DARIUS H. GITTENS VS. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS)

NOT FOR PUBLICATION WITHOUT THE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-3008-19
DARIUS H. GITTENS,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
Submitted May 19, 2021 – Decided June 10, 2021
Before Judges Fuentes and Rose.
On appeal from the New Jersey Department of
Corrections.
Wronko Loewen Benucci, attorneys for appellant
(Michael Poreda, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Christopher C. Josephson, Deputy
Attorney General, on the brief).
PER CURIAM
Darius H. Gittens, an inmate at Bayside State Prison (BSP) appeals from
a February 19, 2020 final agency decision of the New Jersey Department of
Corrections (DOC), which upheld an adjudication and sanctions for committing
prohibited act *.102, attempting or planning an escape, in violation of N.J.A.C.
10A:4-4.1(a)(1)(xiii). We affirm.
On December 17, 2019, F-Housing Unit (F-Unit) Officer Raimon Ng
conducted a routine search of Gittens's cell and seized documents from his
locked footlocker. The documents detailed personal information regarding DOC
employees, including their full names, salaries, work schedules, overtime, and
potential family members. Ng notified Sergeant Ryan Pepper, who thereafter
searched Gittens's cell. Pepper confiscated detailed maps of the secured areas
in the prison, the trailer area, the F-Unit, the cells located within the unit, DOC
internal management procedures, and "dimensions of fences" surrounding the
prison. Pepper also seized documents containing "information related to when
doors were opened, how long they were opened, when stand[-]up counts were
called, where metal detectors were located, where frisk shacks were located, and
numerous distances and measurements of areas within the jail."
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On December 19, 2019, Gittens was served with the charge at issue 1 and
pled not guilty. Gittens also requested and was granted counsel substitute. The
hearing scheduled that same day was postponed to consider Gittens's request for
a polygraph examination. Gittens sought a polygraph examination to
demonstrate he lacked the intent to escape and that the evidence confiscated
from his cell was "taken out of context." A DOC administrator denied the
request finding "there is no extenuating 'issue of credibility' which wo uld
substantiate a polygraph examination. This is supported by a previous rule
violation and subsequent sanction." The administrator concluded "[t]here [wa]s
sufficient evidence presented, including [c]ustody reports and testimony" for the
hearing officer to make a credibility determination.
On December 31, 2019, Gittens submitted a second polygraph request.
Gittens explained that the "previous rule violation" cited by the administrator
was a prison "escape[] for a few hours" as "a tag along, with [two] other inmates"
1
In his December 17, 2019 incident report, Pepper indicated that in addition to
the charge for prohibited act *.102, attempting or planning an escape, Gittens
"receiv[ed] a *.360 [charge] for unlawfully obtaining or seeking to obtain
personal information pertaining to . . . DOC staff or other law enforcement staff
or the family of said staff" and "a *.210 [charge for] possession of anything not
authorized for retention or receipt by an inmate or not issued to him or her
through regular correctional facility channels." It does not appear from the
record on appeal that Gittens was charged with prohibited act *.360 or *.210.
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that occurred thirty-three years ago. Gittens also contended there was new
evidence available, including a security recording that showed Pepper and Ng
reading Gittens's "diary" logbook. Claiming Pepper tore out pages out of the
logbook to present at the hearing and the remainder of the logbook was "gone,"
Gittens contended a polygraph examination was necessary to reveal his
"subjective intention."
Again, the DOC administrator denied the request, concluding the hearing
officer possessed sufficient evidence to determine credibility. Quoting N.J.A.C.
10A:3-7.1(b), the administrator noted a "polygraph shall not be used in place of
a thorough investigation, but shall be used to assist an investigation when
appropriate." According to the administrator, Gittens "possessed various
documents handwritten by [him]self, along with numerous printed documents
containing sensitive information which are not suitable for retention and pose a
safety and security risk to the orderly operation of the correctional facility."
Gittens's request for confrontation with Pepper and Ng was granted.
Although Gittens was given the opportunity to present witnesses on his behalf
at the hearing, he declined to do so.
On January 3, 2020, the hearing officer issued a written decision,
concluding "[a] reasonable person would believe the totality of drawings,
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sketches and information would be information to aid in an escape. Evidence
supports the charge." In reaching her decision, the hearing officer noted
Gittens's "history of escape," which Gittens himself acknowledged, and his
"experience in tampering with locking devices." The hearing officer found that
Gittens "shows no remorse for his self-fulfilling actions and refuses[d] to cease
his actions despite being advised that in the harsh reality of prison culture his
actions must be viewed as dangerous and against policies."
The hearing officer elaborated:
Gittens admits to possession of said drawings, maps
and security details. His defense that information was
obtain[ed] for alternate reasoning is not supported and
is irrelevant. [Gittens]'s intent is irrelevant if he
possessed items that would aid in and [are] consistent
with planning an escape. Inmates are responsible for
what they possess. A reasonable person would know
that you are not allowed to log and dictate every detail
of the security of the prison. . . . Gittens['s] role is of
an inmate, his role is not to police the police, nor
investigate the [DOC], . . . Gittens must comply with
the written rules of his position as an inmate.
The hearing officer imposed the following sanctions: 180-day
administrative segregation as a Category A offense pursuant to N.J.A.C. 10A:4-
5.1(e); ninety-day loss of commutation time; ten-day loss of recreation
privileges; and confiscation of all documents pertaining to the offense.
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Gittens's administrative appeal was denied. The DOC, acting through the
assistant superintendent, upheld the hearing officer's decision, finding
there was compliance with the New Jersey
Administrative Code on inmate discipline, which
prescribes procedural safeguards, and the charges were
adjudicated accordingly. The preponderance of
evidence presented supports the decision of the hearing
officer and the sanction(s) [sic] rendered is appropriate.
Based on the information as presented there is no
apparent misinterpretation of the facts. No leniency
will be afforded to [Gittens]. Uphold all sanctions.
This appeal followed.
On appeal, Gittens contends the "hearing officer's opinion was arbitrary
and capricious and not supported by substantial evidence." Gittens maintains
he never intended to utilize the documents to plan his escape. Instead, Gittens
claims "[h]e began meticulously chronicling the conditions at the prison in
diaries both for the purposes of writing a book about the psychological impact
caused by prison design and also for the purposes of filing complaints and
litigation." At sixty years old and in poor health, Gittens claims he is physically
unable to escape.
More particularly, he raises the following points for our consideration:
I. Gittens was not on fair notice that he could be
punished simply for sketching maps of the prison.
(Not raised below).
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II. A finding that an inmate planned an escape
without considering the inmate's intent is arbitrary and
capricious.
III. Suppression of all evidence in Gittens's favor
rendered the procedur[e] fundamentally unfair and the
decision arbitrary and capricious.
IV. The [h]earing [o]fficer's reliance on Gittens's
history of escape was improper under the regulations.
(Not raised below).
V. Gittens's confrontation with prison officers
regarding stolen mail, and the [h]earing [o]fficer's
obvious bias against Gittens, demonstrate that the
[h]earing [o]fficer's decision and the underlying charge
were retaliatory.
(Not raised below).
Our scope of review of an agency decision is limited. In re Stallworth,
208 N.J. 182, 194 (2011); Malacow v. N.J. Dep't of Corr., 457 N.J. Super. 87,
93 (App. Div. 2018). Reviewing courts presume the validity of the
"administrative agency's exercise of its statutorily delegated responsibilities."
Lavezzi v. State, 219 N.J. 163, 171 (2014). "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). "'Substantial evidence'
means 'such evidence as a reasonable mind might accept as adequate to support
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a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App.
Div. 2010) (quoting In re Pub. Serv. Elec. & Gas Co., 35 N.J. 358, 376 (1961)).
As we have long recognized, "[p]risons 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). A reviewing court "may not substitute its
own judgment for the agency's, even though the court might have reached a
different result." Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474,
483 (2007)). "This is particularly true when the issue under review is directed
to the agency's special 'expertise and superior knowledge of a particular field.'"
Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
However, our review is not "perfunctory," nor is "our function . . . merely
[to] rubberstamp an agency's decision[.]" Figueroa, 414 N.J. Super. at 191(citation omitted). "[R]ather, our function is 'to engage in a careful and
principled consideration of the agency record and findings.'" Ibid. (quoting
Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000)). It is
well settled that an agency's "interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
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deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.
366, 378 (1995).
Pursuant to N.J.A.C. 10A:4-4.1(a):
An inmate who commits one or more of the
following numbered prohibited acts shall be subject to
disciplinary action and a sanction that is imposed by a
Disciplinary Hearing Officer . . . . Prohibited acts
preceded by an asterisk (*) are considered the most
serious and result in the most severe sanctions . . . .
Prohibited acts are further subclassified into five
categories of severity (Category A through E) with
Category A being the most severe and Category E the
least severe.
A Category A offense, including prohibited act *.102, attempting or
planning an escape, "shall result in a sanction of no less than 181 days and no
more than 365 days of administrative segregation per incident." A hearing
officer's finding that an inmate committed a prohibited act must be supported by
"substantial evidence." N.J.A.C. 10A:4-9.15(a).
Applying these standards to the present matter, we discern no basis to
disturb the DOC's decision. Gittens was afforded due process and there was
substantial credible evidence in the record to support the finding of guilt. The
sanctions were commensurate with the severity of the infraction and authorized
under N.J.A.C. 10A:4-5.1(e) for an asterisk offense, which "are considered the
most serious and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).
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Moreover, we have considered and reject Gittens's assertion that he was
denied due process. Although inmates are not entitled to the same due process
protections as criminal defendants, they are guaranteed certain limited
protections. See McDonald v. Pinchak, 139 N.J. 188, 194 (1995); Avant v.
Clifford, 67 N.J. 496, 523 (1975).
Here, Gittens was given written notice of the charge at least twenty-four
hours before the hearing was originally scheduled 2; provided with counsel
substitute; offered an opportunity to call and confront witnesses; and received a
written statement of the evidence relied upon and the reasons for the discipline.
Notwithstanding Gittens's assertion that he was denied the opportunity to call
Investigator Donna Alexander, his counsel substitute attested to the veracity of
the adjudication report, which stated Gittens declined the opportunity to present
the testimony of witnesses at the hearing. We therefore find nothing in the
record to suggest the hearing officer's determination was arbitrary, capricious,
or unreasonable.
Nor are we persuaded by Gittens's argument that he was improperly
denied the opportunity to take a polygraph examination. We have long
2
The hearing was held on January 3, 2020, following multiple postponements
to address Gittens's requests for confrontation of officers and a polygraph
examination, and to permit the hearing officer to review the record.
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recognized 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). Indeed,
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.
In the present matter, the administrator determined all issues raised by
Gittens could be decided by the hearing officer. Notably, the administrator did
not reference any issues of credibility raised in either of Gittens's requests. That
is because Gittens never denied possessing the documents. Instead, he sought a
polygraph examination to demonstrate he lacked the requisite intent to plan an
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escape and intended to use the documents for legitimate purposes. But the
hearing officer expressly rejected Gittens's explanation, finding his "alternate
reasoning [wa]s not supported and [wa]s irrelevant" here, where he possessed
documents that "log[ged] and dictate[d] every detail of the security of the
prison."
Finally, we note Gittens failed to raise the arguments asserted in points I,
IV and V before the hearing officer. "Normally, we do not consider issues not
raised below at an administrative hearing." In re Stream Encroachment Permit,
402 N.J. Super. 587, 602 (App. Div. 2008) (citing Bryan v. Dep't of Corr., 258
N.J. Super. 546, 548 (App. Div. 1992)); see also Zaman v. Felton, 219 N.J. 199,
226-27 (2014). Although Gittens has not advanced any such interests in support
of the arguments framed in these points, we have considered his belated
contentions 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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