JOSE ORTIZ VS. NEW JERSEY DEPARTMENT OF CORRECTIONSÂ (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NOT FOR PUBLICATION WITHOUT THE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-3089-15T1
JOSE ORTIZ,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________
Submitted May 2, 2017 – Decided May 12, 2017
Before Judges Leone and Vernoia.
On appeal from the New Jersey Department of
Corrections.
Jose Ortiz, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Randy
Miller, Deputy Attorney General, on the
brief).
PER CURIAM
Appellant, Jose Ortiz, is an inmate at the New Jersey Adult
Diagnostic and Treatment Center. He appeals a March 8, 2016 New
Jersey Department of Corrections (DOC) decision finding him guilty
of prohibited act .256, refusing to obey an order of a staff
member, N.J.A.C. 10A:4-4.1(a), and imposing sanctions. We affirm.
I.
Appellant was assigned to perform food service work in the
Center's main kitchen. On February 21, 2016, he was directed by
institutional training instructor Bianca Olowe to perform kitchen
duties different from those he was normally assigned. Appellant
refused to perform the duties as directed. His refusal was
witnessed by Olowe and senior corrections officer Hassan.1 Olowe
advised appellant he could request a change of job assignment, but
was required to perform the kitchen duties as directed until a
change in job assignments was approved and became effective.
Appellant continued to refuse to perform the directed duties.
Olowe then terminated appellant from the kitchen duty assignment.
Appellant was served with a notice charging him with
prohibited act .256, refusing to obey an order of a staff member,
N.J.A.C. 10A:4-4.1(a). Appellant pleaded not guilty and was
assigned a counsel substitute. The hearing commenced on February
24, 2016, but was adjourned. It concluded on March 2, 2016.
Appellant disputed that he refused an order to perform kitchen
duties. He contended that he said only that he "didn’t want to
1 The record does not include officer Hassan's first name.
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cook" because he "had a bad knee." Olowe said she repeatedly
directed him to perform the cooking duties and that he refused.
Appellant's three witnesses stated that appellant did not refuse
to work. They claimed he stated only that he wanted change his
position from cook to the kitchen's line service. One of the
witnesses stated that appellant "did not want to take
[responsibility] for cooking [and] want[ed] to step down from
cooking to line services."
The hearing officer found that Olowe and Hassan witnessed
appellant's refusal to perform cooking services, and that
appellant's witnesses acknowledged appellant said "he wanted to
do something else other than cook." She concluded that "inmates
must do what they are ordered to do" and upheld the charge. She
imposed thirty days of administrative segregation, thirty days
loss of commutation time and ten hours of extra duty as the
sanction.
Appellant filed an administrative appeal. The DOC issued its
final decision on March 8, 2016, finding appellant guilty of
committing prohibited act .256, but reducing the administrative
segregation time penalty to fifteen days, and suspending its
imposition for sixty days. This appeal followed.
3 A-3089-15T1
II.
The scope of our review in appeals from final decisions of
administrative agencies is "severely limited." George Harms
Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994). "Courts can
intervene only in those rare circumstances in which an agency
action is clearly inconsistent with its statutory mission or with
other State policy." Ibid.
Furthermore, when reviewing a final decision of the DOC
imposing disciplinary sanctions upon an inmate, our review is
limited to determining whether there is substantial evidence to
support the agency's finding and whether, in rendering its
decision, the DOC afforded the inmate the process due. See McDonald
v. Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139
N.J. 212, 219-22 (1995).
Appellant argues there was insufficient evidence supporting
the DOC's determination that he committed prohibited act .256. We
disagree. Olowe and Hassan stated that appellant refused Olove's
direct and repeated order to perform cooking services. Indeed,
appellant admitted he did not want to cook and provided an excuse,
a sore knee, for not doing so. In addition, appellant's witnesses
corroborated that appellant was directed to cook and that he said
he wanted to perform only line services. We recognize appellant
contends he did not refuse to cook, but we are satisfied there is
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"substantial evidence in the record," Figueroa v. New Jersey Dep't
of Corrections, 414 N.J. Super. 186, 191 (App. Div. 2010),
supporting the DOC's conclusion that appellant committed
prohibited act .256 by refusing Olowe's order.
Appellant also argues that the DOC violated his right to due
process. He contends the DOC failed to produce for his review the
written statements of his three witnesses during the hearing. The
record, however, shows the statements were introduced as exhibits
during appellant's hearing. Appellant signed the Adjudication of
Disciplinary Charge form acknowledging that the information
contained on "lines 1-15 accurately reflect[ed] what took place
at the inmate disciplinary hearing." A portion of line 14 shows
that the statements of the three witnesses were marked as exhibits
and introduced at the hearing. Thus, as appellant admitted by his
execution of the form, the statements were made available to him
during the hearing.
Similarly, appellant's contention that the DOC failed to
fully explain the basis for its decision is undermined by the
record. The hearing officer's decision detailed the testimony
supporting its finding that appellant committed the prohibited
act. The DOC's final decision addressed appellant's appeal of the
hearing officer's decision, explained that it "was based on
substantial evidence" and that Olowe's testimony and written
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reports were consistent, and found no evidence supporting
appellant's claim there was a "violation of standards or
misinterpretation of the facts."
Last, we reject defendant's contention the hearing process
violated his rights "under the doctrine of fundamental fairness."
Although prison disciplinary hearings are not criminal
prosecutions requiring "the full panoply of rights due a defendant
in such a proceeding," inmates are entitled to limited due process
protections. Avant v. Clifford, 67 N.J. 496, 522 (1975). The
protections include written notice of the charges at least twenty-
four hours prior to the hearing, an impartial tribunal which may
consist of personnel from the central office staff, a limited
right to call witnesses, the assistance of counsel substitute, and
a right to a written statement of evidence relied upon and the
reasons for the sanctions imposed. Id. at 525-33; see also
McDonald, supra, 139 N.J. at 193-96.
We discern no basis in the record to conclude appellant was
denied any of the limited due process rights to which he was
entitled. Avant, supra, 67 N.J. at 522. He received timely notice
of the charges, was assigned a counsel substitute, had a hearing
before an impartial hearing officer, received notice of the
evidence against him, and was provided the reasons for the
sanctions imposed.
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Appellant did not raise before the hearing officer his
contention that he was deprived of a fair hearing because the
hearing officer was not impartial and had otherwise improperly
decided the case before all of the evidence was presented. The
claim is based on allegations contained in a letter from counsel
substitute to the DOC's Supervisor of Disciplinary Hearing
Officers. The letter was sent outside of the record before the
hearing officer,2 and there is no evidence the claims were raised
before the hearing officer or that appellant objected to the
hearing officer's continued participation based on counsel
substitute's allegations. In fact, the Adjudication of
Disciplinary Charge form signed by appellant does not include any
allegation by appellant that the hearing officer was not impartial
or had stated she made a final decision prior to the presentation
of the evidence. Having deprived the hearing officer of the
opportunity to consider and address the allegations during the
proceeding, we will not consider appellant's contention because
2 The letter was not submitted as a part of the evidentiary record
before the hearing officer. Although it is addressed to the DOC,
it referenced the disciplinary proceedings against appellant and
another inmate, and stated that its purpose was "not to re-
litigate" the charges against the appellant but instead was to
lodge a complaint against the hearing officer and "against the
lack of transparency and fairness of the courtline process" at the
institution.
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it does not involve jurisdiction or matters of great public
interest. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).3
Appellant's remaining arguments are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
3 Even if were to consider counsel's substitute's allegations, we
are not convinced they demonstrate appellant was deprived of a
fair hearing. It is alleged the hearing officer said she made her
final decision before considering the statements from appellant's
witnesses. The record, however, shows the hearing officer
considered appellant's witnesses' statements and relied on them
in making her decision. In addition, we are satisfied that the
statement counsel substitute attributed to the hearing officer,
to the effect that inmates could avoid abuse by not coming to
prison in the first instance, was intemperate if made but does not
require the conclusion that the hearing officer could not render
a fair and impartial decision on the charge against appellant.
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