DARIUS H. GITTENS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2021 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-3008-19
    DARIUS H. GITTENS,
    Appellant,
    v.
    NEW JERSEY DEPARTMENT
    OF CORRECTIONS,
    Respondent.
    Submitted May 19, 2021 – Decided June 10, 2021
    Before Judges Fuentes and Rose.
    On appeal from the New Jersey Department of
    Corrections.
    Wronko Loewen Benucci, attorneys for appellant
    (Michael Poreda, of counsel and on the briefs).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Melissa H. Raksa, Assistant Attorney
    General, of counsel; Christopher C. Josephson, Deputy
    Attorney General, on the brief).
    PER CURIAM
    Darius H. Gittens, an inmate at Bayside State Prison (BSP) appeals from
    a February 19, 2020 final agency decision of the New Jersey Department of
    Corrections (DOC), which upheld an adjudication and sanctions for committing
    prohibited act *.102, attempting or planning an escape, in violation of N.J.A.C.
    10A:4-4.1(a)(1)(xiii). We affirm.
    On December 17, 2019, F-Housing Unit (F-Unit) Officer Raimon Ng
    conducted a routine search of Gittens's cell and seized documents from his
    locked footlocker. The documents detailed personal information regarding DOC
    employees, including their full names, salaries, work schedules, overtime, and
    potential family members. Ng notified Sergeant Ryan Pepper, who thereafter
    searched Gittens's cell. Pepper confiscated detailed maps of the secured areas
    in the prison, the trailer area, the F-Unit, the cells located within the unit, DOC
    internal management procedures, and "dimensions of fences" surrounding the
    prison. Pepper also seized documents containing "information related to when
    doors were opened, how long they were opened, when stand[-]up counts were
    called, where metal detectors were located, where frisk shacks were located, and
    numerous distances and measurements of areas within the jail."
    A-3008-19
    2
    On December 19, 2019, Gittens was served with the charge at issue 1 and
    pled not guilty. Gittens also requested and was granted counsel substitute. The
    hearing scheduled that same day was postponed to consider Gittens's request for
    a polygraph examination.        Gittens sought a polygraph examination to
    demonstrate he lacked the intent to escape and that the evidence confiscated
    from his cell was "taken out of context." A DOC administrator denied the
    request finding "there is no extenuating 'issue of credibility' which wo uld
    substantiate a polygraph examination. This is supported by a previous rule
    violation and subsequent sanction." The administrator concluded "[t]here [wa]s
    sufficient evidence presented, including [c]ustody reports and testimony" for the
    hearing officer to make a credibility determination.
    On December 31, 2019, Gittens submitted a second polygraph request.
    Gittens explained that the "previous rule violation" cited by the administrator
    was a prison "escape[] for a few hours" as "a tag along, with [two] other inmates"
    1
    In his December 17, 2019 incident report, Pepper indicated that in addition to
    the charge for prohibited act *.102, attempting or planning an escape, Gittens
    "receiv[ed] a *.360 [charge] for unlawfully obtaining or seeking to obtain
    personal information pertaining to . . . DOC staff or other law enforcement staff
    or the family of said staff" and "a *.210 [charge for] possession of anything not
    authorized for retention or receipt by an inmate or not issued to him or her
    through regular correctional facility channels." It does not appear from the
    record on appeal that Gittens was charged with prohibited act *.360 or *.210.
    A-3008-19
    3
    that occurred thirty-three years ago. Gittens also contended there was new
    evidence available, including a security recording that showed Pepper and Ng
    reading Gittens's "diary" logbook. Claiming Pepper tore out pages out of the
    logbook to present at the hearing and the remainder of the logbook was "gone,"
    Gittens contended a polygraph examination was necessary to reveal his
    "subjective intention."
    Again, the DOC administrator denied the request, concluding the hearing
    officer possessed sufficient evidence to determine credibility. Quoting N.J.A.C.
    10A:3-7.1(b), the administrator noted a "polygraph shall not be used in place of
    a thorough investigation, but shall be used to assist an investigation when
    appropriate."   According to the administrator, Gittens "possessed various
    documents handwritten by [him]self, along with numerous printed documents
    containing sensitive information which are not suitable for retention and pose a
    safety and security risk to the orderly operation of the correctional facility."
    Gittens's request for confrontation with Pepper and Ng was granted.
    Although Gittens was given the opportunity to present witnesses on his behalf
    at the hearing, he declined to do so.
    On January 3, 2020, the hearing officer issued a written decision,
    concluding "[a] reasonable person would believe the totality of drawings,
    A-3008-19
    4
    sketches and information would be information to aid in an escape. Evidence
    supports the charge."    In reaching her decision, the hearing officer noted
    Gittens's "history of escape," which Gittens himself acknowledged, and his
    "experience in tampering with locking devices." The hearing officer found that
    Gittens "shows no remorse for his self-fulfilling actions and refuses[d] to cease
    his actions despite being advised that in the harsh reality of prison culture his
    actions must be viewed as dangerous and against policies."
    The hearing officer elaborated:
    Gittens admits to possession of said drawings, maps
    and security details. His defense that information was
    obtain[ed] for alternate reasoning is not supported and
    is irrelevant. [Gittens]'s intent is irrelevant if he
    possessed items that would aid in and [are] consistent
    with planning an escape. Inmates are responsible for
    what they possess. A reasonable person would know
    that you are not allowed to log and dictate every detail
    of the security of the prison. . . . Gittens['s] role is of
    an inmate, his role is not to police the police, nor
    investigate the [DOC], . . . Gittens must comply with
    the written rules of his position as an inmate.
    The hearing officer imposed the following sanctions:                 180-day
    administrative segregation as a Category A offense pursuant to N.J.A.C. 10A:4-
    5.1(e); ninety-day loss of commutation time; ten-day loss of recreation
    privileges; and confiscation of all documents pertaining to the offense.
    A-3008-19
    5
    Gittens's administrative appeal was denied. The DOC, acting through the
    assistant superintendent, upheld the hearing officer's decision, finding
    there was compliance with the New Jersey
    Administrative Code on inmate discipline, which
    prescribes procedural safeguards, and the charges were
    adjudicated accordingly.        The preponderance of
    evidence presented supports the decision of the hearing
    officer and the sanction(s) [sic] rendered is appropriate.
    Based on the information as presented there is no
    apparent misinterpretation of the facts. No leniency
    will be afforded to [Gittens]. Uphold all sanctions.
    This appeal followed.
    On appeal, Gittens contends the "hearing officer's opinion was arbitrary
    and capricious and not supported by substantial evidence." Gittens maintains
    he never intended to utilize the documents to plan his escape. Instead, Gittens
    claims "[h]e began meticulously chronicling the conditions at the prison in
    diaries both for the purposes of writing a book about the psychological impact
    caused by prison design and also for the purposes of filing complaints and
    litigation." At sixty years old and in poor health, Gittens claims he is physically
    unable to escape.
    More particularly, he raises the following points for our consideration:
    I.    Gittens was not on fair notice that he could be
    punished simply for sketching maps of the prison.
    (Not raised below).
    A-3008-19
    6
    II.   A finding that an inmate planned an escape
    without considering the inmate's intent is arbitrary and
    capricious.
    III. Suppression of all evidence in Gittens's favor
    rendered the procedur[e] fundamentally unfair and the
    decision arbitrary and capricious.
    IV. The [h]earing [o]fficer's reliance on Gittens's
    history of escape was improper under the regulations.
    (Not raised below).
    V.    Gittens's confrontation with prison officers
    regarding stolen mail, and the [h]earing [o]fficer's
    obvious bias against Gittens, demonstrate that the
    [h]earing [o]fficer's decision and the underlying charge
    were retaliatory.
    (Not raised below).
    Our scope of review of an agency decision is limited. In re Stallworth,
    
    208 N.J. 182
    , 194 (2011); Malacow v. N.J. Dep't of Corr., 
    457 N.J. Super. 87
    ,
    93 (App. Div. 2018).        Reviewing courts presume the validity of the
    "administrative agency's exercise of its statutorily delegated responsibilities."
    Lavezzi v. State, 
    219 N.J. 163
    , 171 (2014). "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). "'Substantial evidence'
    means 'such evidence as a reasonable mind might accept as adequate to support
    A-3008-19
    7
    a conclusion.'" Figueroa v. N.J. Dep't of Corr., 
    414 N.J. Super. 186
    , 192 (App.
    Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 
    35 N.J. 358
    , 376 (1961)).
    As we have long recognized, "[p]risons are dangerous places, and the
    courts must afford appropriate deference and flexibility to administrators trying
    to manage this volatile environment." Russo v. N.J. Dep't of Corr., 
    324 N.J. Super. 576
    , 584 (App. Div. 1999). A reviewing court "may not substitute its
    own judgment for the agency's, even though the court might have reached a
    different result." Stallworth, 208 N.J. at 194 (quoting In re Carter, 
    191 N.J. 474
    ,
    483 (2007)). "This is particularly true when the issue under review is directed
    to the agency's special 'expertise and superior knowledge of a particular field.'"
    Id. at 195 (quoting In re Herrmann, 
    192 N.J. 19
    , 28 (2007)).
    However, our review is not "perfunctory," nor is "our function . . . merely
    [to] rubberstamp an agency's decision[.]" Figueroa, 
    414 N.J. Super. at 191
    (citation omitted).   "[R]ather, our function is 'to engage in a careful and
    principled consideration of the agency record and findings.'" 
    Ibid.
     (quoting
    Williams v. Dep't of Corr., 
    330 N.J. Super. 197
    , 204 (App. Div. 2000)). It is
    well settled that an agency's "interpretation of the law and the legal
    consequences that flow from established facts are not entitled to any special
    A-3008-19
    8
    deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    Pursuant to N.J.A.C. 10A:4-4.1(a):
    An inmate who commits one or more of the
    following numbered prohibited acts shall be subject to
    disciplinary action and a sanction that is imposed by a
    Disciplinary Hearing Officer . . . . Prohibited acts
    preceded by an asterisk (*) are considered the most
    serious and result in the most severe sanctions . . . .
    Prohibited acts are further subclassified into five
    categories of severity (Category A through E) with
    Category A being the most severe and Category E the
    least severe.
    A Category A offense, including prohibited act *.102, attempting or
    planning an escape, "shall result in a sanction of no less than 181 days and no
    more than 365 days of administrative segregation per incident." A hearing
    officer's finding that an inmate committed a prohibited act must be supported by
    "substantial evidence." N.J.A.C. 10A:4-9.15(a).
    Applying these standards to the present matter, we discern no basis to
    disturb the DOC's decision. Gittens was afforded due process and there was
    substantial credible evidence in the record to support the finding of guilt. The
    sanctions were commensurate with the severity of the infraction and authorized
    under N.J.A.C. 10A:4-5.1(e) for an asterisk offense, which "are considered the
    most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).
    A-3008-19
    9
    Moreover, we have considered and reject Gittens's assertion that he was
    denied due process. Although inmates are not entitled to the same due process
    protections as criminal defendants, they are guaranteed certain limited
    protections. See McDonald v. Pinchak, 
    139 N.J. 188
    , 194 (1995); Avant v.
    Clifford, 
    67 N.J. 496
    , 523 (1975).
    Here, Gittens was given written notice of the charge at least twenty-four
    hours before the hearing was originally scheduled 2; provided with counsel
    substitute; offered an opportunity to call and confront witnesses; and received a
    written statement of the evidence relied upon and the reasons for the discipline.
    Notwithstanding Gittens's assertion that he was denied the opportunity to call
    Investigator Donna Alexander, his counsel substitute attested to the veracity of
    the adjudication report, which stated Gittens declined the opportunity to present
    the testimony of witnesses at the hearing. We therefore find nothing in the
    record to suggest the hearing officer's determination was arbitrary, capricious,
    or unreasonable.
    Nor are we persuaded by Gittens's argument that he was improperly
    denied the opportunity to take a polygraph examination.          We have long
    2
    The hearing was held on January 3, 2020, following multiple postponements
    to address Gittens's requests for confrontation of officers and a polygraph
    examination, and to permit the hearing officer to review the record.
    A-3008-19
    10
    recognized an inmate does not have the right to a polygraph test to contest a
    disciplinary charge. Johnson v. N.J. Dep't of Corr., 
    298 N.J. Super. 79
    , 83 (App.
    Div. 1997). "An inmate's request for a polygraph examination shall not be
    sufficient cause for granting the request." N.J.A.C. 10A:3-7.1(c). Indeed,
    N.J.A.C. 10A:3-7.1(c) "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 "prison administrator's determination
    not to give a prisoner a polygraph examination is discretionary and may be
    reversed only when that determination is 'arbitrary, capricious or unreasonable.'"
    Id. at 24. "[A]n inmate's right to a polygraph is conditional and the request
    should be granted 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.
    In the present matter, the administrator determined all issues raised by
    Gittens could be decided by the hearing officer. Notably, the administrator did
    not reference any issues of credibility raised in either of Gittens's requests. That
    is because Gittens never denied possessing the documents. Instead, he sought a
    polygraph examination to demonstrate he lacked the requisite intent to plan an
    A-3008-19
    11
    escape and intended to use the documents for legitimate purposes. But the
    hearing officer expressly rejected Gittens's explanation, finding his "alternate
    reasoning [wa]s not supported and [wa]s irrelevant" here, where he possessed
    documents that "log[ged] and dictate[d] every detail of the security of the
    prison."
    Finally, we note Gittens failed to raise the arguments asserted in points I,
    IV and V before the hearing officer. "Normally, we do not consider issues not
    raised below at an administrative hearing." In re Stream Encroachment Permit,
    
    402 N.J. Super. 587
    , 602 (App. Div. 2008) (citing Bryan v. Dep't of Corr., 
    258 N.J. Super. 546
    , 548 (App. Div. 1992)); see also Zaman v. Felton, 
    219 N.J. 199
    ,
    226-27 (2014). Although Gittens has not advanced any such interests in support
    of the arguments framed in these points, we have considered his belated
    contentions and conclude they lack sufficient merit to warrant discussion in a
    written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    A-3008-19
    12