RANDY B. ROSENBLATT VS. VINCENT STRIPTO, ESQ. (L-12-13, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0717-15T3
THOMAS CLAUSO,
Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Respondent.
__________________________________
Telephonically Argued January 5, 2017 –
Decided March 14, 2017
Before Judges Ostrer and Leone.
On appeal from the New Jersey Department of
Corrections.
Thomas Clauso, appellant, argued the cause pro
se.
Kevin J. Dronson, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney; Lisa
A. Puglisi, Assistant Attorney General, of
counsel; Mr. Dronson, on the brief).
PER CURIAM
Thomas Clauso, at relevant times a prisoner at East Jersey
State Prison, appeals from a Department of Corrections
(Department) disciplinary decision. A hearing officer found that
Clauso committed prohibited act *.005, "threatening another with
bodily harm or with any offense against his or her person or his
or her property." N.J.A.C. 10A:4-4.1(a). The Administrator upheld
the decision after an administrative appeal. We affirm.
Clauso disclosed the threat in a prison-monitored telephone
conversation with his wife on April 7, 2015. The target was a
member of the New Jersey Judiciary, who had been a prosecutor in
an earlier case involving Clauso. Clauso provided context for the
threat in his brief on appeal. In 1988, Clauso was sentenced to
life in prison, with a twenty-five-year mandatory minimum term.1
He alleged that the former prosecutor had links to the judge, now
deceased, who presided over his trial and sentenced him. He
contended the trial judge should have recused himself. In the
recorded conversation, Clauso told his wife that he had written a
threatening letter to a judge, apparently referring to the former
prosecutor:
Wife: What happened?
1
The record states the life sentence was imposed for criminal
attempt, N.J.S.A. 2C:5-1, to violate an "uncoded chapter" of law.
He was simultaneously sentenced to five years for possessing a
weapon, N.J.S.A. 2C:39-5; ten years for doing so with an unlawful
purpose, N.J.S.A. 2C:39-4; and five years for aggravated assault,
N.J.S.A. 2C:12-1.
2 A-0717-15T3
Clauso: I mailed that S___2
Wife: Do you think you are going to threaten
an attorney?
Clauso: I ain't threatening no attorney. I'm
threatening the judge.
Clauso then stated he had written to the judge "on and off for the
last four months." Using coarse language, he said he did not care
"what none of you . . . out there, none of you, do." His
threatening comments continued:
Clauso: I ain't living on my knees no more. I
ain't going to worry about this S___
Wife: Do your paralegals agree with this
Clauso: These MF don't want to admit they are
wrong. You have to put fire under them.
Wife: What are you saying to these people
Clauso: I told you. I already wrote it. I
told him flat out. This MF____ had no right
hearing my case. I said you're not
untouchable M_F_. Just like you don't give a
F___ about me or my family, my children,
grandchildren, nobody. I don't give a F___
about you or yours. Keep it the F__ up, Keep
F---g with me. I said I told you Judge for
the last G_D F____g time. I got people . . .
I can call to come see your Punk A___. Yeah
oh yeah. I don't give a F___ about a
threatening charge
Clauso then told his wife that he expected he would be
released by the summer, his sentence could not be extended for a
2
The redactions are in the transcript.
3 A-0717-15T3
threatening charge, and he could "handle this in lock up." His
wife told him he was making things worse. Clauso replied it did
not matter, because he already mailed the letter. His wife said,
"You can't threaten people[.]" Clauso replied, "So what? They
are lucky I ain't out and get a gun. If I had a gun I would kill
them all." Later in the conversation, Clauso said, "NO one is
untouchable. Everyone is touchable." He added, "I'll take the
stupid M--F--r out and the other one will say Jesus Christ, he
meant what he said. The State Police will come and I will tell
them to their face, I'll have you F------g Whacked!"
A disciplinary report issued three days later alleged a
violation of *.005. It stated, "As a result of monitoring inmate
Clauso's telephone conversations, it was discovered that he has
threatened a life" of the judge "numerous times during the 4-7-
2015 conversations." Clauso pleaded not guilty. He requested a
postponement at the first hearing date, which was granted. Clauso
then went on a hunger strike and was hospitalized. As a result,
the adjudicatory hearing was delayed until August 2015, when the
facility staff determined he was medically and psychologically fit
to attend.
Clauso refused to attend the August hearing. He told the
officers who visited his cell to escort him to the hearing, "I'm
not participating in nothing. I ain't got to say nothing to you.
4 A-0717-15T3
Get out of here." The hearing officer considered a statement by
Clauso in June 2015, "I am not saying I didn't make threats. They
are going to let me go one way or another." The hearing officer
also identified a confidential mental health evaluation, which
cleared Clauso for the hearing. The items of evidence introduced
against Clauso included an audio tape, which is not in the
appellate record; the transcript of excerpts of Clauso's
conversation with his wife, which we have quoted; various shift
reports; and a record of the multiple postponements because of
Clauso's hunger strike and medical monitoring. Also considered
was a provocative March 24, 2015 letter Clauso wrote to a federal
judge.3
3
The United States Marshal's report of the letter apparently
preceded the monitoring of Clauso's telephone conversations. We
gather the federal judge was presiding over an application by
Clauso. Among other things, Clauso wrote:
[D]o you want me to threaten to kill someone?
or Blow something up so I can get a hearing?
. . . .
Are all of you Stupid? Nuts[?] [S]cared?
[W]hat is it?
. . . .
Your Honor if you['re] scared tell me I['ll]
send some solidures [sic] to protect your
Honor.
5 A-0717-15T3
The hearing officer upheld the charge, finding that Clauso
"wrote a threatening letter to judges."4 The hearing officer then
referred at length to the quoted statements Clauso made to his
wife. The officer noted that Clauso had "stated . . . 'I am not
saying I didn't make threats.[']" Clauso's counsel substitute
acknowledged on the adjudication form that Clauso declined the
opportunity to call or confront witnesses.
The hearing officer imposed 365 days of administrative
segregation; 365 days loss of commutation time; and fifteen days
loss of recreation privileges. Clauso filed an administrative
appeal. In a separate filing, a paralegal wrote that Clauso's
conversation was "never intended to constitute a threat." However,
Clauso maintained that he "did not consent to anyone doing anything
for [him] appeals/representation/nothing."
Judge stop this fucking around set me free if
your Honor wants me to threaten someone or
blow something up that way we can testify at
a trial please advise me what to do. I can
never do these things. So please figure out
what you want me to say.
4
The hearing officer's decision does not clearly state whether
the letter to the federal judge, a copy of which is included in
the record, violated *.005, or whether the adjudication was based
solely on the letter Clauso referenced in his monitored
conversation, which was apparently sent to the state judge.
Notably, the initial disciplinary report's "description of alleged
infraction" referred only to Clauso's telephone conversation.
6 A-0717-15T3
Clauso argued in his administrative appeal that he did not
receive a fair opportunity to attend the hearing. He alleged that
on the hearing day, a sergeant, paralegals and the hearing officer
crowded into his "observation cell," where he had been sleeping
under his bed, to shield himself from the light that was on twenty-
four hours a day. He contended he told them he had just awakened
and had to wash his face and use the toilet. He claimed the
hearing officer then left and, the next day, he received the
hearing officer's decision. He asserted he was denied a hearing,
his paralegal failed to present a defense, and he was deprived due
process.
The Administrator upheld the decision, explaining that the
decision was based on substantial evidence; there was procedural
due process; and the hearing complied with guidelines. The
Administrator reduced the administrative segregation sanction to
time served.5 All "other" sanctions were to be enforced.
On appeal, Clauso presents the following points for our
consideration:
THE STATEMENT BY APPELLA[NT] WERE MADE OUT OF
FRUSTRATION AND NOT FOR THE PURPOSE TO HARM
ANYONE OR TO CAUSE HARM.
5
The disposition sheet stated, "Ad Seg sanction reduced to CTS."
7 A-0717-15T3
POINT I
THE HEARING OFFICER'S DECISION FINDING
APPELLANT GUILTY OF VIOLATING PRISON RULES WAS
ARBITRARY AND CA[]PRICIOUS AND NOT BASED UPON
SUBSTANTIAL EVIDENCE AS REQUIRED IN N.J.A.C.
10A:4-9.15(a).
POINT II
APPELLANT WAS PLACED IN 24 HOUR ISOLATION FOR
146 DAYS IN VIOLATION OF HIS 8TH AMENDMENT
RIGHTS TO BE FREE FROM CRUEL AND UNUSUAL
PUNISHMENT INFLICTED.
POINT III
THE DEPARTMENT OF CORRECTION'S FINDINGS,
UPHOLDING INMATE DISCIPLINARY DECISION WAS
INADEQUATE, AND CONTRARY TO ITS DECISION IN
BLACKWELL V. DEPT. OF CORRECTIONS, 348 N.J.
SUPER. 117 (APP. DIV. 2002).
Our standard of review is well-settled. We will disturb the
Department's disciplinary decision "only if it is arbitrary,
capricious or unreasonable[,]" or unsupported "by substantial
credible evidence in the record as a whole." Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980); see also Jenkins v. N.J.
Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010). In
determining whether an agency action is arbitrary, capricious, or
unreasonable, we consider whether: (1) the agency followed the
law; (2) substantial evidence supports the findings; and (3) the
agency "clearly erred" in applying the "legislative policies to
the facts." In re Carter, 191 N.J. 474, 482-83 (2007) (quoting
8 A-0717-15T3
Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)). Although our review
is not perfunctory, Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 191 (App. Div. 2010), we "may not substitute [our] own
judgment for the agency's, even though [we] might have reached a
different result." In re Stallworth, 208 N.J. 182, 194 (2011)
(internal quotation marks and citation omitted). "Prisons 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).
On the other hand, interpreting DOC regulations is a purely
legal matter, which we consider de novo. Klawitter v. City of
Trenton, 395 N.J. Super. 302, 318 (App. Div. 2007). "An appellate
tribunal is . . . in no way bound by the agency's . . .
determination of a strictly legal issue." Mayflower Sec. Co. v.
Bureau of Sec., 64 N.J. 85, 93 (1973).
Applying these principles, we discern no merit to Clauso's
challenge to the Administrator's decision that affirmed the
hearing officer's finding of a *.005 infraction. Clauso contends
his statements were borne out of frustration, not meant as threats,
and he did not intend to hurt anyone. But his subjective intent
does not matter. An inmate charged with a *.005 violation is
guilty if, "on the basis of an objective analysis[,] . . . the
9 A-0717-15T3
remark conveys a basis for fear." Jacobs v. Stephens, 139 N.J.
212, 222 (1995). Jacobs held that an inmate's statement to an
officer "'to get the fuck out of [my] face' during a 'heated'
discussion," was sufficient, on its own, to find that a threat had
been made. Id. at 223. The Department also considered evidence
of additional menacing statements in support of its finding. Id.
at 223-24.
It also is of no moment that the target of Clauso's threat
was not a party to the monitored conversation. The monitored
conversation was significant because Clauso admitted he sent a
threatening letter to the judge and he described what he wrote,
which conveyed a threat and basis for fear. It also was not
essential for the Department to call the letter's recipient as a
witness. Clauso's own admissions sufficed to prove he conveyed
the threats.6
We also reject Clauso's contention that the hearing process
deprived him of his due process rights. Prisoners are afforded
an array of procedural rights, albeit not as extensive as those
granted to a defendant in a criminal prosecution. See Jenkins v.
Fauver, 108 N.J. 239, 248-49 (1987); Avant v. Clifford, 67 N.J.
6
We need not address whether a *.005 violation may consist solely
of conveying to one person the threat to harm another, without
directing the listener to pass the threat along.
10 A-0717-15T3
496, 525-47 (1975); N.J.A.C. 10A:4-9.1 to -9.28. Here, there was
sufficient evidence in the record — although disputed — to
establish that Clauso was offered a fair opportunity to attend the
hearing, and to present and confront witnesses. See N.J.A.C.
10A:4-9.11(a) (allowing in absentia hearings "if the inmate
refuses to appear at the hearing"); N.J.A.C. 10A:4-9.14
(discussing the right to present and confront witnesses).
Additionally, the decisions of the hearing officer and
Administrator did not lack essential detail. See N.J.A.C. 10A:4-
9.24 (outlining components of hearing officer decision); N.J.A.C.
10A:4-11.5 (discussing an Administrator's review of an appeal).
Finally, we do not address Clauso's contention that the
Department's decision to place him in twenty-four-hour isolation
for 146 days, apparently in advance of the August 2015 hearing,
constituted cruel and unusual punishment. The issue of the
conditions of Clauso's confinement is not properly before us in
his appeal from the Administrator's decision.
Affirmed.
11 A-0717-15T3