Opinion
DOCKET NO. A-3162-11T4
03-15-2013
LOU JOHNSON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Lou Johnson, appellant pro se. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Maven.
On appeal from the New Jersey Department of Corrections.
Lou Johnson, appellant pro se.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Justin L. Conforti, Deputy Attorney General, on the brief). PER CURIAM
This is a prison disciplinary appeal. Lou Johnson, an inmate currently confined at the Adult Diagnostic and Treatment Center (ADTC), appeals from a Department of Corrections (DOC) determination, after administrative proceedings, finding that he committed prohibited act *.005 - threatening another with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a) - and imposing discipline on him.
On appeal, Johnson claims that the evidence fails to support the charge. We have considered his challenge in light of the record, the applicable law, the arguments of counsel and defendant, and the appropriate appellate standards. We are satisfied that the final agency decision should be affirmed.
The report of Senior Corrections Officer (SCO) Robert Renales established that Johnson disobeyed several orders and threatened SCO Renales with bodily harm. According to his report, on February 1, 2012, while SCO Renales was attempting to clear the day room in the ADTC A dorm before the passing out of commissary items, he saw Johnson start to walk across the day room and ordered Johnson to return to his dorm four times. Johnson refused and continued to talk to commissary workers, growing louder and more agitated each of the four times he was ordered to return. SCO Renales indicated he would give Johnson a charge if he did not obey his order, at which time Johnson tensed his arm muscles and made a fist with his right hand as he stated, "Go ahead and hit the button." Based on Johnson's physical actions, SCO Renales ordered the commissary workers and storekeeper Jason Somma into the kitchen and then hit the alarm.
Storekeeper Somma, who was in the immediate vicinity at the time of the incident, corroborated SCO Renales' account. Specifically, according to Somma, as Johnson started to walk across the day room, SCO Renales ordered Johnson to return to his dorm approximately four times, and Johnson ignored the orders. As a result, SCO Renales approached Johnson and said, "Do I have to give you a charge?" According to Somma, "the inmate said go ahead, hit the button as the inmate tightened up." As SCO Renales hit the code button, Johnson started to walk away toward the A dorm, at which point Sergeant Thomas Brisco and SCOs Robert Toro and Hector Valdes responded, handcuffed Johnson, and escorted him to the ADTC infirmary without incident.
Johnson produced his own statement and those of other inmate witnesses, which collectively did not dispute that Johnson was present in the day room prior to the incident, was ordered by SCO Renales to exit the day room because it was closed, and yet chose to remain.
At the close of evidence, the hearing officer found Johnson guilty of the *.005 charge and sanctioned him to 120 days' administrative segregation time, 120 days' loss of commutation time, and 30 days' loss of recreation privileges. The hearing officer also found Johnson guilty of prohibited act .256, but considering it to be minor, reduced it to an on-the-spot charge (OTSC), N.J.A.C. 10A:4-7.1, and sanctioned Johnson to 5 days' loss of recreation privileges. N.J.A.C. 10A:4-7.3.
Johnson administratively appealed the adjudication of the *.005 charge to the Assistant Superintendent, who upheld the guilty finding and the imposition of sanctions. This appeal follows.
Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not upset the determination of an administrative agency absent a showing it was arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence; or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 4 00, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. See generally De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985).
Furthermore, it is not our function to substitute our independent judgment for that of an administrative body, . . . where there may exist a mere difference of opinion concerning the evidential persuasiveness of
the relevant proofs. As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.
[Id. at 489-90 (citations omitted).]
In this case, the initial determination of the charge was made by a hearing officer in a disciplinary proceeding largely on credibility grounds. In finding Johnson guilty of the disciplinary infraction, the hearing officer relied on the reports of officers and a corroborating witness, Johnson's statement, and Johnson's witnesses' statements, and concluded that Johnson threatened SCO Renales with bodily harm. We find no basis to disturb the result, as we are satisfied that both the hearing officer's decision and the DOC's ultimate determination are sufficiently grounded on substantial credible evidence and should be affirmed. See Henry v. Rahway State Prison, supra, 81 N.J. at 579-80.
We are also satisfied that the administrative adjudication comported with procedural due process. See Avant v. Clifford, 67 N.J. 496, 522 (1975). Johnson timely received notice of the charge. A DOC sergeant thoroughly investigated the matter within twenty-four hours of Johnson being notified of the charge. Johnson was afforded an impartial hearing at which time he was free to challenge SCO Renales' credibility through confrontation, which he chose not to do, opting instead to produce various witness statements. Accordingly, the hearing comported with due process and the adjudication of guilt was adequately supported in the evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION