Opinion
DOCKET NO. A-2503-12T2
07-16-2014
RAYSHAWN MARSHALL, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Rayshawn Marshall, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, 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NOT FOR PUBLICATION WITHOUT THE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.
Rayshawn Marshall, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Shirley P. Dickstein, Deputy Attorney General, on the brief). PER CURIAM
Inmate Rayshawn Marshall appeals a December 21, 2012 determination, after administrative proceedings, by an assistant superintendent of the Department of Corrections (DOC), upholding an adjudication that he committed prohibited acts *.002, assaulting any person, and .402, being in an unauthorized area, in violation of N.J.A.C. 10A:4-4.1(a). He contends that the adjudication was not based on sufficient evidence and violated his procedural rights, that his counsel substitute should have requested a polygraph, and that the assistant superintendent's review was improper. We disagree and affirm.
I.
Marshall is incarcerated at South Woods State Prison. At the time relevant to this appeal, Marshall was incarcerated at Bayside State Prison Farm.
On December 8, 2012, Officer MacFarland entered a room in Cottage 13 and saw inmate Michael Tatum place something small and dark under his bedding. When the officer pulled back the bedding, he discovered a cell phone. Marshall, who was seated in a chair in the room, stood up and threw MacFarland against the wall. As Marshall ran from the room, MacFarland called for officer assistance. Several officers, including Officer Robinson, responded to the call and, after the scene was secured, Robinson told MacFarland that he saw Marshall run from Cottage 13 to the back of Barrack 1. MacFarland went to Barrack 1 where he identified Marshall as the inmate who was present in Cottage 13 and who had thrown him against the wall. Marshall was not authorized to be in Cottage 13.
Marshall was charged with disciplinary infractions, *.002, assaulting any person, and .402, being in an unauthorized area. An investigation of the charges was undertaken by Sgt. Hugues, who prepared a written report. Marshall requested the assistance of counsel substitute, which was granted. Marshall stated that he was pleading not guilty and named inmate Tatum as a witness. Tatum provided a written inmate statement, which simply stated, "wasn't him."
A disciplinary hearing was scheduled for December 13, 2012, but was postponed twice to obtain witness statements, and the hearing concluded on December 17. Marshall provided a written statement that he was never in Cottage 13 on the day of the incident and also provided Tatum's "wasn't him" written statement. Marshall stated that he did not assault MacFarland and further that MacFarland misidentified him.
Marshall's counsel substitute asserted that Marshall was not detected on the institution's camera system and further, if he had been running across the barracks, he should have been "tackled down." He further contended that the evidence did not support the charges and specifically that MacFarland's medical report did not support the assault charge.
On December 17, the hearing officer found Marshall guilty of assaulting MacFarland and being in an unauthorized area. The hearing officer relied on MacFarland's report stating that he went to Cottage 13 and that Marshall slammed him against the wall and ran out of the cottage. The hearing officer noted that the cottage was not a locked down secure facility and that Robinson observed Marshall run from Cottage 13 to Barrack 1. He further noted that Robinson did not apprehend Marshall because he was responding to the officer assistance called in by MacFarland. Once the situation was under control, Robinson informed MacFarland that he saw Marshall run from Cottage 13 to Barrack 1, and then MacFarland toured Barrack 1 and identified Marshall as the person who assaulted him. The hearing officer further found that there was no camera footage of the incident.
Marshall was sanctioned with fifteen days detention, 180 days loss of commutation time, and 180 days administrative segregation for the *.002 charge. The .402 charge sanctions were combined with the *.002 charge sanctions.
Marshall appealed the decision, asserting that the guilty findings were not based on substantial evidence. Assistant Superintendent Schultheis upheld the decision of the hearing officer and the imposition of the sanctions. It is from that decision that Marshall appeals.
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, 202 (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. Here, there is substantial credible evidence of appellant's guilt. Appellant was identified by both MacFarland and Robinson as being in Cottage 13, an unauthorized area. Further, shortly after the incident, MacFarland identified Marshall as the person who assaulted him.
We are also satisfied that the administrative adjudication comported with procedural due process. See Avant, supra, 67 N.J. at 521-22; McDonald, supra, 139 N.J. at 194-95. Appellant timely received notice of the charges. A DOC officer thoroughly investigated the matter and prepared a report. Appellant was afforded counsel substitute and an impartial hearing, at which time he was granted the opportunity to confront or cross-examine adverse witnesses. He was also free to call witnesses on his behalf. He submitted a written statement from Tatum.
Finally, appellant complains that his counsel substitute should have requested a polygraph examination. Marshall could have made the request himself, but he did not. Therefore, his contention is without any merit. We note that even if a request had been made, an inmate does not have an unconditional right to a polygraph. See Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). The applicable regulation, N.J.A.C. 10A:3-7.1, "is designed to prevent the routine administration of polygraphs, and a polygraph is clearly not required on every occasion that an inmate denies a disciplinary charge against him." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 23-24 (App. Div. 2005). A request should be granted only "when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Id. at 20.
We conclude that there was substantial credible evidence to support the findings of guilt and that the adjudication comported with procedural due process.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION