Opinion
DOCKET NO. A-0507-14T2
07-18-2016
PHILLIP A. DIXON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Phillip A. Dixon, appellant pro se. Robert Lougy, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Simonelli. On appeal from the New Jersey Department of Corrections. Phillip A. Dixon, appellant pro se. Robert Lougy, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM
Appellant Phillip A. Dixon appeals from the April 24, 2014 final agency decision of respondent New Jersey Department of Corrections (DOC), which affirmed the decision of a hearing officer finding Dixon guilty of, and imposing disciplinary sanctions for, committing prohibited acts *.151, setting a fire, 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). For the following reasons, we affirm.
Dixon is serving a term of life imprisonment with a thirty-two-year and six-month period of parole ineligibility for convictions for murder, aggravated criminal sexual contact, possession of a weapon for an unlawful purpose, and two counts of hindering apprehension. He is presently incarcerated at New Jersey State Prison (NJSP).
On March 20, 2014, Dixon left his cell and went to the morning yard. At approximately 10:46 a.m., a senior corrections officer (SCO) was counting rounds on the unit floor when he observed and smelled smoke coming from Dixon's cell. The SCO immediately called a Code-21 (fire), and additional officers responded to the cell. A fire was located in Dixon's cell under the countertop and near a bed, and was extinguished with a fire extinguisher. The fire was determined to be the result of an unattended heating device known as a "stinger" that was left plugged into a surge suppressor and inserted into a plastic cup that fell into a box of papers, igniting them. The fire caused a significant amount of smoke on the unit, which required smoke ejectors to clear the air.
Immediately following the Code-21, Dixon and other inmates on his unit returned to the unit from the morning yard. Dixon was handcuffed and placed in pre-hearing detention. The other inmates were evacuated and placed in the chapel area until the unit could be cleared of smoke and the inmates could safely return to their cells. As a result of the Code-21, yard and mess services were delayed, and count was unable to be taken for over one hour.
On March 20, 2014, the DOC served Dixon with disciplinary charges. The hearing began on March 24, 2014. Dixon pled not guilty and requested and received counsel substitute. Dixon submitted a written statement, declined the opportunity to call witnesses on his behalf, and requested and was granted the opportunity to confront adverse witnesses.
The hearing was postponed due to the hearing officer's unavailability. The hearing was postponed on March 25 and 27 and April 2 and 4, 2014 because Dixon requested confrontation of two adverse witnesses and additional time was needed to re-schedule. The hearing was again postponed on April 7, 2014, so that Dixon could prepare his summation; on April 8, 2014, because Dixon was transported to the hospital; and on April 9, 2014, because Dixon requested an additional twenty-four hours to finish his summation. The hearing concluded on April 10, 2014.
After reviewing the evidence, the hearing officer found Dixon guilty of the above-mentioned charges and, in accordance with N.J.A.C. 10A:4-9.15, issued a summary of the facts supporting each charge. With regard to both charges, the hearing officer stated as follows:
Whether [Dixon] altered or did not alter his stinger, whether the thermostat was hardwired or not, it does [not] negate the fact that . . . Dixon left his stinger unattended (went to rec) and in use (plugged in) as he left the cell which caused the fire to ignite. . . . [Dixon] is responsible for his area and his stinger. [Dixon] carelessly allowed his stinger to evaporate liquid in [a plastic cup] and started a fire within his cell. . . . Evidence supports the charge.The hearing officer sanctioned Dixon to 15 days' detention, with credit for time served; 365 days' administrative segregation; 365 days' loss of commutation time; and 120 days' loss of recreation privileges.
On April 11, 2014, Dixon filed an administrative appeal. On April 24, 2014, the assistant superintendent upheld the hearing officer's decision. This appeal followed.
On appeal, Dixon raises the following contentions:
POINT I
THE DECISION OF THE HEARING OFFICER WAS NOT BASED UPON SUBSTANTIAL EVIDENCE, IN VIOLATION OF THE CODE.
POINT II
THE HEARING OFFICER CONDUCTED AN IN ABSENTIA HEARING, IN VIOLATION OF THE CODE.
POINT III
APPELLANT WAS DENIED CONFRONTATION OF ADVERSE WITNESSES, IN VIOLATION OF THE CODE.
POINT IV
APPELLANT WAS DENIED DUE PROCESS DURING THE AGENCY APPEAL, IN VIOLATION OF THE CODE.
POINT V
APPELLANT WAS DENIED DUE PROCESS BY THE ABSENCE OF A [] VERBATIM RECORD.
"[We] have 'a limited role' in the review of [agency] decisions." In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A] 'strong presumption of reasonableness attaches to [an agency decision].'" In re Carroll, 339 N.J. Super. 429, 437 (App. Div.) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994)), certif. denied, 170 N.J. 85 (2001). We reverse an agency's decision only where it is arbitrary, capricious, unreasonable or unsupported by credible evidence in the record. Henry, supra, 81 N.J. at 579-80; Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005). An adjudication of guilt of a charge against an inmate must be supported by "substantial evidence." N.J.A.C. 10A:4- 9.15(a). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)). The term has also been defined as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002).
We have considered Dixon's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Dixon was afforded all due process protections required by Avant v. Clifford, 67 N.J. 496, 525-33 (1975); the hearing officer's decision, including the sanctions imposed, was based on substantial evidence that Dixon committed the prohibited acts; and the DOC's decision was not arbitrary, capricious, or unreasonable.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION