his hands were on his head and he did not refuse" the search.

He further relied on documentary evidence that the lock on the footlocker was

not his, maintaining that his DOC-issued locks were previously confiscated in

the May 27 search. In addition, his cellmate submitted a statement confirming

that appellant "did not own a lock" and further acknowledged that "the lock in

the room" belonged to him.




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         Appellant also requested copies of a DOC logbook to confirm that his

locks were indeed confiscated and a videotape which purportedly memorialized

the prior search, and which would assumedly confirm that the DOC seized his

locks.

         A Disciplinary Hearing Officer (DHO) considered defendant's statements

and other evidence, as well as the reports prepared by Adones, Higgins, and

Goodwin and found appellant guilty of all of charges. With respect to the *.202

charge, the DHO noted that Goodwin reported finding a weapon locked in

appellant's footlocker.    The DHO acknowledged that appellant denied the

charges, maintained he was not in possession of any locks, and that appellant's

cellmate appeared to concede that the lock seized by the DOC from their cell

was not appellant's but his. The DHO also considered appellant's request for

logbooks and a videotape of the prison dayroom but noted that after an

investigation, the requested logbook did not confirm the DOC confiscated any

of his locks and that the video of the dayroom was unavailable.

         With respect to the *.708 charge, the DHO again considered the parties'

written statements and reports and concluded that Adones reported that

"[appellant] was ordered to exit his cell for a search and he refused[,] stating

'you're not searching my room.'" Finally, as to the *.803/*.002 charge, the DHO


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noted that "Adones reported [appellant] attempted to assault him when he was

ordered to exit the cell for a search."

      The DHO combined the penalties for all three charges. In imposing the

sanctions for the *.202 charge, the DHO noted that she relied "on a weapon

[that] was found in [appellant]'s possession." The DHO also found that appellant

"was ordered out of his cell and he refused. [Appellant] state[d] his hands were

on his head and he did not refuse [but appellant] has no proof of his statement."

Finally, regarding the sanctions for the *.803/*.002 charge, the DHO recognized

that appellant had filed a grievance "regarding officers and their treatment

toward him," but nevertheless determined that appellant "attempted to assault

an officer when he was ordered to vacate the cell for a search."

      On the adjudication reports relating to two of the three charges, appellant's

counsel substitute signed and indicated that the information in the form

"accurately reflect[ed] what took place at the inmate disciplinary hearing,"

including that the right to confront adverse witnesses was "[o]ffered [and]

denied" as to each charge. On the adjudication report for the *.708 charge,

however, there is no signature or other acknowledgement from either counsel

substitute or appellant. Copies of the forms were later provided to appellant.




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      Appellant administratively appealed the disciplinary decision and on

October 3, 2017, the DOC Assistant Superintendent upheld the DHO's

determination concluding it "was based upon substantial evidence." This appeal

followed.

      Appellant raises three primary arguments on appeal. First, he argues that

he was denied due process in that the DHO's decision was not based upon

substantial credible evidence that appellant possessed a weapon or assaulted a

staff member. Second, he contends that the DHO "relied solely on staff reports"

in making the decision, "disregarding [appellant]'s contrary evidence and

statements as well as numerous credibility questions . . . ."

      Specifically, appellant asserts that at the time of the September 11, 2017

incident, "his hands were on his head and he did not refuse" the search. In

addition, he maintains that the officers whose written statements were

considered by the DHO had "documented animosity toward him." Appellant

further argues that the DHO improperly placed the burden of proof upon

appellant, "provided no reasons for her determination of [appellant's] guilt[,]

[and] instead simply repeated staff assertion[s]."

      Third, appellant contends that he was not provided with effective

assistance of counsel substitute during the disciplinary hearing, as his assigned


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counsel substitute did not "advise[] [appellant] of his right to examination of the

video evidence, a polygraph examination, and confrontation [of] adverse

witnesses . . . ." Appellant maintains that had he been informed of these rights,

the DOC "would have had to determine whether 'there [was] a serious question

of credibility and the denial of the examination would compromise the

fundamental fairness of the disciplinary process.'" (quoting Ramirez v. Dep't of

Corr.,  382 N.J. Super. 18, 20 (App. Div. 2005)).

      "Our role in reviewing the decision of an administrative agency is

limited." Figueroa v. N.J. Dep't of Corr.,  414 N.J. Super. 186, 190 (App. Div.

2010). "We defer to an agency decision and do not reverse unless it is arbitrary,

capricious[,] or unreasonable[,] or not supported by substantial credible

evidence in the record." Jenkins v. N.J. Dep't of Corr.,  412 N.J. Super. 243, 259

(App. Div. 2010). "'Substantial evidence' means 'such evidence as a reasonable

mind might accept as adequate to support a conclusion.'" Figueroa,  414 N.J.

Super. at 192 (quoting In re Pub. Serv. Elec. & Gas Co.,  35 N.J. 358, 376

(1961)).

      When reviewing a determination of the DOC in a matter involving

prisoner discipline, we engage in a "careful and principled consideration of the

agency record and findings." Williams v. Dep't of Corr.,  330 N.J. Super. 197,


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204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec. in Div. of

Consumer Affairs of Dep't of Law & Pub. Safety,  64 N.J. 85, 93 (1973)). We

consider not only whether there is substantial evidence that the inmate

committed the prohibited act, but also whether, in making its decision, the DOC

followed regulations adopted to afford inmates procedural due process. See

McDonald v. Pinchak,  139 N.J. 188, 194-96 (1995).

      "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)). However, the inmate's more limited

procedural rights, initially set forth in Avant v. Clifford,  67 N.J. 496, 525-46

(1975), are codified in a comprehensive set of NJDOC regulations. N.J.A.C.

10A:4-9.1 to 9.28.

      Those rights include an inmate's entitlement to written notice of the

charges at least twenty-four hours prior to the hearing, N.J.A.C. 10A:4-9.2, a

right to a fair tribunal, N.J.A.C. 10A:4-9.15, a limited right to call witnesses and

present documentary evidence, N.J.A.C. 10A:4-9.13, a limited right to confront

and cross-examine adverse witnesses, N.J.A.C. 10A:4-9.14, a right to a written

statement of the evidence relied upon and the reasons for the sanctions imposed,


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                                          9 N.J.A.C. 10A:4-9.24, and, in certain circumstances, the assistance of counsel-

substitute, N.J.A.C. 10A:4-9.12. 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,  139 N.J. at 202).

      Applying these principles, we are satisfied that there was substantial

credible evidence in the record to support the finding of guilt on all of the

charges, and that appellant received all the process he was due, despite his

assertions to the contrary. In this regard, appellant has not demonstrated that

the DOC's decision was arbitrary, capricious, unreasonable, or in violation of

either the enabling statute or implementing regulations. See Bowden v. Bayside

State Prison,  268 N.J. Super. 301, 304 (App. Div. 1993) (holding that "[t]he

burden of showing the agency's action was arbitrary, unreasonable[,] or

capricious rests upon the appellant").

      Here, the contemporaneous reports presented at the disciplinary hearing

established that appellant refused Adones' and Higgins' attempts to conduct a

routine search of his cell, which they had authority to perform regardless of any

previous searches. Instead of complying as directed, appellant was belligerent,

spewed vituperative epithets at Adones, and swung his closed fist at him. After


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appellant was restrained, a different officer, Goodwin, completed the search and

filed a report, also considered by the DHO, stating that an eight-inch homemade

knife was found in appellant's footlocker that was secured by a lock.

      Other than appellant's own denials and unsupported claims that multiple

corrections officers fabricated the incident to retaliate against him and,

assumedly, planted the weapon in his footlocker, nothing in the record

reasonably challenges the reliability of Adones', Higgins', or Goodwin's

observations as memorialized in their statements. Indeed, not a single proposed

witness directly supported appellant's account of the incident or buttressed his

retaliation theory.

      Further, the DHO clearly considered appellant's claim that the lock that

secured his footlocker where the weapon was found belonged to his cellmate.

The DHO specifically referred to, and considered, appellant's cellmate's

statement and concluded "it was not supportive" of appellant's defenses. While

it would certainly have been better practice to provide a more fulsome

explanation for that conclusion, the DHO's bases for its finding are clear from

the record.

      Indeed, as appellant himself contended, his locks were purportedly

confiscated in previous searches and he assumedly did not possess a lock that


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could have secured his footlocker when his cell was searched.            Neither

appellant's nor his cellmate's statements, however, contain any explanation

regarding the circumstances surrounding the use of his cellmate's lock on the

footlocker. And, at no point did appellant's cellmate contend that the weapon

belonged to him. Instead, appellant's claim, as best we can discern it, was that

the weapon was planted by corrections officers who jointly conspired to frame

him.    As noted, that allegation is pure supposition, unmoored to any

corroborating proofs, and directly contradicted by the reports of three different

officers who memorialized the assault and search.

       We also note that appellant never requested to call any specific witness,

nor did he request confrontation to support his claims.          Indeed, in the

adjudication reports completed by the DHO and signed by appellant's counsel

substitute, appellant confirmed that he declined the opportunity to call or

confront any witness. Specifically, on line fourteen of the adjudication reports,

the DHO noted that appellant declined to identify witnesses he "ask[ed] to be

called[,] including those requested through the investigator." Further, on line

fifteen, which required the DHO to "[l]ist [the] adverse witnesses the inmate

requests to confront/cross-examine including those requested through the

investigator," appellant explicitly acknowledged that he did not seek


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confrontation from any witness. Appellant's counsel substitute executed line

sixteen of the adjudication reports and, by doing so, confirmed that the

information on lines one through fifteen were accurate and memorialized what

occurred at the hearing. 2

      We are therefore satisfied appellant was afforded all of his due process

rights regarding the hearing as articulated in Avant,  67 N.J. at 525-33. He was

provided notice of the violations, given a written statement, afforded substitute

counsel, and had the opportunity to cross-examine adverse witnesses and call

his own witnesses, all before an impartial hearing officer.




2
  We acknowledge that, contrary to the DOC's representation in its merits brief,
line sixteen of the disciplinary adjudication form related to the *.708 charge is
not signed by appellant's counsel substitute. We conclude that counsel
substitute's failure to sign beneath line sixteen on the *.708 disciplinary
adjudication form was inadvertent and does not alter our conclusion that
appellant waived confrontation and his right to call witnesses for that charge as
well. First, neither counsel substitute nor the DHO identified any "reason for
[the] refusal" to affirm line sixteen as specifically requested in line seventeen,
suggesting counsel substitute's failure to sign beneath line sixteen was not
substantively based. Second, and more importantly, as detailed in our opinion,
the facts underlying the *.708 charge, and the percipient witnesses available to
appellant directly or in confrontation, are unquestionably inclusive of those
supporting the *.202 and *.803/*.002 charges. As noted, appellant's counsel
substitute confirmed that the information in the disciplinary report was accurate
as to those charges and specifically that appellant did not seek to call any
witnesses in his case-in-chief or in confrontation.
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      We also reject appellant's final point on appeal that the charges should be

vacated and the matter remanded for a new hearing because his counsel

substitute was ineffective. Although the right to counsel substitute in prison

disciplinary hearings is not equivalent to the constitutional right to formal or

retained counsel in non-institutional proceedings, Avant,  67 N.J. at 536–37,

appointment of counsel substitute is among the procedural safeguards to which

inmates are entitled when charged with asterisk offenses.        An inmate who

receives assistance from a counsel substitute who is not "sufficiently competent"

has been effectively denied the due process protections established by the

applicable regulations. Id. at 529.

      In this case, however, appellant never claimed ineffective assistance in his

administrative appeal. Even if we were to consider this contention, he presents

nothing in the form of certifications from prospective witnesses, for example, or

any other evidence to support his claims from which we could conclude that had

different counsel substitute been assigned, the outcome of the proceedings

would have been different. In addition, appellant provides no contemporaneous

records to suggest, contrary to the explicit acknowledgment on the disciplinary

adjudication forms, that he sought to call or confront witnesses.




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      The substantial evidence presented at the hearing supported the DHO's

finding of guilt on the three charges and the imposed sanctions. The decision of

the DOC upholding the charges was not arbitrary, capricious, or unreasonable.

To the extent we have not specifically addressed any of appellant's arguments,

it is because we consider them sufficiently without merit to require discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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