Opinion
DOCKET NO. A-0512-13T1
04-01-2015
RASOOL JENKINS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Rasool Jenkins, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the New Jersey Department of Corrections. Rasool Jenkins, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; William F. Hanna, Deputy Attorney General, on the brief). PER CURIAM
Rasool Jenkins (Jenkins), an inmate at Northern State Prison, appeals from the sanction imposed upon him by the Department of Corrections (DOC) for violating prison rule .709, which describes a violation as "failure to comply with a written rule or regulation of the correctional facility[,]" contrary to N.J.A.C. 10A:4-4.1(a). He filed an administrative appeal which was denied. We affirm the decision.
On August 30, 2013, while participating in the Gateway Drug Program, Jenkins had a verbal altercation with a counselor. It is undisputed that Jenkins accused the counselor of being a "liar" in front of the inmate group she was counseling. It was alleged by the counselor that Jenkins did this "several times while using [an] aggressive and threatening tone of voice, body posture, and stance and hand gestures such as pointing his fingers in [her] face, leaning towards [her] and raising his hands[.]" As a result, Jenkins was initially charged with violating prison rule *.005, which includes "threatening another with bodily harm[.]" As it turned out, the other witnesses did not support the allegations of threatening behavior. The witnesses did substantiate, however, the allegation that Jenkins called the counselor a liar.
On September 1, 2013, Jenkins was served with the original disciplinary charge form. The counselor signed her name in the wrong place, putting her signature, the date, and the time of the incident, which was approximately 9:30 a.m., in the place on the form where the officer who served it on Jenkins was supposed to sign. She then crossed it out.
On September 1, 2013, an officer served Jenkins with the charge form. In the available space near the crossed out information, he signed his name and the date, but inadvertently left out the time of service. Inmates who were witnesses, submitted signed statements on September 1, 2013. Jenkins requested and was granted a counsel substitute to assist him.
On September 3, 2013, Jenkins appeared before the hearing examiner, who told him he planned to drop the charge because it did not appear Jenkins had threatened the counselor based on witness statements. The officer, however, advised Jenkins that it had been disrespectful to call the counselor a liar. Instead of listening to the sound advice he was being given, Jenkins decided to display his hostile attitude by arguing with the hearing examiner, and insisting that calling a liar a liar was not disrespectful. He argued that his actions in attempting to humiliate the counselor before the group had been proper behavior. Not surprisingly, the hearing officer then advised Jenkins he was not going to dismiss the charges, but was downgrading them from a violation of rule *.005 to a violation of rule .709. Jenkins was found by the hearing examiner to have been disrespectful to the counselor, and was sentenced to fifteen days of detention, with credit for time served.
On September 4, 2013, Jenkins filed an administrative appeal, which was denied on September 10, 2013. This appeal follows, where Jenkins contends that there was a failure to adhere to the required notice time limits, in violation of N.J.A.C. 10A:4-9.9; a failure to notify him "within 48 hours" of the charges, in violation of N.J.A.C. 10A:4-9.2; that certain documents were falsified; and, that there was a failure to specify which written rule he violated to substantiate a .709 charge.
In reviewing an agency decision, the scope of our inquiry is limited. In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). Upon review, we are to ascertain whether the administrative action was "'arbitrary, capricious or unreasonable or [] is 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) (quoting Henry, supra, 208 N.J. at 579-80). "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) (citations omitted).
A prison disciplinary hearing is not a part of a criminal prosecution, and thus does not guarantee a full spectrum of due process rights given to a criminal defendant. Avant v. Clifford, 67 N.J. 496, 522 (1975). Inmates in a prison disciplinary hearing, however, are entitled to a limited range of due process rights. Ibid. These rights include: the right to an impartial tribunal, which may consist of personnel from the central office staff of the Department; written notice of the charges at least twenty-four hours prior to the hearing; a limited right to call witnesses and present documentary evidence; a limited confrontation right; a right to a written statement of the evidence used and justification for the sanctions imposed; and a right to the assistance of substitute counsel. Id. at 525-533; accord McDonald v. Pinchak, 139 N.J. 188, 193-96 (1995).
A review of the record fails to reveal any basis for reversal. Jenkins contends the DOC violated the timeframe established under N.J.A.C. 10A:4-9.2, which requires that an inmate receive a disciplinary report within forty-eight hours of a violation. In addition to the service requirement, N.J.A.C. 10A:4-9.2 states that "[t]he report shall be delivered by the reporting staff member . . . [and] signed by the person delivering it[.]" Ibid. The report should also include the date and time of delivery, and the "inmate shall have 24 hours to prepare his or her defense." Ibid.
Here, the exact time Jenkins was provided notice is unknown since the time was not put on the form. The space where it should have been entered contained the crossed out counselor's writing, which seems to explain the omission of the time. Since the incident occurred on August 30, 2013, at around 9:30 a.m. the notice should have been served on Jenkins by 9:30 a.m. on September 1, 2013, to be within forty-eight hours. The form was signed and dated as delivered, on September 1, 2013. In addition, the witnesses' statements were taken on September 1, 2013, which further corroborates the date of service. On those facts, we note that N.J.A.C. 10A:4-9.9 does not require dismissal of a disciplinary charge for failure to adhere to the forty-eight hour time limitation. N.J.A.C. 10A:4-9.9 states:
[t]he failure to adhere to any of the time limits prescribed in this subchapter shall not mandate the dismissal of a disciplinary charge. However, the Disciplinary Hearing Officer . . . may, in [his or her] discretion, dismiss a disciplinary charge because of a violation of time limits.
Even if it was served later in the day, and the time was not put on the form, it is not significant where Jenkins suffered no prejudice as a result. There was no prejudice to Jenkins; he was advised of the charges against him, and was given ample opportunity to prepare his defense. Jenkins was given notice of the original charge more than twenty-four hours before his hearing date on September 3, 2013. On that date, when the charge was modified, his counselor substitute signed a form waiving the need for another twenty-four hour delay before the amended charge hearing.
Jenkins next argues that documents were falsified in order to comply with the above time requirements. Notably, he alleges the hearing officer entered on the "Adjudication of Disciplinary" form that the charge was served on Jenkins 9:30 p.m. on September 1, 2013, a time when the serving officer was not on duty. Clearly, this was a mistake. The officer may have worked the day shift on that date, but the hearing examiner had no motive to check p.m. on the form instead of a.m., since the latter time would be in compliance with the regulations and the time entered stated the form was served late. We find Jenkins' argument on this point without merit.
Finally, Jenkins argues that he was never told of the specific rule he violated when the hearing officer changed the charge from *.005 to .007. Although we agree the officer failed to specifically reference the particular rule on the form, and cited to the wrong page of the disciplinary handbook when saying it was on page ten instead of page eleven, Jenkins was well informed of the charge against him.
Jenkins concedes that the hearing officer told him he was "disrespectful" for calling the counselor a liar. Moreover, Jenkins himself admits that he had a discussion with the hearing officer where he contested that "telling someone they were lying or is a liar wasn't disrespectful if the statement was true." Lastly, Jenkins notes the hearing officer told him, "you called [her] a liar and I find that disrespectful." Thus, it is clear that the hearing officer was referencing N.J.A.C. 10A:4-3.1(b)(1).
The administrative decision in this case was not "arbitrary, capricious or unreasonable or . . . not supported by substantial credible evidence." See Ramirez, supra, 382 N.J. Super. at 23. Jenkins called a counselor a liar in front of the whole counseling group. There were other ways to disagree with her. He could have just stated he disagreed with her statements. He could have said she was mistaken or wrong. He could have filed a grievance against her according to prison policy. Instead, he verbally attacked her and belittled her, and the hearing officer found that he was disrespectful, in violation of N.J.A.C. 10A:4-3.1(b)(1). Thus, the officer found that Jenkins violated prison rule .709, which requires inmates to comply with written rules and regulations of the correctional facility.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.A.C. 10A:4-3.1(b)(1) states that "[inmates] have the responsibility to treat others, both employees and inmates, respectfully, impartially and fairly."