Opinion
DOCKET NO. A-4704-11T1
06-12-2014
CARLOS DIAZ, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Carlos Diaz, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Erin M. Greene, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges St. John and Leone.
On appeal from the New Jersey Department of Corrections.
Carlos Diaz, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Erin M. Greene, Deputy Attorney General, on the brief). PER CURIAM
Inmate Carlos Diaz appeals from an order by an associate administrator (Administrator) of the Department of Corrections upholding an adjudication imposing disciplinary sanctions. He contends that the adjudication was not based on sufficient evidence and violated his procedural rights, and that the Administrator's review was improper. We affirm.
I.
Diaz is incarcerated at Northern State Prison. On March 4, 2012, Officer Berry prepared a Form 259 disciplinary report charging defendant with "assaulting any person" in violation of N.J.A.C. 10A:4-4.1(a), Prohibited Act *.002. The disciplinary report made the following accusations. On March 3, 2012, Berry witnessed inmate Carabello striking inmate Perez in Barracks 5. Diaz assisted in striking Perez and forcing him into a utility closet. Carabello fled to the rear of the barracks and was apprehended by Sergeant Miller. Diaz ran out the front door, "and was later apprehended in the cottages and identified." Sergeant Ryan conducted an investigation and completed the investigation page of the disciplinary report.
The disciplinary report itself was not evidence. Rather, it was an accusation giving Diaz notice of the basis for the charge. N.J.A.C. 10A:4-9.1(a). That report was not listed as being in evidence at either hearing. See N.J.A.C. 10A:4-9.15(b).
The first adjudication began on March 7, 2012. It was postponed to allow Diaz to appear as a witness and obtain a witness statement from Perez, and to permit a special report from Officer Wilson, whom Diaz believed would support Diaz's version. The prison presented several statements and reports, including reports from Sergeant Miller and Officer Wilson.
Miller's reports stated that Berry said Perez was assaulted by Caraballo and an "unidentified" person who ran out the front door, and that "Berry provided a description of the inmate [who] was positively identified as inmate Diaz." Officer Wilson's report stated that he did not see which inmates were involved.
Diaz denied any involvement in the assault. He testified he was just picking up socks from Barracks 3 and was returning to the cottages. Diaz presented witness statements from inmate Carter, who disclaimed knowledge of the incident, and Perez, who claimed Diaz was not around during the fight.
On March 14, the initial Disciplinary Hearing Officer (DHO) found Diaz guilty of assault, and gave a garbled restatement of the evidence. Diaz appealed, claiming the result was against the weight of the evidence. He argued that "the officer [Berry] who wrote the charge did not identify Mr. Diaz," that Berry said the second suspect was unidentified, and that Berry never said he saw Diaz strike anyone.
The DHO stated that "Berry reports that he observed I/M [inmate] Caraballo hit I/M Perez on the head while on the phone. As I/M Caraballo was attempting to shield himself I/M Perez was also striking I/M Diaz forcing him into the utility room." Diaz states the DHO's statement "did not even provide a factual summary of events."
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On March 19, the Administrator rescinded the initial hearing officer's decision and "remanded back to conduct a new re-hearing and another opportunity to appeal." The Administrator stated that "[f]urther investigation is required to show just cause and to provide sufficient evidence to support the charge, as there is no confidential information or evidence provided to show inmate was positively identified by any staff member of being involved in the alleged assault on inmate Perez."
On March 30, the new hearing was conducted before a new DHO. In addition to the prior evidence, the prison submitted a special report prepared by Berry on March 23, stating that he "had a visual" of Diaz at the time of the incident, then identified Diaz through his mugshot from the "STG Board," and then "fully identified him in person."
Diaz resubmitted the two inmate statements. He again testified, denied involvement, and added that after the assault an officer took his identification and said, "yea, it was him."
The new DHO found Diaz guilty of assault. The DHO relied on the staff reports, particularly Berry's special report. The DHO found that Berry witnessed Diaz strike Perez and assist in forcing Perez into a utility closet, that Diaz was unidentified and ran from the barracks, and that Berry later identified Diaz using the STG board and then identified Diaz in person. The DHO discounted Perez's denial, stating the inmate could not give an accurate account without fear of reprisal.
Diaz again appealed. The Administrator found the decision supported by substantial evidence. Diaz appeals to this court.
II.
"'Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.'" Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951 (1974)). The inmate's more limited procedural rights, initially set forth in Avant v. Clifford, 67 N.J. 496, 525-46 (1975), are codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-9.1 to -9.28. Those regulations "strike the proper balance between the security concerns of the prison, the need for swift and fair discipline, and the due-process rights of the inmates." Williams v. Dep't of Corr., 330 N.J. Super. 197, 203 (App. Div. 2000) (citing McDonald v. Pinchak, 139 N.J. 188, 196-99 (1995)).
The DOC regulations require that "[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); see Jacobs v. Stephens, 139 N.J. 212, 222 (1995); Avant, supra, 67 N.J. at 530. Similarly, an inmate may appeal whether the decision "was based upon substantial evidence." N.J.A.C. 10A:4-11.4(e)(2). "'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).
"Our role in reviewing the decision of an administrative agency is limited." Id. at 190. "We defer to an agency decision and do not reverse unless it is arbitrary, capricious or unreasonable or not supported by substantial credible evidence in the record." Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). Nonetheless, we must "engage in a 'careful and principled consideration of the agency record and findings.'" Williams, supra, 330 N.J. Super. at 204. We must hew to that standard of review.
III.
Diaz argues that the adjudications were not supported by substantial evidence. We disagree. In the first adjudication, Miller's reports provided evidence of Berry's statements that two inmates assaulted Perez, that one inmate ran out of the front door, and that "Berry provided a description of the inmate [who] was positively identified as" Diaz. A prison disciplinary adjudication may be based solely on hearsay. Negron v. N.J. Dep't of Corr., 220 N.J. Super. 425, 432-33 (App. Div. 1987); see Gerardo v. N.J. State Parole Bd., 221 N.J. Super. 442, 453 (App. Div. 1987).
Diaz notes that when he appealed the first adjudication, the Administrator ruled that further investigation was required to provide sufficient evidence to support the charge because there was no evidence provided to show that Diaz was positively identified by any staff member as being involved in the assault on Perez. We read the Administrator's ruling as referring to the absence of any clear indication in Miller's reports of who positively identified Diaz. The Administrator rescinded the initial decision, and remanded for a new hearing.
Diaz contends no new evidence was provided in the second hearing, and "the sanctions were upheld with the very same lack of evidence." In fact, at the second hearing, Berry's special report established that Berry had seen Diaz at the time of the incident, identified him through his mugshot, and then identified him in person. This new report combined with the existing evidence provided ample evidence to support the charge.
To the extent that Diaz challenges the Administrator's ability to rescind and remand, we find the Administrator's action was neither arbitrary nor capricious. The regulations state that, at the conclusion of the Administrator's "review of an appeal, one of the following actions shall be taken." N.J.A.C. 10A:4-11.5(a). Under the first option, the Administrator "shall rescind the decision . . . if the review and/or investigation indicates that the evidence fails to demonstrate that any violation was committed." N.J.A.C. 10A:4-11.5(a)(1). That was not the case here, where the evidence at the first hearing was sufficient to show that Perez was assaulted and that Diaz was identified as one of the perpetrators.
Under the second, more pertinent option, the Administrator "shall rescind the original decision and order a new hearing if the review and/or investigation indicates that procedural safeguards prescribed for inmate disciplinary hearings were not followed, or if new evidence not available at the original hearing is revealed." N.J.A.C. 10A:4-11.5(a)(2). Here, although neither Miller's reports nor Berry's disciplinary report named who had positively identified Diaz, the materials before the Administrator "raise[d] the question of whether there may be new evidence . . . that may bear on the issue." See Fisher v. Hundley, 240 N.J. Super. 156, 160-62 (App. Div. 1990) (invoking N.J.A.C. 10A:4-11.5(a)(2) where a newspaper clipping attached in the administrative appeal described an affidavit suggesting that confidential information had become public).
Specifically, investigator Ryan's report stated that "Berry witnessed I/M Diaz assault I/M Perez. He also provided a description of the I/M then positively identified him." This raised the question of whether there was new evidence on the issue raised by the Administrator, namely, who positively identified Diaz. On remand, further investigation resulted in Berry preparing a special report confirming that he had positively identified Diaz. Diaz does not dispute that this special report, which was not prepared until after the initial hearing, was "new evidence not available at the original hearing" under N.J.A.C. 10A:4-11.5(a)(2). Accordingly, the Administrator could choose the second option, rescind the decision, and order a new hearing.
"Prisons are dangerous places," and "[d]isciplinary proceedings take place in a highly charged atmosphere where prison officials must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances." Russo v. N.J. Dept. of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999) (quotation marks omitted). Here, it was not arbitrary and capricious for the Administrator to rescind the decision against Diaz, remand for further investigation, and give Diaz a new hearing and appeal.
In Russo, we found that gambling charges against an inmate were not barred by his acquittal on other gambling charges based on the same search. Id. at 579-80. We reasoned that "[i]f an acquittal in a prior hearing were to preclude a subsequent hearing on the same charge, 'the overriding interest of prison administrators to act swiftly to maintain institutional order could be compromised in the interest of developing the evidence needed to obtain a conviction.'" Id. at 584. Similarly, the initial finding that Diaz was guilty of assault should not preclude the administrator from rescinding that finding and remanding for a new hearing under N.J.A.C. 10A:4-11.5(a)(2) to determine who identified Diaz and whether the perpetrator of the assault had in fact been charged. As in Russo, to rule otherwise could compromise the ability of prison administrators to act swiftly to maintain institutional order.
Diaz next raises a series of procedural and evidentiary claims. He asserts that a report was fabricated, that Berry submitted inconsistent reports, that the mug shot may have been suggestive, and that he was not permitted to rebut the fabricated evidence. We note, however, that in both hearings Diaz was offered the opportunity to confront and cross-examine the witnesses whose reports were introduced against him, but declined to do so. See N.J.A.C. 10A:4-9.14. Diaz also contends that he was not permitted to present a defense, but he was permitted to testify, to submit inmate statements, and to have a counsel substitute who presented arguments on Diaz's behalf. See N.J.A.C. 10A:4-9.12, -9.13. Diaz also asserts he could not be guilty of assault if he was not guilty of disrupting the correctional facility. Finally, Diaz's reply brief asserts that the postponements of the first hearing were not "reasonable postponements." N.J.A.C. 10A:4-9.8(b). We find these arguments, and Diaz's other arguments, to be without sufficient merit to warrant further discussion. See R. 2:11-3(e)(2).
Finally, Diaz challenges "[w]hether the sanction imposed was proportionate to the offense in view of the inmate's recent disciplinary history and present custody status." N.J.A.C. 10A:4-11.4(e)(3). Diaz participated in an assault that lacerated Perez's head. To deter such assaults, the initial DHO imposed fifteen days of detention, 250 days of administrative segregation, and the loss of 250 days of commutation time. The new DHO upheld those sanctions, which the Administrator found to be proportionate to the offense.
Diaz argues that these sanctions, particularly "the parole hit," are disproportionate because he was never properly identified. However, the evidence, particularly in the second hearing, was sufficient to show he was properly identified. The administrative segregation and loss of commutation time were below the one-year maximum permitted by regulation. See N.J.A.C. 10A:4-5.1(a). We cannot say the sanctions were 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