LENNOX RISDEN 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NOT FOR PUBLICATION WITHOUT THE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-4529-17T3

LENNOX RISDEN,

          Appellant,
v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
__________________________

                    Submitted October 15, 2019 – Decided November 19, 2019

                    Before Judges Geiger and Natali.

                    On appeal from the New Jersey Department of
                    Corrections.

                    Lennox Risden, appellant pro se.

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Rachel Simone Frey, Deputy
                    Attorney General, on the brief).

PER CURIAM
       Lennox Risden, a New Jersey State Prison inmate, appeals from a final

administrative decision of the Department of Corrections (DOC) imposing

sanctions against him for committing prohibited act *.011, possession or

exhibition of anything related to a security threat group (STG),1 in violation of

N.J.A.C. 10A:4-4.1(a). We affirm.

       On February 13, 2018, Senior Correction Officer S. Pazik (SCO Pazik) 2

searched Risden's cell and confiscated several letters later determined to contain

STG material.     According to Risden, however, he was contemporaneously

detained by area supervisor Sergeant Mendoza who advised him that his cell

was being searched and "if nothing was found, [he would] be released and

moved to a different unit." Risden also alleged that Sergeant Mendoza also

stated, "nothing was found and that he's good to go back to [a] a new unit."


 1 N.J.A.C. 10A:3-11.2 defines a STG as:

             a group of inmates possessing common characteristics,
             interests and goals which serve to distinguish the group
             or group members from other inmate groups or other
             inmates and which, as a discrete entity, poses a threat
             to the safety of the staff, other inmates, the community
             or causes damage to or destruction of property, or
             interrupts the safe, secure and orderly operation of the
             correctional facility(ies).
2
    The record does not contain SCO Pazik's or Sergeant Mendoza's first names.


                                                                          A-4529-17T3
                                        2
      The next day, Special Investigations Division Investigator Alixa Lamboy

(SID Lamboy), who was experienced with respect to gang identification issues,

analyzed the letters that SCO Pazik seized from Risden's cell. In a February 15,

2018 report, SID Lamboy concluded that the letters referenced a STG group,

specifically the "Bloods."3 SID Lamboy stated the letters included multiple

references to a faction of the Bloods, to which Risden had been identified as a

ranking member.     The correspondence also noted various individuals' rank

within the Bloods and commented on gang activity.

      Risden was charged with a *.011 offense based on the content of the letters

and was served with the charges on February 15, 2018. The matter was also

referred to a Disciplinary Hearing Officer (DHO) for further action. Risden pled

not guilty to the charges, and requested the assistance of a counsel substitute,

which the DHO granted.

      At the hearing, the DHO considered Risden's written statement that the

DOC failed to provide him with a contraband seizure slip, and that the officer

who searched his cell failed to write a report memorializing that he seized the



3
   "The 'Bloods' is a criminal gang described by the New Jersey State Police as
a franchise with numerous smaller gangs taking the 'brand name' of the gang and
adopting the gang's symbols, ideology and terminology." State v. Dorsainvil,
 435 N.J. Super. 449, 455 n.5 (App. Div. 2014).
                                                                         A-4529-17T3
                                       3
letters containing STG contraband, as well as a number of other due process

violations. In addition, the DHO noted that Risden maintained he couldn't "say

that [the letters] came out of my cell," as he "never got [his] seizure reports."

      Risden initially sought confrontation with SCO Pazik, Sergeant Mendoza,

and SID Lamboy, but subsequently limited his request for confrontation to SID

Lamboy. The DHO noted that during his confrontation with SID Lamboy,

Risden "did not ask questions pertaining to evidence being STG Blood."

Risden's counsel substitute also asked for leniency at the hearing.

      After hearing the testimony and considering all of the evidence, which

included Risden's written statement, reports of the evidence seized from

Risden's cell prepared by SCO Pazik, his confrontation of SID Lamboy, and SID

Lamboy's February 15, 2018 report, the DHO found Risden guilty of the *.011

charge. The DHO granted Risden's request for leniency and sanctioned him to

120 days of administrative segregation, loss of 60 days of commutation time and

recreation privileges, a verbal reprimand, and confiscation of the STG

contraband. When imposing the sanctions, the DHO noted that Risden had

previous *.010 (participating in an activity related to a STG) and *.011 charges

and was aware that the DOC prohibited possession of STG material.




                                                                           A-4529-17T3
                                         4
      Risden administratively appealed the decision and the Assistant

Superintendent upheld the DHO's determination. This appeal followed.

      Risden primarily argues that he was denied due process under Wolff v.

McDonnell,  418 U.S. 539 (1974), and Avant v. Clifford,  67 N.J. 496 (1975),

because he was denied confrontation with Sergeant Mendoza and SCO Pazik.

The record establishes, however, that Risden received all the process he was due

as the DHO permitted Risden the opportunity to call and confront witnesses.

      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).

      "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. at 556). An inmate's more limited procedural rights,


                                                                        A-4529-17T3
                                       5
initially set forth in Avant, 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 v. Department

of Corrections,  330 N.J. Super. 197, 203 (App. Div. 2000) (citing McDonald v.

Pinchak,  139 N.J. 188, 202 (1995)).

      Risden's claim that his due process rights were violated because he was

prevented from calling witnesses at his hearing is belied by the record. 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:4-9.14(a) (emphasis supplied); see also Avant,  67 N.J. at 529–30.

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


                                                                            A-4529-17T3
                                         6
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.

      Here, although it appears that Risden sought confrontation with Sergeant

Mendoza and SCO Pazik in addition to SID Lamboy at an earlier point in the

proceedings, the adjudication report completed by the DHO and other evidence

from the record, clearly establishes that he subsequently sought confrontation

only from SID Lamboy. Indeed, the adjudication report, which was signed by

Risden's counsel substitute, confirms that he declined the opportunity to call or

confront Sergeant Mendoza and SCO Pazik. Specifically, on line 14 of the

adjudication report, the DHO noted that Risden declined to identify witnesses

he "ask[ed] to be called[,] including those requested through the investigator."

Further, on line 15 of the adjudication report, which required the DHO to "[l]ist

[the] adverse witnesses the inmate requests to confront/cross-examine including

those requested through the investigator," Risden explicitly acknowledged that

he sought confrontation only of SID Lamboy. In this regard, Risden's counsel

substitute executed line 16 of the adjudication report and by doing so confirmed

that the information on lines 1 through 15 were accurate and memorialized what


                                                                          A-4529-17T3
                                        7
occurred at the hearing. Risden neither objected generally to the conduct of the

hearing to articulate his disagreement with the statements in lines 14-16 of the

adjudication report, nor specifically to protest that his confrontation was

improperly limited to SID Lamboy. In addition to the adjudication report,

neither Risden nor his counsel substitute, submitted proposed confrontation

questions for Sergeant Mendoza or SCO Pazik to the DHO for consideration as

required, as he did with respect to SID Lamboy. See N.J.A.C. 10A:4-9.14(c).

      Further, based on our review of the record, Risden failed to establish that

the proposed confrontation of SCO Pazik or Sergeant Mendoza involved such

serious credibility issues that would have warranted confrontation in any event

as his determination of guilt did not turn on "the credibility of the officer[s] or

the inmate . . . ." Decker,  331 N.J. Super. at 359 (App. Div. 2000); N.J.A.C.

10A:4-9.1(a); see also Ramirez v. Department of Corrections,  382 N.J. Super.
 18, 23-24 (App. Div. 2005) (the phrase "serious issues of credibility" in the

context of a request for a polygraph under N.J.A.C. 10A:3-7.1(a)(2), includes

"inconsistencies in the [officers'] statements or some other extrinsic evidence

involving credibility").

      Indeed, based on the adjudication report, Risden's guilt was established

by SID Lamboy's February 15, 2018 report and testimony confirming that the


                                                                           A-4529-17T3
                                        8
letters contained STG material. The seizure of the letters from Risden's cell was

supported by the contemporaneous seizure records prepared by SCO Pazik .

Other than objecting to the DOC's failure to provide copies of those reports prior

to the hearing, Risden provided no extrinsic evidence to challenge the veracity

of SCO Pazik's reports. Rather, he offered only his equivocal statement to the

DHO that he could not "say that [the letters] came out of [his] cell . . . [as] . . .

[he] never got [the] seizure reports," and that Sergeant Mendoza stated "nothing

was found" in his cell, a statement allegedly made before SID Lamboy had even

completed her February 15, 2018 report. Risden, however, never disputed in his

written statement to the DHO, at the hearing, in his administrative appeal or

before us, that the letters were all addressed to him and he received them. Under

these circumstances, we cannot conclude that the serious issues of credibility

existed in the record which would have warranted confrontation of either officer.

      Risden's remaining due process arguments, including his claim that the

DHO incorrectly indicated on the adjudication report that she did not consider

confidential information, and that the DHO's decision was not supported by

substantial credible evidence in the record, lack sufficient merit to warrant

discussion in a written opinion. R. 2:11–3(e)(1)(D) and (E). SID Lamboy's

report was clearly identified at the hearing as relied upon by the DHO and


                                                                             A-4529-17T3
                                         9
Risden was given an opportunity to challenge SID Lamboy's conclusions during

confrontation. In these circumstances, the DHO's failure to mark the material

as confidential was harmless. The final decision was amply supported by the

evidence at the hearing.

      Affirmed.




                                                                      A-4529-17T3
                                    10