OSHEA CLARKE VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-1029-18T3
OSHEA CLARKE,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted November 7, 2019 – Decided December 16, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the New Jersey Department of
Corrections.
Oshea Clarke, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Kimberly Gail Williams, Deputy
Attorney General, on the brief).
PER CURIAM
Oshea Clarke, an inmate at Northern State Prison (NSP), appeals from the
October 17, 2018 final determination of the Department of Corrections (DOC)
adjudicating him guilty of a disciplinary infraction, fighting with another person.
N.J.A.C. 10A:4-4.1(a)(2)(i) *.004. We reverse and remand.
I.
The following facts are derived from the record. On September 23, 2018,
Corrections Officer Rosario reported he saw Clarke and inmate Porter
"fighting[,] exchanging close blows" in a housing unit. As a result of Rosario's
report, Clarke was charged with violating N.J.A.C. 10A:4-4.1(a)(2)(i) *.004.
Prior to the start of a disciplinary hearing, Clarke was assigned the
assistance of counsel substitute. The hearing officer adjourned the hearing
several times to obtain additional information about the alleged infraction. An
investigating Sergeant obtained statements from six inmate witnesses named by
Clarke, a clarifying statement from Rosario, and a copy of a surveillance video
recording. In addition, the hearing officer granted Clarke's request for written
cross-examination of Rosario.
In a written statement expanding on his initial report, Rosario stated he
saw Clarke and Porter exchanging close blows by the hot water machine.
According to Rosario, after the fight, Clarke "ran to the cage area and inmate
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[P]orter went towards the cage area." Rosario continued, "[a]t this point[,] I
gave inmate Porter a direct order to stop and he complied."
Rosario's responses to Clarke's written cross-examination questions were
consistent with the officer's two written reports. In the answers, Rosario stated
Clarke initiated the confrontation with Porter, did not try to avoid a physical
altercation, and did not do "all he could to flee from the altercation." Rosario
did not recall if Porter had anything in his hand during the fight.
Clarke submitted a request to the Administrator of NSP to undergo a
polygraph examination pursuant to N.J.A.C. 10A:3-7.1(a)(1). In his request,
Clarke denied engaging in any physical confrontation with Porter. He stated he
saw Porter approaching him with a sock containing a heavy object in one hand
and a cup containing a liquid in the other hand. According to Clarke, he realized
Porter was about to assault him, and ran to the cage area of the housing unit to
escape.1 Clarke argued he was entitled to a polygraph examination because
Rosario's reported version of the incident directly contradicted Clarke's version.
The Administrator denied Clarke's request, concluding the hearing officer would
address credibility at the hearing.
1
According to Clarke, it is common for an inmate to throw liquid in the face of
another inmate prior to hitting that inmate with a sock containing a heavy object.
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DOC produced a video surveillance recording of the cage area of the
housing unit. The recording shows Clarke running to a large cage in the housing
unit from the area of the hot water machine. Clarke stops at the entrance to the
cage, looking in the direction from which he came. Shortly thereafter, Porter
runs into the frame, carrying what appears to be a sock containing a heavy
object. As he rushes toward Clarke, Clarke backs away farther into the cage
away from Porter. Porter, in an apparent agitated state, retreats, but paces
around the area, appearing to shout in Clarke's direction. Corrections officers
then enter, at which time Clarke and Porter assume prone positions on the floor. 2
Having reviewed the video, Clarke requested additional video recordings
from two other "angles" in the housing unit. According to Clarke, although the
recording from the cage area supported his version of events, he sought
production of the recordings from two other video cameras in the unit, which he
believed would show when he first encountered Porter. The hearing officer
requested the additional recordings, but was informed the recording from the
cage area was the "only available angle" of the incident.
At the hearing, the hearing officer reviewed Rosario's written statements
and cross-examination answers, and a written statement from Clarke denying a
2
At our direction, DOC submitted a copy of the recording for our review.
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physical confrontation with Porter. In addition, the hearing officer viewed the
video recording from the cage area. She noted her acceptance of DOC's
representation the recording was the only available angle of the incident.
The hearing officer also considered written statements from six inmate
witnesses. Porter denied he and Clarke engaged in a physical confrontation.
Inmate Ansuman stated while he was in his cell, he "all of a sudden" saw Clarke
running and told him to come to his cell. Ansuman stated Clarke and Porter did
not fight and Rosario "had his head down" and could not see what transpired
between the inmates. Inmate Jackman stated he saw Clarke "backing up from
the hot water machine with his hands in the air" and that no fight took place.
Inmate Burton reported seeing "a few guys . . . having a disagreement" but that
"nobody threw a punch." Inmate Bridges stated he was in the doorway of his
cell when "suddenly some guy in the cell next to mine started getting loud, which
caused Clarke and a couple others to back away and even flee out of the day
space." Finally, inmate Leonard stated he "saw Clarke at the water and others
move because something was coming our way."
The hearing officer adjudicated Clarke guilty of the offense. She found
Clarke offered no evidence to contradict Rosario's reports. The hearing officer
found the statements of the inmate witnesses provided no credible evidence
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exonerating Clarke. In addition, the hearing officer noted, based on her
knowledge of prison subculture, it was possible during the several adjournments
of the hearing Clarke communicated with the inmate witnesses to obtain
favorable statements, "negating the value of those statements."
Finally, the hearing officer found the video recording from the cage area
provided no evidence contradicting Rosario's reports because the area in which
the confrontation took place is outside the view of the camera. The hearing
officer found Clarke's flight from Porter is not substantial evidence the two
inmates did not engage in a fight, as Clarke could have fled after striking Porter.
The hearing officer sanctioned Clarke to: (1) ninety-one days in
administrative segregation; (2) a thirty-day loss of recreation privileges; and (3)
a ninety-one-day loss of commutation credits. The hearing officer determined
the sanctions were appropriate considering Clarke's prior disciplinary history
and necessary to deter fighting at the institution.
Clarke appealed the adjudication to the NSP Administrator. On October
17, 2018, a designee of the Administrator upheld the adjudication and sanctions.
This appeal followed. Clarke makes the following arguments:
POINT ONE
THE DISCIPLINARY HEARING OFFICER'S (DHO)
GUILTY FINDING AND THE ADMINISTRATOR'S
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DECISION TO UPH[O]LD HER FINDING OF THE
*004 INFRACTION WAS ARBITRARY,
CAPRICIOUS, AND UNREASONA[BL]E.
A. THE DISCIPLINARY HEARING OFFICER'S
GUILTY FINDING WAS NOT BASED ON
SUBSTANTIAL EVIDENCE IN THE RECORD.
B. THE HEARING OFFICER ERRONEOUSLY
PLACED THE BURDEN OF PROOF ON THE
APPELLANT TO PROVE THAT HE DID NOT
COMMIT THE ALLEGED PROHIBITED ACT.
POINT TWO
THE DENIAL OF APPELLANT'S REQUEST FOR
COMPLETE VIDEO FOOTAGE DENIED HIM HIS
RIGHT TO DUE PROCESS.
POINT THREE
THE DENIAL OF THE APPELLANT'S REQUEST
FOR A POLYGRAPH EXAMINATION WAS
ERRONEOUS AND DENIED HIM HIS RIGHT TO
DUE PROCESS.
II.
Our review of a final agency decision is limited. Figueroa v. N.J. Dep't
of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010). 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.
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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 supports the agency's conclusions). "[A]lthough the determination
of an administrative agency is entitled to deference, our appellate obligation
requires more than a perfunctory review." Figueroa, 414 N.J. Super. at 191(quoting Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div.
2002)). We engage in a "careful and principled consideration of the agency
record and findings" relating to inmate disciplinary adjudications. Williams v.
Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower
Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)).
In a disciplinary proceeding, an inmate is not accorded the full panoply of
rights afforded a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J.
496, 522 (1975). Prisoners are 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 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 any sanctions; and, where the charges are complex, the
assistance of a counsel substitute. Id. at 525-33; accord Jacobs v. Stephens, 139
N.J. 212 (1995); McDonald v. Pinchak, 139 N.J. 188 (1995).
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An inmate does not have the right in all instances to a polygraph
examination to contest a disciplinary charge. Johnson v. N.J. Dep't of Corr., 298
N.J. Super. 79, 83 (App. Div. 1997). Instead, an inmate's request for a polygraph
examination will be granted: (1) when there are issues of credibility regarding
serious incidents or allegations which may result in a disciplinary charge; or (2)
as part of a reinvestigation of a disciplinary charge when new evidence indicates
serious issues of credibility. N.J.A.C. 10A:3-7.1(a). "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). To the contrary, 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.
Impairment [of fundamental fairness] may be
evidenced by inconsistencies in the [corrections
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officers'] 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 [a]ffected when there
is sufficient corroborating evidence presented to negate
any serious question of credibility.
[Id. at 24.]
In our view, there were serious questions of credibility before the hearing
officer. The disciplinary charge against Clarke was based on the report of a
single corrections officer. Clarke, Porter, and two other inmates provided
statements directly contradicting the officer's report. 3 Significantly, the only
available video recording of the event can be interpreted to corroborate the
accounts of Clarke and the inmate witnesses. In these circumstances, it was
arbitrary to deny Clarke's request for a polygraph examination. In light of our
decision, we do not address Clarke's remaining arguments.
Reversed and remanded for a new hearing after administration of a
polygraph examination to Clarke. We do not retain jurisdiction.
3
Three other inmate statements did not directly contradict Rosario's reports.
Inmate Ansuman was in his cell when he saw Clarke arrive at the cage area.
Inmate Bridges purportedly saw Clarke flee from a loud inmate in an adjoining
cell. Inmate Leonard saw Clarke and others move from the area of the hot water
machine because "something" was coming their way.
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