HAKEEM ALLEN VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 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NOT FOR PUBLICATION WITHOUT THE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-5360-15T4
HAKEEM ALLEN,
Appellant,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS,
Respondent.
________________________________
Submitted October 25, 2017 – Decided November 14, 2017
Before Judges Currier and Geiger.
On appeal from the New Jersey Department of
Corrections.
Hakeem Allen, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Randy
M. Miller, Deputy Attorney General, on the
brief).
PER CURIAM
Hakeem Allen, a State prisoner who at all times relevant to
this appeal was an inmate at East Jersey State Prison, appeals
from the final administrative decision of the Department of
Corrections (DOC) that upheld a hearing officer's decision finding
him guilty of prohibited acts *.005, threatening another with
bodily harm, N.J.A.C. 10A:4-4.1(a)(2)(ii); *.306, conduct which
disrupts or interferes with the security or orderly running of the
correctional institution, N.J.A.C. 10A:4-4.1(a)(2)(xxix); and
imposed sanctions. Allen was found not guilty of prohibit act
*.803/*.002, attempting to assault any person, N.J.A.C. 10A:4-
4.1(a)(1)(ii); -4.1(a)(2)(xxxvii). Allen's charges resulted from
an incident with corrections officers during which he became
aggressive and confrontational and had to be subdued. We affirm.
On May 8, 2016, while conducting medication watch, Senior
Correction Officers Pyzik and Santana observed Allen arrive to
obtain his medication from the infirmary. Allen was acting
belligerently. When Pyzik questioned him about his behavior,
Allen responded by walking toward the officers aggressively with
raised closed fists, and retorted, "Why, what are you going to do
about it?" The officers, reacting to what they reasonably viewed
to be a threatening situation, secured Allen to the ground and
called in a Code 33 for additional staff to respond to the area
for security reasons. Responding officers handcuffed Allen, who
was then escorted to the infirmary where he was medically cleared
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before being placed in prehearing detention. Two officers suffered
minor injuries during the incident.
On May 9, 2016, Sergeant Rodriquez served Allen with the
disciplinary charges and conducted an investigation. Finding that
the charges had merit, Rodriquez referred the charges to a hearing
officer to conduct a disciplinary hearing. Allen pled not guilty
to the charges and was granted the assistance of counsel
substitute.
The disciplinary hearing commenced on May 11, 2016, and
concluded on May 19, 2016. On May 16, 2016, Allen requested a
polygraph examination claiming the charges were serious and that
there were issues of credibility. The request for a polygraph
examination was denied in writing by Administrator Patrick Nogan
that same day. In his denial letter the Administrator stated:
I note that there is no new evidence
being presented that would necessitate a
credibility review beyond what occurred at the
hearing.
After reviewing the disciplinary
package, I fail to see how a polygraph would
add to what is on record.
Allen requested witness statements from numerous inmates.
His request was granted. In addition, Allen requested
confrontation of Pyzik and Santana, which was also granted.
Confrontation is undertaken by having the inmate propound written
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questions to be answered by the witnesses. The questions submitted
by Allen can be fairly described as inartfully drafted and largely
objectionable as to form. The officers attempted to answer the
questions to the extent they were answerable. Allen was afforded
the opportunity to submit supplemental questions but declined to
do so.
During the hearing, Allen stated, "I never said anything.
The [corrections officer] asked me if I had a problem with his boy
[Lyon]. I'm stressed out about this. This was a bad day that
just got worse."
Based on her review of the evidence, which included a
disciplinary report, preliminary incident reports, special custody
reports, use of force report, authorization for temporary close
custody, authorization for prehearing disciplinary housing
placement, medical reports, witness statements, polygraph request,
cross-examination questions and responses, and confidential mental
health report, Hearing Officer Nolley found Allen guilty of the
*.005 charge, stating:
Inmate stated he did not do anything. Inmate
requested confrontation with 2 officers. The
confrontation was completed. The polygraph
request was declined by administration based
upon the reports and decision that the hearing
could be completed [without] a polygraph. The
confrontation did not prove that the inmate
was not engaged in a confrontation incident
with staff. Based upon reports, inmate's
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behavior was confrontational and resulted in
the inmate being subdued and removed[.]
[C]harge is upheld.
The hearing officer sanctioned Allen to 180 days'
administrative segregation, 180 days' loss of commutation time,
and ten days' loss of television and radio privileges.
Hearing Officer Nolley also found Allen guilty of the *.306
charge, stating:
Inmate stated he didn't do anything. Inmate
requested confrontation with 2 officers[.]
They came in [and] completed the confrontation
[without] any hesitation or reservation. The
confrontation did not help the inmate prove
that he was not involved in an incident with
the officers[.] Inmate requested a polygraph.
The Administration declined the polygraph
based upon the reports [and] that the charges
could be decided on during the hearing. The
inmate got into a confrontation with the
[corrections officer] at the medication window
[and] had to be taken down [and] removed. This
disrupted the evening schedule. Charge is
upheld.
On this charge the hearing officer sanctioned Allen to an
additional 180 days' administrative segregation, 180 days' loss
of commutation time, and twenty days' loss of recreation
privileges.
The hearing officer found Allen not guilty of the remaining
charge, *.803/*.002, attempting to assault any person.
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On May 20, 2016, Allen filed an administrative appeal. That
same day, Assistant Superintendent Rose upheld the decision of the
hearing officer. This appeal followed.
On appeal, Allen raises the following issues: (1) the hearing
officer deprived Allen of due process during confrontation and
cross-examination by failing to require Pyzik and Santana to answer
questions; (2) the administrator's denial of Allen's polygraph
request was arbitrary, capricious, and unreasonable; and (3) the
findings of guilt were unsupported by substantial credible
evidence in the record. Allen does not argue that the sanctions
imposed were excessive.
We preface our analysis by recognizing our review of the
DOC's decision is limited. Reversal is appropriate only when the
agency's decision 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 In re Taylor, 158 N.J. 644, 657 (1999) (holding that a
court must uphold an agency's findings, even if it would have
reached a different result, so long as sufficient credible evidence
in the record exists to support the agency's conclusions).
However, "'although the determination of an administrative agency
is entitled to deference, our appellate obligation requires more
than a perfunctory review.'" Figueroa v. N.J. Dep't of Corr., 414
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N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't
of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).
I.
An incarcerated inmate is not entitled to the full panoply
of rights in a disciplinary proceeding afforded a defendant in a
criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975).
An inmate is entitled to written notice of the charges at least
twenty-four hours prior to the hearing; an impartial tribunal; a
limited right to call witnesses and present documentary evidence;
a limited right to confront and cross-examine adverse witnesses;
a right to a written statement of the evidence relied upon and the
reasons for the sanctions imposed; and, where the charges are
complex, the inmate is permitted the assistance of a counsel
substitute. Id. at 525-33.
The procedural protections articulated in Avant and the DOC's
regulations were reaffirmed in Jacobs v. Stephens, 139 N.J. 212(1995) and McDonald v. Pinchak, 139 N.J. 188, 202 (1995). These
and other procedural requirements for disciplinary charges have
been codified in N.J.A.C. 10A:4-9. The Court found that the
current 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." McDonald,
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supra, 139 N.J. at 202. It is undisputed that Allen was afforded
these procedural safeguards.
Allen contends that his right to confront the witnesses was
abridged because the hearing officer did not require the witnesses
to responsively answer his written questions. We disagree. The
witnesses appeared to have attempted to answer his poorly drafted
questions to the extent they were answerable. Allen declined the
opportunity to submit supplemental questions.
Allen requested to take a polygraph examination after the
disciplinary hearing had already started. "A polygraph
examination may be requested by the Administrator or designee
. . . [w]hen there are issues of credibility regarding serious
incidents or allegations which may result in a disciplinary
charge." N.J.A.C. 10A:3-7.1(a). To be sure, the prohibited acts
that Allen was found guilty of committing are asterisk offenses,
which are "considered the most serious." N.J.A.C. 10A:4-4.1(a).
"The polygraph shall not be used in place of a thorough
investigation, but shall be used to assist an investigation when
appropriate." N.J.A.C. 10A:3-7.1(b). "The code regulation's
principal impetus is an investigative tool of the administrator
when serious disciplinary infractions are alleged against an
inmate as opposed to an affirmative right granted to the inmate
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himself." Ramirez v. N.J. Dep't of Corr., 382 N.J. Super. 18, 23
(App. Div. 2005).
An inmate does not have the right to a polygraph test.
Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div.
1997) (citing N.J.A.C. 10A:3-7.1(c) ("An inmate's request for a
polygraph examination shall not be sufficient cause for granting
the request.")) Instead, N.J.A.C. 10A:31-7.1 "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, supra, 382 N.J. Super.
at 23-24. "[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.
Impairment [of fundamental fairness] may be
evidenced by inconsistencies in the [senior
corrections officer's] statements or some
other extrinsic evidence involving
credibility, whether documentary or
testimonial, such as a statement by another
inmate or staff member on the inmate's behalf.
Conversely, fundamental fairness will not be
effected when there is sufficient
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corroborating evidence presented to negate any
serious question of credibility.
[Id. at 24.]
Here, the threat made by Allen was witnessed by two officers.
It resulted in a disruptive altercation that injured two officers.
The record contained adequate evidence for the hearing officer to
determine credibility. Because adequate corroborating evidence
was presented to confirm the officers' credibility, Allen "has
failed to demonstrate that the denial of his request for a
polygraph negated the fundamental fairness of the disciplinary
proceeding which would compel the granting of his request for a
polygraph." Id. at 26. We are satisfied that the administrator
did not abuse his discretion by denying the request for a polygraph
examination.
Allen also contends that the assistant administrator failed
to provide adequate findings of fact to sustain the decision. We
disagree. "[I]n prison disciplinary matters we have not
traditionally required elaborate written decisions." Blackwell,
supra, 348 N.J. Super. at 123. The disciplinary proceeding was
heard by the hearing officer, who acted as the fact-finder. The
hearing officer issued a written decision setting forth her factual
findings and a reasoned explanation for finding Allen guilty of
prohibited acts *.005 and *.306, which included references to the
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evidence she relied on. See id. at 122-23. The administrator was
entitled to rely upon and adopt the hearing officer's findings of
fact and reasoning without expressly setting forth his own summary
of the evidence and reasons for sustaining the charges. By
referring to the hearing officer's decision, the administrator has
satisfied the requirements of the adjudicatory process.
We are thus satisfied that Allen received all due process
protections afforded to him.
II.
We next consider whether there was adequate evidence to find
Allen guilty of threatening another with bodily harm and conduct
which disrupts or interferes with the security or orderly running
of the correctional institution.
"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). "Substantial evidence"
is "'such evidence as a reasonable mind might accept as adequate
to support a conclusion.'" Figueroa, supra, 414 N.J. Super. at 192
(quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376
(1961)). In other words, it is "'evidence furnishing a reasonable
basis for the agency's action.'" Ibid. (quoting McGowan v. N.J.
State Parole Bd., 347 N.J. Super. 544, 562 (2002)). "Where there
is substantial evidence in the record to support more than one
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regulatory conclusion, it is the agency's choice which governs."
In re Vineland Chem. Co., 243 N.J. Super. 285, 307 (App. Div.)
(citation omitted), certif. denied, 127 N.J. 323 (1990).
The record demonstrates there was substantial credible
evidence to find Allen guilty of prohibited acts *.005, threatening
another with bodily harm, and *.306, conduct which disrupts or
interferes with the security or orderly running of the correctional
institution. Pyzik and Santana observed Allen acting
belligerently, and when asked what he was doing, Allen responded
by walking towards the officers aggressively with raised closed
fists, saying, "Why, what are you going to do about it?" Allen's
behavior was confrontational and menacing. He confronted Pyzik
in an objectively threatening manner. Given the context in which
it occurred, Allen's conduct created an objective basis for fear
and constituted a threat.
Because the guilty findings were supported by substantial
credible evidence, the determination that Allen committed
prohibited acts *.005 and *.306 was not arbitrary, capricious, or
unreasonable.
Allen's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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