KEVIN JACKSON VS. GARY M. LANIGAN(L-256-14, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1815-15T3
KEVIN JACKSON,
Plaintiff-Appellant,
v.
GARY M. LANIGAN, Commissioner,
N.J. Dept. of Corrections,
Administrator of New Jersey State
Prison, SGT. C.L. SPIRES,
Correctional Officer of New
Jersey (N.J.S.P.), SCO RAMOS,
Correctional Officer of New Jersey
(N.J.S.P.), CHIEF ADMINISTRATIVE
Disciplinary Hearing Officer, For
New Jersey Dept. of Corrections,
Defendants-Respondents.
_____________________________________
Submitted June 1, 2017 – Decided July 14, 2017
Before Judges Alvarez and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Docket No.
L-256-14.
Kevin Jackson, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondents (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Marvin
L. Freeman, Deputy Attorney General, on the
brief).
PER CURIAM
Kevin Jackson, an inmate in the custody of the Department of
Corrections (DOC), appeals from an order dated December 4, 2015,
granting a motion for summary judgment in favor of respondents and
dismissing Jackson's complaint with prejudice.
While incarcerated at New Jersey State Prison in 2008, Senior
Corrections Officers Spires and Ramos charged Jackson with
violation of two disciplinary infractions. Jackson received
notice of the charges and the incident was investigated within
forty-eight hours. A hearing was conducted before a hearing
officer from the DOC wherein Jackson received the assistance of a
counsel substitute.1 After administrative proceedings were
conducted, it was determined that Jackson did not commit
disciplinary infraction .402, being in an unauthorized area, but
was found guilty of disciplinary infraction *.009,2 misuse,
possession, distribution, sale, or intent to distribute or sell
an electronic communication device, in violation of N.J.A.C.
1
"'Counsel substitute' means an individual, such as an inmate
paralegal, teacher or social worker, who represents and defends
an inmate at a disciplinary hearing proceeding that is conducted
within a correctional facility under the jurisdiction of the
[DOC]." N.J.A.C. 10A:1-2.2.
2
"'Asterisk offense' means a prohibited act preceded by a number
and an asterisk that is considered the most serious and results
in the most severe sanction(s)." N.J.A.C. 10A:1-2.2.
2 A-1815-15T3
10A:4-4.1. Jackson was sanctioned to administrative segregation.
While in administrative segregation, Jackson was not permitted to
have contact visits,3 but was allowed to receive visitors through
a window or via video conference.
As permitted by N.J.A.C. 10A:4-11.1, Jackson administratively
appealed the charges to the prison administrator who upheld the
decision of the hearing officer, constituting a final agency
decision. Jackson appealed to this court. While the case was
pending, DOC moved for a remand for further proceedings, which was
granted.
Upon remand, a rehearing was conducted. At the hearing,
Jackson was provided with the opportunity to cross-examine the
same two witnesses he examined at the original hearing and submit
written questions to the other seven witnesses. At the conclusion
of the hearing, Jackson was again found not guilty of infraction
.402, but guilty of the *.009 infraction. Jackson administratively
appealed the decision, which was upheld by the prison
administrator. An appeal to this court followed.
We reversed, finding the disciplinary charges were not
adequately supported by competent evidence as required by N.J.A.C.
3
"'Contact visit' means a visit between an inmate and a visitor
where there is no barrier (such as a window or wall) between the
inmate and visitor." N.J.A.C. 10A:1-2.2.
3 A-1815-15T3
10A:4-9.15(a). Jackson v. Dep't of Corr., No. A-1456-09 (App.
Div. July 26, 2012). We ordered the infractions removed from
Jackson's prison file and all sanctions expunged. Id. at 9.
Subsequently, Jackson's contact visits were reinstated, his
custody status was lowered, and he was transferred to South Woods
State Prison.
Upon transfer, Jackson filed a civil complaint naming
respondents as defendants averring that the disciplinary charges
against him were false. The complaint contained eleven causes of
action, including State Constitutional violations and claims under
the Tort Claims Act (TCA) and N.J.S.A. 30:1B-6. In response,
respondents filed a motion seeking dismissal of the complaint.
The motion was granted by Judge Darrell M. Fineman in a
comprehensive and well-reasoned written opinion.4 This appeal
followed.
On appeal, Jackson raises the following arguments:
POINT I
THE PREMATURE GRANT OF SUMMARY JUDGMENT IN THE
ABOVE-CAPTIONED [] MATTER MUST BE REVERSED AND
REMANDED BACK WITH INSTRUCTION.
4
Although unclear from the record, we presume that respondents
filed a motion in lieu of a responsive pleading pursuant to Rule
4:6-2, which was then converted by the court to a motion for
summary judgment.
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POINT II
SGT. SPIRES AND SCO RAMOS [DO] NOT HAVE
ABSOLUTE IMMUNITY FROM THEIR KNOWINGLY[,]
INTELLIGENTLY, AND DELIBERATE INTENTIONAL
INDIFFERENCE ILLEGAL ACTION AND CONDUCT THAT
[LED] TO THE FALSIFYING AND [FABRICATION] OF
THE OFFICIAL STATE DOCUMENTS AGAINST/UPON
APPELLANT.
POINT III
APPELLANT SUBMIT[S] THERE'S MATERIAL AND
GENUINE FACTUAL DISPUTE OF ELEMENTS THAT
TRIGGERED THE CAUSE OF ACTION HEREIN.
POINT IV
SGT. SPIRES AND SCO RAMOS['] ILLEGAL CONDUCT
WAS COMMITTED AND TRIED TO BE COVERED UP,
UNDER COLOR-OF-BADGE AND COLOR-OF-LAW, AS
COLOR-OF-AUTHORITY.
POINT V
THE COMITY RULE MUST APPLY IN THIS COURT
CONTRARY TO THE LOWER COURT'S GRANT OF SUMMARY
DISPOSITION.
POINT VI
APPELLANT WAS DEPRIVED TO IMPEACH
[RESPONDENTS] [] FURTHER WITH EVIDENCE
CONTRARY TO N.J.S.A. 2A:84A-36, N.J.R.E. 609,
TO CALL CRUCIAL AND IMPORTANT WITNESSES THAT
WOULD HAVE REFUTED SGT. SPIRES AND SCO
RAMOS['] INITIAL FABRICATED AND FRAUD[ULENT]
ADMINISTRATIVE DISCIPLINARY CHARGES IN THE
FIRST PLACE.
Having considered these arguments in light of the record and
controlling principles of law, we affirm for the reasons stated
in Judge Fineman's opinion. We add only the following.
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We exercise plenary review of the trial court's grant of
summary judgment, and apply the same standard that governs the
trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320,
330 (2010). We determine whether the motion record shows a genuine
issue of material fact, viewing the evidence in a light most
favorable to the non-moving party, and whether the movant is
entitled to judgment as a matter of law. See Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 523 (1995); R. 4:46-2(c). A
court must determine "whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is
so one-sided that one party must prevail as a matter of law." Id.
at 533 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).
Absent a genuine factual dispute, the issue presented is legal,
which we review de novo. Henry, supra, 204 N.J. at 330.
We confine our discussion to Jackson's state constitutional
claims wherein he asserts violations under the New Jersey Civil
Rights Act (Act), N.J.S.A. 10:6-1 to -2. The Act was adopted in
2004 "for the broad purpose of assuring a state law cause of action
for violations of state and federal constitutional rights and to
fill any gaps in state statutory anti-discrimination protection."
Owens v. Feigin, 194 N.J. 607, 611 (2008). In Tumpson v. Farina,
218 N.J. 450, 474 (2014), our Supreme Court noted that despite the
6 A-1815-15T3
sparse legislative history, it "tells us that our State Civil
Rights Act is modeled off of the analogous Federal Civil Rights
Act, 42 U.S.C.A. § 1983, and is intended to provide what Section
1983 does not: a remedy for the violation of substantive rights
found in our State Constitution and laws."
Procedural due process requires adequate notice and an
opportunity to be heard. Rivera v. Bd. of Review, 127 N.J. 578,
583 (1992) (citation omitted). However, prison disciplinary
proceedings are not criminal proceedings and, therefore, inmates
charged with disciplinary infractions are not entitled to the full
"panoply of rights" afforded to a criminal defendant. Avant v.
Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v. Brewer,
408 U.S. 471, 480, 92 S. Ct. 2593, 2601, 33 L. Ed. 2d 484, 495
(1972)). Nonetheless, inmates facing disciplinary charges are
entitled to limited protections before sanctions may be imposed
against them. Ibid. These rights are: (1) notice in writing of
the allegations against the inmate at least twenty-four hours
before the hearing; (2) a hearing before an impartial tribunal;
(3) the right to call witnesses and present evidence, subject to
certain limitations due to the need for security and order in a
prison setting; (4) a right to confront and cross-examine adverse
witnesses, subject to the same limitations; (5) a right to a
written statement specifying the evidence relied upon by the
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tribunal and the reasons underlying the imposed sanctions; and (6)
the assistance of counsel substitute where the inmate is illiterate
or unable to mount a defense, or where the charges are complex.
Id. at 525-29.
Consistent with the limited procedural rights that an inmate
facing disciplinary sanctions must receive, the record
demonstrates that the DOC adhered to all of those rights set forth
in Avant. We conclude, therefore, that there was no violation of
Jackson's rights under the Act.
Affirmed.
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