MAURICE GOODEN 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NOT FOR PUBLICATION WITHOUT THE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-0983-19

MAURICE GOODEN,
a/k/a MAURICE GOODING,
and MARK THOMAS,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted March 10, 2021 – Decided April 8, 2021

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Maurice Gooden, appellant pro se.

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

PER CURIAM
      Appellant Maurice Gooden, an inmate at New Jersey State Prison, appeals

from the October 1, 2019 final determination of the Department of Corrections

(DOC) upholding a hearing officer's finding that he committed prohibited acts:

*.002, assaulting any person; *.005, threatening another with bodily harm or

with any offense against his or her person or property; and *.306, conduct which

disrupts or interferes with the security or orderly running of the correctional

facility; in violation of N.J.A.C. 10A:4-4.1(a). We affirm.

      On August 27, 2019, Gooden was housed in Cell No. 6 of Housing Unit

2B Right at New Jersey State Prison. At around 9:45 a.m. that day, Disciplinary

Hearing Officer T. Cortes was conducting an adjudicatory hearing in Cell No. 4

of Housing Unit 2B Right. Also present were Officer B. Sides and inmate

paralegal Robert Hill.    As they entered the Unit, Gooden began yelling

threatening statements at Hill, including, "I will fuck you up when I get out of

here, you bitch ass n—ger!" Gooden also called Hill a "stool pigeon."

      Gooden continued making threatening statements to Hill throughout the

hearing. The threatening statements were apparently related to a prior incident

in which Hill provided a witness statement concerning a disciplinary infraction

for which Gooden was sanctioned. As a result of his conduct, Gooden was

charged with committing prohibited act *.005.

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      Following that incident, Gooden was escorted to the medical unit for

evaluation. Upon returning to his cell, Officer Christmas ordered Gooden to

remove his shoelaces prior to placing him in pre-hearing detention.         After

removing the first shoelace, Gooden used it to whip Christmas across the left

side of his face. Gooden then removed his other shoe and raised it in an

aggressive manner. As a result of the assault, Lieutenant Peterson called a code

33–officer needs assistance emergency. This required numerous officers to

leave their assigned posts to assist and delayed lunch mess movement for

approximately thirty minutes. Gooden was charged with committing prohibited

acts *.002 and *306.

      On August 28, 2019, a corrections sergeant served the charges on Gooden,

investigated the charges, and referred the charges to a hearing officer. On the

same day, a mental health evaluation of Gooden was performed to determine his

mental status and level of responsibility. The evaluator found that Gooden

suffered from a mental illness but concluded the mental illness did not contribute

to his behavior during the alleged infraction and that Gooden was responsible

for his actions.   The evaluator also concluded that Gooden was mentally

competent to defend himself and understand the disciplinary proceeding.




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      The hearing took place on September 17, 2019. Gooden requested and

was granted the assistance of a counsel substitute and pleaded not guilty to the

charges.

      Gooden requested witness statements relating to the *.005 and *.306

charges from inmates A. Harris, J. Roman, and Hill. The investigating sergeant

obtained statements from Harris and Roman, but Hill refused to provide a

statement. The statements were considered by Disciplinary Hearing Officer

Falvey.    Gooden also requested and was granted confrontation of Hearing

Officer Cortes, Lieutenant Peterson, and Officers Christmas and Sides.

      After hearing the testimony, reviewing the evidence, and considering

Gooden's arguments, Disciplinary Hearing Officer Falvey found Gooden guilty

of all three charges. On the *.005 charge, Gooden was sanctioned to 180 days

of administrative segregation, loss of 180 days of commutation time, and loss of

email privileges for 30 days. The hearing officer found Gooden had a prior

disciplinary history involving numerous threatening charges, that prior

sanctions did not have a deterrent effect, and that Gooden's threat against an

inmate paralegal showed a callous disregard for safety and security. The hearing

officer also considered Gooden's mental health status.




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      On the *.002 charge, Gooden was sanctioned to 300 days of administrative

segregation, loss of 300 days of commutation time, and loss of recreation

privileges for 30 days, to run consecutively to the sanctions imposed for the

*.005 charge. The hearing officer found Gooden "has [a] prior disciplinary

history highlighted by recent threats and has now escalated to assault on staff.

Prior sanctions ineffective. Gooden continues to exhibit conscious disregard for

safety of officers." Gooden's mental health status was noted. The hearing

officer stated the sanctions were "intended to deter this conduct."

      On the *.306 charge, Gooden was sanctioned to a concurrent 180 days of

administrative segregation, and a consecutive loss of 180 days of commutation

time. The hearing officer found "Gooden ha[d] an extremely poor disciplinary

history. Full of disruption and violence. Sanctions intended to deter [inmate]

from further disruption and keep in setting where he can be controlled."

Gooden's mental health status was noted.

      Gooden administratively appealed the hearing officer's decision. (Ra87-

91). On October 1, 2019, Assistant Superintendent Amy Emrich upheld the

guilty findings and the sanctions imposed.        Emrich determined that the

proceeding satisfied the procedural safeguards set forth in the inmate discipline

regulations of the New Jersey Administrative Code. She found that the


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preponderance of the evidence presented supported the hearing officer's decision

that Gooden was guilty of the three charges.       Emrich noted that Gooden's

"mental health history was reviewed and considered." This appeal followed.

      Gooden raises the following points for our consideration:

            I. THE HEARING OFFICER SHOULD HAVE
            RECUSED HERSELF BECAUSE SHE WAS A
            WITNESS TO THE *.005 CHARGE, WHICH
            CREATED A CONFLICT OF INTEREST.

            II. APPELLANT'S RIGHT TO CONFRONTATION
            WAS     VIOLATED   BY   NOT   ALLOWING
            APPELLANT     TO   CONFRONT    [OFFICER]
            MCLEAN.

            III. THE HEARING OFFICER'S DECISION WAS
            NOT BASED UPON SUBSTANTIAL CREDIBLE
            EVIDENCE.

            IV. APPELLANT'S REQUEST FOR A POLYGRAPH
            SHOULD HAVE BEEN GRANTED.

      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.
 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

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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 entitled to "the full panoply

of rights" afforded a defendant in a criminal prosecution. Avant v. Clifford,  67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer,  408 U.S. 471, 494 (1972)).

An inmate is 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 documentary 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 the sanctions imposed; and, where the charges are complex, the

inmate is permitted the assistance of a counsel substitute. Id. at 525-33.

      The record reveals that each of these procedural requirements were met.

Gooden received timely notice of the charges. He was afforded the assistance


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of counsel substitute pursuant to N.J.A.C. 10A:4-9.12.      Gooden submitted

written statements denying the charges and requesting a polygraph. His counsel

substitute argued on his behalf. Written statements of two witnesses were

provided; the third refused to provide a statement.      Gooden was granted

confrontation of Hearing Officer Cortes, Lieutenant Peterson, and Officers

Christmas and Sides, in form of written questions to be answered by the witness

at the hearing in accordance with N.J.A.C. 10A:4-9.14.       He also had the

opportunity to ask follow-up questions. The hearing was conducted by Hearing

Officer John Falvey, a member of the DOC's Central Office, thereby providing

an impartial tribunal. Accordingly, Gooden received due process.

      Gooden contends that Hearing Officer Cortes should have recused herself

because she was a witness to the *.005 charge. Gooden is clearly mistaken.

Hearing Officer Falvey adjudicated the charges, not Cortes. There was no

conflict of interest.

      Gooden also contends that his request for confrontation of Officer

McLean was improperly denied. The record demonstrates that none of the

officers involved in the incidents was named "McLean."

      Gooden further contends that his polygraph request should have been

granted. An inmate does not have the right to a polygraph test. Johnson v. N.J.


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Dep't of Corr.,  298 N.J. Super. 79, 83 (App. Div. 1997) (citing N.J.A.C. 10A:3-

7.1(c) ("An inmate's request for a polygraph examination shall not be sufficient

cause for granting the request.")). Instead, N.J.A.C. 10A:3-7.1 "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.

However, "fundamental fairness will not be effected when there is sufficient

corroborating evidence presented to negate any serious question of credibility."

Id. at 24.

      Because adequate corroborating evidence was presented to confirm the

officers' credibility, Gooden "has failed to demonstrate that the denial of his

request for a polygraph negated the fundamental fairness of the disciplinary

proceeding which would compel the granting of his request for a polygraph."


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                                        9 Id. at 26. The officers' reports of the incidents were consistent and supported

the findings that Gooden threatened Hill and assaulted Officer Christmas. While

Gooden's witnesses claimed they did not hear him threaten Hill, the two

witnesses that heard the threat, Hearing Officer Cortes and Officer Sides, were

in closer proximity to Gooden than his two witnesses.         Moreover, Gooden

admitted that he had previously called Hill a "stool pigeon." We are satisfied

the Assistant Superintendent did not abuse his discretion by denying the request

for a polygraph test.

      We next consider whether there was adequate evidence to find Gooden

guilty of committing prohibited acts *.002, *.005, and *.306. "A finding of guilt

at a disciplinary hearing shall be based upon substantial evidence that the inmate

has committed a prohibited act."        N.J.A.C. 10A:4-9.15(a).      "Substantial

evidence" is "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)). In other words, it is "evidence

furnishing a reasonable basis for the agency's action." Ibid. (quoting McGowan

v. N.J. State Parole Bd.,  347 N.J. Super. 544, 562 (App. Div. 2002)).

      Our careful review of the record convinces us there was substantial

evidence to find Gooden guilty of committing prohibited acts *.002, *.005, and


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*.306.   Accordingly, the DOC's final determination was not arbitrary,

capricious, or unreasonable.

      Affirmed.




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