SHAMSIDDIN ABDUR-RAHEEM VS. NEW JERSEY DEPARTMENT OF CORRECIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0177-17T3
SHAMSIDDIN ABDUR-RAHEEM,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_______________________________
Submitted April 30, 2020 – Decided May 18, 2020
Before Judges Suter and DeAlmeida.
On appeal from the New Jersey Department of
Corrections.
Shamsiddin Abdur-Raheem, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Suzanne Davies, Deputy Attorney
General, on the brief).
PER CURIAM
Appellant Shamsiddin Abdur-Raheem, an inmate at New Jersey State
Prison (NJSP), appeals from the June 12, 2017 final determination of the
Department of Corrections (DOC) adjudicating him guilty of prohibited act
*.005, threatening another with bodily harm or with any offense against his or
her person or his or her property in violation of N.J.A.C. 10A:4-4.1(a)(2)(ii).
We affirm.
I.
The following facts are derived from the record. On April 1, 2016, Senior
Corrections Officer (SCO) Galileo issued a special custody report stating:
On the above date and time[,] I . . . completed a cell
search of inmate Abdur-Raheem, S#789072. After the
inmate was secured back in his cell he stated in a[n]
aggressive manner[,] "OK Frederick. You and
Christopher want to play games with me?! That's right
I have all your information. I know your family is home
alone right now while you['re] sitting your lazy ass in
the booth all day. I have first and second shifts[']
information. I'm going to write administration to get
you pigs pulled off my unit. You don't know who you
are playing with. My family has connections
downtown and in administration." I asked the inmate[,]
"how did you get our information?" His response
was[,] "It's not rocket science Freddy boy. It's public
records. You can google that shit!"
On April 2, 2016, SCO Galileo issued a disciplinary report charging
Abdur-Raheem with committing prohibited act *.005 based on the information
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in the officer's special report. Corrections Sergeant Haywood conducted an
investigation and referred the matter to a disciplinary hearing officer (DHO) for
adjudication. During the investigation, SCO Galileo stated in a supplemental
report:
I . . . feel threatened by inmate Abdur-Raheem due to
him knowing my personal information which he said he
obtained from the State. He also stated to me in a[n]
aggressive tone that he knows my family is home alone
while my lazy ass is in the booth at work. I do not know
what connections he has on the outside or what his
family and friends are capable of. He called me by my
first name and also said he had all of the first and
second shifts['] information. I don[']t know exactly
what he has but he sounded confident in what he knows.
Depending on what he has I fear for my famil[y's]
safety. After he was placed on [prehearing detention]
he was placed back in the same cell. For the remainder
of the evening when I was on the floor he kept stating[,]
"this isn't over Frederick, you'll see!" The following
day as soon as I came on shift and walked in the booth
he saw me and yelled again, "this isn't over Frederick!"
I called the center keeper to get him moved. He was
then moved to another unit . . . .
Sergeant Haywood delivered a copy of the charge to Abdur-Raheem, who
pleaded not guilty and requested the assistance of counsel substitute.
An initial adjudication of the charge was appealed to this court. We
granted the DOC's motion to remand for a new hearing. At the second hearing,
the DHO assigned Abdur-Raheem counsel substitute. In addition, the DHO
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granted Abdur-Raheem's request for written cross-examination of SCO Galileo
and SCO Anfuso. The DHO disallowed some of Abdur-Raheem's proposed
cross-examination questions as irrelevant or repetitive and rephrased others.
Both officers provided written answers to numerous cross-examination
questions.
The DHO denied as irrelevant Abdur-Raheem's request for copies of: (1)
logbook records that he contended would demonstrate that his cell had been
searched on two occasions; and (2) SCO Galileo's disciplinary file. Prior to the
rehearing, NJSP Administrator Steven Johnson denied Abdur-Raheem's request
for a polygraph examination, noting that "no issues of credibility or new
evidence have been determined to warrant its approval administratively."
At the rehearing, Abdur-Raheem argued SCO Galileo was lying and
lodged the disciplinary charge as retaliation for his having threatened to sue the
officer after the officer searched his cell. Abdur-Raheem provided a written
statement to the DHO and called no witnesses.
After hearing the testimony, reviewing the evidence, and considering
Abdur-Raheem's arguments, the DHO found Abdur-Raheem guilty of the *.005
charge. The DHO concluded there was sufficient evidence in staff reports and
the cross-examination responses of the officers to support the charge and found
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"[t]he officer felt threatened by what was said by the [inmate and] feared for his
family's safety." After noting the serious nature of the charge, the DHO
sanctioned Abdur-Raheem to 180 days in administrative segregation, a 365-day
loss of commutation credits, a thirty-day loss of recreation privileges, and a 365-
day loss of television and radio privileges.
On June 12, 2017, Assistant Superintendent Amy Emrich upheld the
hearing officer's decision and the sanctions imposed. Assistant Superintendent
Emrich found Abdur-Raheem had been provided all procedural safeguards to
which he was entitled under the Administrative Code and that the sanctions
imposed were appropriate.
This appeal followed. Abdur-Raheem argues: (1) the hearing officer did
not provide a written statement of the evidence upon which she relied; (2) the
DOC's final agency decision was not based on substantial credible evidence; (3)
Abdur-Raheem was denied the right to question witnesses; (4) the hearing
officer was not impartial; and (5) the DOC abused its discretion when denying
Abdur-Raheem's request for a polygraph examination.
II.
Our review of a final agency decision is limited. Reversal is appropriate
only when the agency's decision is arbitrary, capricious, or unreasonable, or
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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). "[A]lthough the
determination of an administrative agency is entitled to deference, our appellat e
obligation requires more than a perfunctory review." Figueroa v. N.J. Dep't of
Corr., 414 N.J. Super. 186, 191 (App. Div. 2010) (quoting Blackwell v. Dep't of
Corr., 348 N.J. Super. 117, 123 (App. Div. 2002)).
"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, 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)).
In addition, an inmate is not accorded the full panoply of rights in a
disciplinary proceeding afforded a defendant in a criminal prosecution. Avant
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v. Clifford, 67 N.J. 496, 522 (1975). Instead, 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 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 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).
Having reviewed the record in light of these precedents, we conclude there
is ample evidentiary support for the DOC's final adjudication. The record
contains unequivocal reports from SCO Galileo of the statements made by
Abdur-Raheem. The officer credibly explained that Abdur-Raheem's comments
were threatening. We agree there is only one reason for Abdur-Raheem to
profess to know details of the officer's personal life: to impliedly threaten the
officer's family.
We also are satisfied Abdur-Raheem received all due process protections
to which he is entitled. We see no abuse of discretion in the DHO's limitation
of Abdur-Raheem's proposed cross-examination questions. The DHO has the
authority "to keep the hearing within reasonable limits and to refuse to permit
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the collection and presentation of evidence which is not necessary for an
adequate understanding of the case." N.J.A.C. 10A:4-8.4(b). Pursuant to this
authority, the DHO may refuse confrontation and cross-examination when it
would be irrelevant, harassing, or likely to produce repetitive testimony.
N.J.A.C. 10A:4-9.14(b). That discretion was exercised properly here.
Finally, we have considered, and reject, Abdur-Raheem's argument that
he was improperly denied the opportunity to take a polygraph examination. 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). In fact, 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
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examination would compromise the fundamental fairness of the disciplinary
process." Id. at 20.
Impairment [of fundamental fairness] may be
evidenced by inconsistencies in the SCO'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 corroborating
evidence presented to negate any serious question of
credibility.
[Id. at 24.]
Here, Abdur-Raheem's threat was witnessed by SCO Galileo. No witness
came forward disputing the officer's version of events. SCO Galileo was
consistent in his reporting of Abdur-Raheem's threatening remarks and no
evidence was proffered contradicting the officer's account. As a result, we are
satisfied the Administrator did not abuse his discretion by denying the request
for a polygraph examination.
We have reviewed Abdur-Raheem's remaining arguments and conclude
they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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