Opinion
DOCKET NO. A-0373-13T1
04-29-2015
DAMON ZENGOTITA, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Damon Zengotita, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Ashrafi. On appeal from the New Jersey Department of Corrections. Damon Zengotita, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief). PER CURIAM
Inmate Damon Zengotita appeals disciplinary sanctions imposed upon him by the Department of Corrections (DOC) for making a threat against a corrections officer. We remand for further consideration of the charge by the DOC.
On August 10, 2013, Zengotita's residential unit at South Woods State Prison was ordered outside into the recreation yard. According to Zengotita, he was walking alongside an inmate he calls Mr. Joe who was eighty-six years old, in remission from cancer, and walking with a cane. Mr. Joe wanted to return to his cell because there were no seats outside and he could not stand for a long time in the sun. Zengotita says he was helping Mr. Joe back into the building when Corrections Officer Davis ordered him back into the recreation yard. He says he tried to explain the situation to Officer Davis, but she repeatedly yelled at him to go back outside. According to Officer Davis's disciplinary report, Zengotita then said to her: "You better stop yelling at me. You better watch yourself."
Zengotita does not deny saying those words, but he says that Officer Davis then asked him what he meant, and he said if she did not stop yelling at him, "he would write her up." According to Zengotita, Mr. Joe witnessed the exchange.
Officer Davis called for assistance, and Zengotita was removed from the recreation yard and charged with disciplinary infraction *.005, threatening another with bodily harm or with an offense against his or her person, in violation of N.J.A.C. 10A:4-4.1(a). At his disciplinary hearing on August 12, 2013, Zengotita had the assistance of a prison paralegal as counsel substitute. According to the hearing officer's report of the proceedings, Zengotita "declined" to provide the name of any witness in his defense, but Zengotita claims he told both his counsel substitute and the hearing officer that he wished to have Mr. Joe's testimony in his defense for the hearing.
The hearing officer found Zengotita guilty of the disciplinary infraction without calling Mr. Joe to testify or obtaining a statement from him. The hearing officer recounted the evidence as the words reported by Officer Davis. The hearing officer concluded: "Words are a threat & would cause fear," and added that Zengotita "provides no evidence to support defense." The hearing officer sentenced Zengotita to ten days detention, 210 days administrative segregation, and 210 days loss of commutation time.
A preliminary incident report completed by a lieutenant reported the alleged words of the threat as "You better stop yelling at me. You better watch your back." However, the hearing officer did not rely on that version and repeated Officer Davis's actual accusation: "You better stop yelling at me. You better watch yourself."
On appeal, Zengotita argues his procedural due process rights were violated because the hearing officer did not attempt to obtain testimony or a statement from Mr. Joe, as he requested, and because his counsel substitute signed an inaccurate report of the proceedings without his knowledge indicating that he had declined to call any witnesses.
Our scope of review of prison disciplinary matters is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). We will defer to the agency's conclusions so long as the decision is not arbitrary or capricious and is supported by substantial credible evidence. Ibid. "We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record." Johnson v. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005).
Zengotita alleges violation of the protections afforded to inmates facing disciplinary hearings. See Avant v. Clifford, 67 N.J. 496, 525-39 (1975); see also Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S. Ct. 2963, 2978-79, 41 L. Ed. 2d 935, 955-56 (1974) (federal constitutional rights of inmates). The due process rights of New Jersey inmates include: (1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-39. Zengotita alleges violations of the third and sixth listed rights.
Zengotita also challenges the adequacy of the evidence, arguing that the accusation made by Officer Davis was insufficient to find he had threatened her with bodily harm or any offense against her person. The Court in Avant held that disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.
The DOC's responding brief before us does not directly answer Zengotita's claim that he sought testimony or a statement from Mr. Joe and his counsel substitute improperly signed the report of the proceedings. Because Zengotita and Officer Davis did not dispute the contents of the original words used by Zengotita, the relevant evidence that might have been within the knowledge of Mr. Joe is whether Zengotita explained to the officer that all he meant was he would "write up" her alleged mistreatment of him, which we understand to mean he would file a formal complaint with her superiors. If that evidence were to be provided by Mr. Joe, it might support Zengotita's defense that his stating "[y]ou better watch yourself" was not meant as a threat of bodily harm or harm to Officer Davis's person.
Neither the record of the administrative proceedings nor the DOC's brief says anything about whether an inmate known as Mr. Joe may in fact have heard the exchange and, if so, why he was not questioned. Because the record is insufficient for us to review the claims of procedural due process violations, we remand to the DOC for further proceedings. The DOC may explain why a statement was not sought from the alleged inmate witness and may also determine whether counsel substitute in fact falsely acknowledged that Zengotita had declined to name any witnesses. If the DOC determines that Zengotita did request Mr. Joe's participation in the hearing, we leave it to the DOC to determine whether Mr. Joe is still a viable witness almost two years after the incident.
We make no decision in this opinion that the words concededly said by Zengotita were or were not a threat if they were in fact followed by the explanation provided by Zengotita. We leave that conclusion to be made initially by the prison disciplinary process, together with an adequate explanation of the DOC's further findings.
Remanded for further administrative proceedings. We do not retain jurisdiction.
We also make no decision here as to whether the appeal is moot if Zengotita has completed his three-year sentence.
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I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION