SHAMSIDDIN ABDUR-RAHEEM VS. NEW JERSEY DEPARTMENT OF CORRECTIONS(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NOT FOR PUBLICATION WITHOUT THE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-3670-14T4
SHAMSIDDIN ABDUR-RAHEEM,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________________________
Submitted October 17, 2016 – Decided May 10, 2017
Before Judges Fisher and Leone.
On appeal from the New Jersey Department of
Corrections.
Shamsiddin Abdur-Raheem, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Nicole
E. Adams, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant Shamsiddin Abdur-Raheem appeals the March 17, 2015
order by the New Jersey Department of Corrections (DOC) upholding
disciplinary sanctions. We affirm.
I.
Appellant is currently serving a life sentence at the New
Jersey State Prison for murder and kidnapping. On August 30,
2014, Senior Corrections Officer Forbes conducted a routine cell
search of appellant's cell. Forbes discovered, hidden inside a
toilet paper roll, a folded note with two small envelopes
containing an unknown white powdery substance. Forbes seized the
envelopes.
Appellant was charged with prohibited act *.203, "possession
or introduction of any prohibited substances such as drugs,
intoxicants or related paraphernalia not prescribed for the inmate
by the medical or dental staff." N.J.A.C. 10A:4-4.1(a) (2014).
He was placed in pre-hearing detention (PHD). On August 31, 2014,
Sergeant Knox conducted an investigation and determined the *.203
charge had merit, served the disciplinary notice, and referred the
charge to a hearing officer for further action. On September 3,
2014, the white powdery substance was sent to the State Police
Laboratory for testing.
The prison disciplinary hearing began on September 3 and 4,
2014. On September 8, 2014, Disciplinary Hearing Officer (DHO)
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Cortes postponed the hearing due to the "requirement that results
from State Police Laboratory . . . are received prior to
adjudication of disciplinary infraction." On February 5, 2015,
the test results were received from the State Police Laboratory,
as indicated by a "Courtline" date stamp on the report.1 After
performing gas chromatography, mass spectrometry, and other tests,
the laboratory determined the white powdery substance was
bupropion, a prescription drug for which appellant has no
prescription.
The hearing resumed on February 9, 2015. Appellant then made
requests for documents, witnesses, confrontation, a polygraph
test, video surveillance, and DNA, fingerprint, urine, and
handwriting analyses, resulting in DHO Zimmerman granting six
brief postponements. The hearing concluded on February 24, 2015.
DHO Zimmerman found appellant guilty of the *.203 charge and
imposed the following sanctions: 90 days' administrative
segregation with credit for time served, 90 days' loss of
communication time, 365 days' urine monitoring, and permanent loss
of contact visits.
1 The prison disciplinary hearing system is commonly referred to
as "Courtline." See, e.g., N.J. State Parole Bd. v. Woupes, 184
N.J. Super. 533, 535 (App. Div. 1981), certif. denied, 89 N.J. 448
(1982).
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Appellant appealed DHO Zimmerman's decision to the Prison
Administrator, who upheld the decision and sanctions. Appellant
now seeks our review of the Prison Administrator's final decision.
II.
"Our role in reviewing the decision of an administrative
agency is limited." Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 190 (App. Div. 2010). "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). Nonetheless, we must "engage in a 'careful
and principled consideration of the agency record and findings.'"
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)). We must hew to our deferential standard of review.
III.
Appellant claims his due process rights were violated because
he did not receive a timely hearing. "Prison disciplinary
proceedings are not part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply." Jenkins v. Fauver, 108 N.J. 239, 248-49 (1987) (quoting
Wolff v. McDonnell, 418 U.S. 539, 556, 94 S. Ct. 2963, 2975, 41
L. Ed. 2d 935, 951 (1974)). Our Supreme Court has set forth due
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process rights that must be afforded to inmates. Avant v.
Clifford, 67 N.J. 496, 525-46 (1975). Those rights are now
codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-
9.1 to -9.28. The "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." Williams,
supra, 330 N.J. Super. at 203 (citing McDonald v. Pinchak, 139
N.J. 188, 202 (1995)).
Under those regulations, "[i]nmates confined in Prehearing
Disciplinary Housing shall receive a hearing within three calendar
days of their placement in Prehearing Detention, including
weekends and holidays, unless there are exceptional circumstances,
unavoidable delays or reasonable postponements." N.J.A.C. 10A:4-
9.8(c) (2014). In addition, N.J.A.C. 10A:4-9.9(a) provides:
The failure to adhere to any of the time limits
prescribed by this subchapter shall not
mandate the dismissal of a disciplinary
charge. However, the Disciplinary Hearing
Officer or Adjustment Committee may, in its
discretion, dismiss a disciplinary charge
because of a violation of time limits. Such
discretion shall be guided by the following
factors:
1. The length of the delay;
2. The reason for the delay;
3. Prejudices to the inmate in
preparing his/her defense; and
4. The seriousness of the alleged
infraction.
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Appellant was charged with possession of a prohibited
substance. This required testing of the white powdery substance
in the envelopes to determine if it was a prohibited substance.
The substance was received by the State Police Laboratory within
four days of being seized. However, Courtline had to wait five
months to obtain the lab results from the State Police Laboratory.
It appears Courtline was diligent in attempting to obtain the
laboratory results. DHO Cortes checked with the State Police
Laboratory on September 3, September 9, September 29, October 10,
October 20, December 2, and December 15, 2014, requesting an update
on appellant's lab results. On October 20, a DOC Senior
Investigator emailed Courtline advising "lab results normally take
on average 4-6 months to be returned from the State Police Lab."
Moreover, after DHO Cortes's December 15 request for an update,
Courtline was advised that all "law enforcement entities in the
state utilize the New Jersey State Police Lab" and that "all
submissions to the State Police Lab are processed in the order of
which received." Courtline scheduled appellant's hearing to occur
within four days of receiving the lab results.
Waiting for the lab results was an "unavoidable delay[]," as
the prison had to verify that the alleged prohibited substance was
indeed a prohibited substance before it could proceed to adjudicate
the *.203 charge. N.J.A.C. 10A:4-9.8(c) (2014). Appellant does
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not dispute his multiple requests for a panoply of tests and
evidence caused and justified the remaining "reasonable
postponements." Ibid. Accordingly, Courtline's scheduling of the
hearing did not violate N.J.A.C. 10A:4-9.8(c).
In any event, "[f]ailure to adhere to any of the time limits
prescribed by [N.J.S.A. 10A:4-9.8(c)] shall not mandate the
dismissal of a disciplinary charge." Negron v. N.J. Dep't of
Corr., 220 N.J. Super. 425, 429 (App. Div. 1987) (quoting N.J.A.C.
10A:4-9.9). DHO Zimmerman considered the four factors in N.J.A.C.
10A:4-9.9(a) and declined in his discretion to dismiss the charge.
He "acknowledge[d] the excessive delay" of six months but stressed
the primary reason: "Lab results are necessary to adjudicate the
charge, and the DHO can not proceed without them." He noted "DHO
Cortes inquired about the lab results multiple times." DHO
Zimmerman also cited the seriousness of the alleged infraction,
highlighting that "[t]aking medication that is not prescribed can
cause significant health problems" and that possessing non-
prescribed drugs posed "safety and security" concerns. Further,
"[p]rohibited acts preceded by an asterisk (*) are considered the
most serious and result in the most severe sanctions." N.J.A.C.
10A:4-4.1(a).
After considering "[t]he length of the delay," "[t]he reason
for the delay," the lack of "[p]rejudices to the inmate in
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preparing his/her defense," and "[t]he seriousness of the alleged
infraction," N.J.A.C. 10A:4-9.9(a), DHO Zimmerman declined in her
discretion to dismiss the charge. We cannot say that decision was
arbitrary, capricious, or unreasonable. Indeed, appellant does
not allege any prejudice to his defense from the delay.2
Appellant notes the State Police Laboratory Report indicates
it was notarized and signed by the analyst on October 15, 2014.
He concedes the report was not received by Courtline until February
5, 2015. He claims "[t]he results were intentionally withheld by
SID investigators to harass and punish appellant with
psychological no-touch torture by prolonging his adjudication
while subjecting him to harsh conditions of" PHD in violation of
N.J.A.C. 10A:4-9.8(e). He has not offered any evidence of such
intentional wrongdoing. In fact, the prison's associate
administrator, noting that appellant was "on PHD status pending
lab results" and that "[w]e do not expect the results anytime
soon," instructed prison officials to release appellant from PHD
on December 2, 2014 – more than two months before Courtline
received the report. Thus, it appears the delay was caused not
by an evil conspiracy, but by the troubling inefficiencies of the
2 Instead, appellant claims the delay in receiving the lab test
results caused DHO Zimmerman to deny his numerous evidence
requests, but the DHO's denials were proper, as set forth infra.
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State Police Laboratory in processing drug tests and communicating
the results. Nonetheless, it was not arbitrary, capricious, or
unreasonable to decline to dismiss this serious charge under these
circumstances.3
IV.
Appellant also argues his due process rights were violated
by the denial of his request for polygraph examination.
"[Appellant] 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).
"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). "This administrative code section 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). Therefore, "a prison
administrator's determination not to give a prisoner a polygraph
examination is discretionary and may be reversed only when that
3 Appellant claims the prison was not permitted to hold him in
disciplinary detention for more than fifteen days. N.J.A.C. 10A:4-
5.3(a)(1) (2014). However, he was placed in "prehearing detention"
under N.J.A.C. 10A:4-10.1 (2014), not "disciplinary detention"
under N.J.A.C. 10A:4-10.2 (2014). In any event, he received credit
for his prehearing detention against his sentence to ninety days
of administrative segregation. See N.J.A.C. 10A:4-10.1(f) (2014).
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determination is 'arbitrary, capricious or unreasonable.'" Id.
at 24.
"[A] polygraph examination is not required when corroborating
evidence . . . exist[s]." Id. at 25. Here, the note, envelopes,
and bupropion constituted corroborating evidence. Moreover,
appellant was allowed to confront Officer Forbes and pose numerous
questions to him. Thus, appellant "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 also reject appellant's challenges to the denial of his
requests for other tests and evidence. The DHO properly denied
appellant's request for records of searches of his cell a week or
more earlier as irrelevant, as "[t]horough cell searches may be
conducted as often as once a week" and "[s]pot-checks of cells may
be conducted at any time." N.J.A.C. 10A:5-2.28(a). His request
for video surveillance failed because no video was taken of the
routine cell search. His request for urinalysis could not have
exculpated him as he was charged with possession, not use, of a
prohibited substance. Similarly, handwriting analysis of the note
would not have exculpated him as it was an apparently unrelated
paper used as packaging. Fingerprint analysis was not shown to
be possible or revelatory. Appellant was given a witness statement
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from a social worker who stated he had no reports or recollection,
so appellant's request to call him as a witness was properly denied
as irrelevant. N.J.A.C. 10A:4-9.13(a)(2). We cannot say denial
of these requests negated the fundamental fairness of the
disciplinary proceeding.
Appellant claims he did not receive a copy of the lab results
until this appeal. However, it appears he did receive the lab
results at the hearing because the Adjudication of Disciplinary
Charge form lists the lab results as one of the prison's "non-
confidential exhibits," and his counsel substitute signed the form
"acknowledg[ing] that [the form] accurately reflects what took
place at the inmate disciplinary hearing." This "important"
provision for "the defendant inmate or his counsel substitute [to]
sign to indicate that the information set forth on the Adjudication
of Disciplinary Charge form accurately reflects what took place
at the hearing" is designed to "avoid [such] factual disputes" and
to keep them "from being decided at such a late date." McDonald,
supra, 139 N.J. at 199.
In any event, appellant failed to raise this claim in his
administrative appeal. "The obligation to exhaust 'administrative
remedies before resort to the courts is a firmly embedded judicial
principle.'" Ortiz v. N.J. Dep't of Corr., 406 N.J. Super. 63,
69 (App. Div. 2009) (citation omitted). "While the exhaustion
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requirement may be relaxed in the interest of justice, that relief
is not appropriate when the factual record is less than adequate
and the issue presented is one that requires the expertise of the
agency." Ibid. By failing to raise the claim, defendant has
deprived us of agency review and an adequate factual record to
support his claim.4
V.
Finally, appellant argues his due process rights were
violated because his counsel substitute failed to provide adequate
assistance. Pursuant to N.J.A.C. 10A:4-9.12(a), "[w]hen an inmate
has been charged with an asterisk offense, the inmate shall be
afforded the right to request representation by a counsel
substitute."5 Our Supreme Court has held that requiring inmates
to be represented by attorneys "would be wholly incompatible with
New Jersey institutional needs and capacities and . . . unessential
4Appellant also contends counsel substitute should not have signed
the Adjudication of Disciplinary Charge form because it was
inaccurate. However, appellant did not make that claim in his
administrative appeal, which simply alleged "inadequate
access/assistance from counsel substitute." We decline to address
this unexhausted claim.
5 An inmate has a due process "right to assistance from a counsel
substitute where the inmate is illiterate or the issues too complex
for the inmate to marshal an adequate defense." McDonald, supra,
139 N.J. at 195; see N.J.S.A. 10A:4-9.12(b). Here, appellant
proved perfectly capable of writing literate motions and briefs
and marshalling a more-than-adequate defense in this relatively
simple case.
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to protection of the inmate's rights." Avant, supra, 67 N.J. at
537. Rather, the prison need only "choose a sufficiently competent
staff member or inmate to provide assistance" or allow the inmate
to choose "a consenting staff member or inmate." Id. at 529. A
counsel substitute may be any "individual, such as an inmate
paralegal, teacher or social worker." N.J.A.C. 10A:1-2.2. Inmate
paralegals are not attorneys and receive limited training.
N.J.A.C. 10A:6-2.12(b), -2.13. To hold counsel substitutes to the
standards of legally-educated, licensed, and practicing attorneys
would be unrealistic, and likewise "wholly incompatible with New
Jersey institutional needs and capacities and . . . unessential
to protection of the inmate's rights." See Avant, supra, 67 N.J.
at 537.
Appellant has not shown counsel substitute was incompetent
or failed to fulfill his limited role. Indeed, counsel substitute
met with appellant, inquired with Courtline about the delay of the
hearing, examined the evidence, prepared a brief requesting
polygraph examination, and assisted appellant in the hearing.
Appellant's remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E).
Affirm.
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