Opinion
DOCKET NO. A-4915-13T3
02-22-2016
JERMAINE DAVIS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Jermaine Davis, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the New Jersey Department of Corrections. Jermaine Davis, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
Jermaine Davis, at relevant times a prisoner at South Woods State Prison, appeals from a Department of Corrections (DOC) disciplinary decision. A hearing officer found that Davis committed prohibited act *.005, "threatening another with bodily harm or with any offense against his or her person or his or her property." N.J.A.C. 10A:4-4.1(a). The Associate Administrator upheld the decision after an administrative appeal. We affirm.
The threat was included in an extensive handwritten letter Davis intended to send to the British Consulate General. In his request for assistance from the foreign consul, Davis complained in detail that he was being harassed, retaliated against, and physically abused by Senior Corrections Officer Higbee. Davis alleged other officers joined in mistreating him. He said he feared Higbee, and felt panic whenever Higbee approached. Referring to Higbee, Davis wrote:
His mistreatments has had an immea[]ble influence on me. This influence has driven me to an extreme measure of wanting to hurt this man before [he] has the opportunity to hurt me or ending [sic] my life so he wouldn't end mines [sic] and get away with it.
The copy of the letter included in the record cut off words at the margins. We indicate the cut off letters with brackets.
Davis gave the letter to an inmate paralegal to make a copy before it was sent. The paralegal reported the letter to a corrections officer; another officer confiscated the letter after concluding it contained a threat toward Higbee.
At the hearing, Davis admitted writing the letter, stating it was intended for the British Consulate General. His counsel substitute sought leniency. The hearing officer found the letter "contained a direct threat made to hurt Officer Higbee." She imposed a sanction of ten days detention; 180 days loss of commutation time; and 180 days of administrative segregation, of which sixty days were apparently suspended.
The adjudication sheet states "180 Days Ad Seg s/60 days."
In his administrative appeal, Davis argued that review of his letter violated his attorney-client privilege, the confidentiality of legal correspondence, and his First Amendment rights. He also contended the letter was a plea for help and an expression of his feelings, not "directed as a threat." The Associate Administrator upheld the decision, explaining, "The sanction was proportionate to the offense in view."
On appeal, Davis renews his arguments that the letter was confidential and the Department's use of it violated his due process rights. In his reply brief, he contends the sentence in the letter was not a direct threat to harm Higbee, and was only an expression of his frustration with the harassment he suffered. Davis contends he did "not state that he 'would do' anything." Davis emphasizes the letter was directed to the British Consulate General, not Higbee.
We choose to address Davis's arguments raised for the first time in a reply brief, although we are not required to do so. See Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001).
Our standard of review is well-settled. We will disturb a disciplinary decision of the Department only upon a finding that the decision is "arbitrary, capricious or unreasonable," or is 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 Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). In determining whether an agency action is arbitrary, capricious, or unreasonable, we consider whether the agency followed the law, whether substantial evidence supports the findings, and whether the agency "clearly erred" in applying the "legislative policies to the facts." In re Carter, 191 N.J. 474, 482 (2007) (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). Though our review is not perfunctory, Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 191 (App. Div. 2010), we "may not substitute [our] own judgment for the agency's, even though [we] might have reached a different result." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Carter, supra, 191 N.J. at 483).
On the other hand, interpreting DOC regulations is a purely legal matter, which we consider de novo. Klawitter v. City of Trenton, 395 N.J. Super. 302, 318 (App. Div. 2007). "An appellate tribunal is . . . in no way bound by the agency's . . . determination of a strictly legal issue." Mayflower Sec. Co., Inc. v. Bureau of Sec, 64 N.J. 85, 93 (1973). Nonetheless, "[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).
Davis argues DOC violated his right to due process by inspecting his correspondence. DOC concedes that Davis's letter is legal correspondence under N.J.A.C. 10A:1-2.2(10), and that "outgoing mail shall not be opened, read or censored if it is considered legal correspondence[.]" N.J.A.C. 10A:18-2.7(b). DOC contends, however, that the letter was not yet "outgoing," as Davis voluntarily gave it to a third party for copying.
Regardless of whether Davis waived confidentiality, the officer's review of Davis's letter did not rise to a due process violation that compels dismissal of the disciplinary charge. In non-prison settings, the government must have engaged in outrageous misconduct to find a due process violation warranting dismissal of a prosecution. See United States v. Voigt, 89 F.3d 1050, 1065-66 (3d Cir. 1996). A claim of outrageous misconduct premised on "deliberate intrusion into the attorney-client relationship will be cognizable where the defendant can point to actual and substantial prejudice." Id. at 1066. Even assuming this theory applies in the prison setting, Davis's letter was not an attorney-client communication. As Davis has not offered any other theory that DOC engaged in outrageous misconduct, and given courts' reluctance to expand this doctrine, id. at 1065, we do not view the officer's review of Davis's letter as rising to the level of a due process violation.
Had Davis addressed his letter to a New Jersey attorney, he or she would have been obliged to "reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believe[d] necessary, to prevent the client . . . from committing a criminal . . . act that the lawyer reasonably believe[d] . . . likely to result in . . . substantial bodily harm . . . of another[.]" RPC 1.6(b)(1). See United States v. Alexander, 287 F.3d 811, 816-17 (9th Cir. 2002) (holding that client's communication to attorney that he intended to harm others, including attorney, were not privileged); cf. N.J.R.E. 504(2)(a) (crime fraud exception to attorney-client privilege).
We turn next to Davis's claim that the letter did not contain a threat to harm Higbee. An inmate charged with *.005 "threatening bodily harm" is guilty if "on the basis of an objective analysis . . . the remark conveys a basis for fear." Jacobs v. Stephens, 139 N.J. 212, 222 (1995). Jacobs held that an inmate's statement to an officer "'to get the fuck out of [my] face' during a 'heated' discussion" was sufficient on its own to find that a threat had been made. Id. at 223 (alteration in original). The Court noted, however, there was additional evidence supporting DOC's finding. Id. at 223-24.
Davis's statement that he was "wanting to hurt this man before [he] has the opportunity to hurt me or ending [sic] my life" was sufficient evidential support for DOC's finding of a threat. Though he claims he did not intend to harm Higbee, the remark objectively "convey[ed] a basis for fear." See id. at 222. And while the statement was made to a third person, there is no requirement that a threat be made directly to the subject to constitute a *.005 prohibited act. For example, an inmate's overheard statement to a fellow inmate that upon release he intended to harm his ex-girlfriend is not delivered to the victim, but is nonetheless a threat to harm another. "[T]he remark conveys a basis for fear." Ibid. It suffices that the listener or reader would fear that harm would be done to another or that the intended victim would have a basis for fear, if the threat were conveyed. Ibid. Likewise, Davis's statement reasonably conveyed a basis for fear that harm would come to Higbee. It is of no moment that Davis did not communicate his threat directly to Higbee.
Analogous criminal offenses involving threats require proof of a "purpose to terrorize," N.J.S.A. 2C:12-3(a), or a purpose to put the victim in "imminent fear of death," N.J.S.A. 2C:12-3(b). By contrast, prohibited act *.005 does not require proof of purpose to cause a victim fear, or even of an intent that the threat be conveyed to the victim. --------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION