Opinion
DOCKET NO. A-3025-11T2
03-21-2013
LEWIS HARGROVE, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Lewis Hargrove, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Happas.
On appeal from the New Jersey Department of Corrections.
Lewis Hargrove, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy attorney General, on the brief). PER CURIAM
Lewis Hargrove, while an inmate at Bayside State Prison (BSP), was found guilty of a disciplinary infraction for committing prohibited act *.202, possession of a weapon in violation of N.J.A.C. 10A:4-4.1. He appeals the decision and sanction imposed by the Department of Corrections (DOC). Having considered the record before us, we affirm. I.
DOC Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1. See also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007).
On January 10, 2012, at approximately 11:15 a.m., Senior Corrections Officer (SCO) Wooding searched cell #126 assigned to Hargrove and another inmate. During the search, SCO Wooding found a six and one-half inch metal shank hidden in the bed frame. Sergeant Sullivan questioned Hargrove and his cellmate and both inmates denied ownership of the shank. Hargrove was placed in pre-hearing detention.
On January 11, 2012, Sergeant Creamer served Hargrove with a copy of the charge, conducted an investigation, and referred the charge to a hearing officer. Hargrove pled not guilty and was granted the assistance of counsel substitute. The hearing was first scheduled for January 13, 2012. The hearing was postponed until January 25, 2012 due to Hargrove's request for a polygraph examination and for the hearing officer to review evidence. Hargrove's request for a polygraph examination was administratively denied with the explanation that the disciplinary report and supplemental evidence supported the charge as written.
The hearing took place on January 25, 2012. Hargrove's counsel substitute alleged a violation of due process because (1) there was a discrepancy in the reports as to which officer found the weapon in Hargrove's cell, (2) the reporting officer who conducted the search did not write the charge, and (3) there was no reason to place Hargrove in pre-hearing detention. At the hearing Hargrove provided a written statement. He did not call witnesses on his own behalf. He also declined to confront and cross-examine adverse witnesses.
Hearing Officer Morales Pitre found Hargrove guilty and imposed sanctions of fifteen days detention with credit for time served, three hundred and sixty five days loss of commutation time, and three hundred and sixty five days administrative segregation. Hargrove filed an administrative appeal. The hearing officer's decision was upheld by an associate administrator of the DOC on January 26, 2012. This appeal followed.
On appeal, Hargrove claims that his due process rights were violated because he was not given a fair and impartial hearing and that his request for a polygraph examination was wrongfully denied. II.
Our role in reviewing an agency decision is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Our function is to determine whether the administrative action was arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005) (citations omitted). "The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
The DOC has "broad discretionary powers" to promulgate regulations aimed at maintaining security and order inside correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252 (1987). Moreover, "[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).
Prison disciplinary hearings are not part of a criminal prosecution, and the full spectrum of rights due to a criminal defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522, (1975). Nonetheless, prisoners are entitled to certain limited due process protections. Ibid. These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff, a limited right to call witnesses, the assistance of counsel substitute, and a right to a written statement of evidence relied upon and the reasons for the sanctions imposed. Id. at 525-33; see also McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995). We are satisfied that Hargrove was afforded all of the due process protections he was entitled to receive.
"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 means "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Gas & Elec. Co., 35 N.J. 358, 377 (1961).
Based upon our review of the record, we reject as without merit Hargrove's argument that the hearing officer's determination was not based upon substantial credible evidence on the record. We have reviewed all of Hargrove's contentions set forth in his written submissions and find that none of them have sufficient merit.
We are satisfied that the record contains sufficient and substantial evidence to support the agency's findings. Moreover, the hearing officer's written decision confirms that defendant was offered the opportunity to confront any witnesses against him and he declined. Hargrove also failed to call any witnesses on his own behalf. The hearing officer's report details the evidence relied upon and sets forth the facts and circumstances of the charge, as well as the reasons for finding Hargrove guilty. The hearing officer considered the discrepancy in the written reports and concluded that it was SCO Wooding who found the shank. Nonetheless, it was undisputed that the shank was found in Hargrove's cell and neither Hargrove nor his cellmate accepted responsibility for ownership of it.
We reject Hargrove's argument that he was denied due process because he did not receive the requested polygraph examination. The initial decision whether to subject an inmate to a polygraph examination rests with the prison administrator, in instances when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge, or . . . [a]s part of a reinvestigation of a disciplinary charge." N.J.A.C. 10A:3-7.1(a). A polygraph examination is "clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez, supra, 382 N.J. Super. at 23-23. Only when denial of the examination would compromise the fundamental fairness of the disciplinary process should the request be granted. Id. at 20. Fundamental fairness may be implicated when there is evidence of "inconsistencies in the [correction officer's] statement or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf." Id. at 24.
We find no serious question of credibility or denial of fundamental fairness that gave Hargrove a right to a polygraph examination. Hargrove did not cross-examine SCO Wooding or present any evidence that corroborated his claim that an unnamed officer may have planted the shank in his cell. Moreover, it was undisputed that the shank was found in Hargrove's cell.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION