LIONELL G. MILLER 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NOT FOR PUBLICATION WITHOUT THE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-2682-18T2
LIONELL G. MILLER,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted January 13, 2020 – Decided March 20, 2020
Before Judges Sabatino and Sumners.
On appeal from the New Jersey Department of
Corrections.
Lionell G. Miller, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sookie Bae, Assistant Attorney General, of
counsel; Nicholas A. Sullivan, Deputy Attorney
General, on the brief).
PER CURIAM
Lionell G. Miller, an inmate under the care and custody of the New Jersey
Department of Corrections (DOC), appeals from the agency's final
determination upholding a finding of guilt and the sanctions imposed against
him for committing prohibited act *.002, assaulting any person, N.J.A.C. 10A:4-
4.1(a)(1)(ii).
On appeal, Miller argues:
I. THE DISCIPLINARY HEARING OFFICER
FAILED TO CONSIDER MITIGATING FACTORS
THAT SUPPORTED APPELLANT'S SELF-
DEFENSE CLAIM AND FAILED TO MAKE
SPECIFIC FINDINGS IN SUPPORT OF HER
ULTIMATE DECISION.
II. APPELLANT WAS DEPRIVED OF HIS RIGHT
TO DUE PROCESS AS A RESULT OF HIM NOT
BEING ALLOWED TO PRESENT DOCUMENTARY
EVIDENCE IN HIS DEFENSE.
III. THE ADMINISTRATOR'S DENIAL OF
APPELLANT'S REQUEST FOR A POLYGRAPH
TEST WAS AN ABUSE OF DISCRETION AND A
DENIAL OF APPELLANT'S RIGHT TO DUE
PROCESS OF LAW.
IV. THE DISCIPLINARY HEARING OFFICER'S
ADJUDICATION OF GUILT WAS NOT
SUPPORTED BY SUBSTANTIAL CREDIBLE
EVIDENCE. THUS, APPELLANT WAS DEPRIVED
OF HIS RIGHT TO DUE PROCESS OF LAW.
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We reverse and remand because we conclude the agency's decision denying
Miller a polygraph examination was a mistaken application of discretion
undermining the fundamental fairness of the proceeding.
I
The record from the agency's disciplinary proceedings reveal the
following. In his disciplinary report, East Jersey State Prison Corrections
Officer G. Saucedo stated, while trying to secure Miller in his cell, he got into a
dispute with Miller, who "meander[ed] and refused . . . orders" after exiting the
showers. Miller then "aggressively and violently" approached Saucedo, leading
to a physical altercation, during which Saucedo deployed oleoresin capsicum
spray ("OC spray" or "mace") on Miller after Saucedo fell to the floor.
According to Saucedo, while he was on the floor, Miller struck him numerous
times with a closed fist before DOC staff arrived to intercede. Sergeant
Adamson, and officers B. Krueger, E. Llerena, and P. Zegadlo issued reports
stating they observed Miller striking Saucedo while Saucedo was on the floor
and had to use force to remove Miller from Saucedo and subdue Miller by
placing him in handcuffs. Both Miller and Saucedo were taken to the hospital
emergency room for medical evaluations. Miller was charged with prohibited
acts *.002, assaulting any person, *.256, refusing to obey an order of any staff
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member, and *.306, conduct which disrupts or interferes with the security or
orderly running of the correctional facility.
As one might expect, Miller's recollection of the incident differed
completely from Saucedo's. In his statement of written defense, Miller
contended he was not exiting the shower but was on the telephone when he was
prematurely ordered by Saucedo to get off and return to his cell. He was using
two free five-minute phone calls allowed by the correctional facility's phone
carrier provider for Christmas holiday calls. According to Miller, as he walked
to his cell, Saucedo got angry over his vocal objections and, without provocation
or justification, maced him in the face. Saucedo then allegedly grabbed and
wrestled Miller to the floor. Miller claims he only got physical with Saucedo to
defend himself.
In support, Miller submitted three handwritten statements from fellow
inmates disclosing their versions of the incident. 1 Two of them stated they were
in their cells when they heard arguing, pointed their mirrors out of their cells
and saw Saucedo mace Miller without cause. The other stated he saw Miller
1
The record also contains a fourth statement by an inmate, who stated he "didn't
see what happened."
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and Saucedo get into an argument over Miller's use of the telephone and "it
looked like a physical altercation may [b]egin, and it [d]i[d]."
The initial disciplinary hearing date was postponed because Miller
requested a polygraph examination, video footage of the altercation, and copies
of the shower and phone logs. Prison Administrator Patrick A. Nogan denied
the polygraph request, stating in a memo to Miller that "[a]ny issues of
credibility can be addressed at the time of the hearing with the Disciplinary
Hearing Officer." Miller was later informed there was no video available of the
altercation, and shower and phone records were not available because they are
discarded at the end of each day. 2
The next hearing date was postponed because Miller requested that
Saucedo answer confrontational questions.
When the hearing date was eventually conducted, Miller reiterated his
claim he was defending himself from Saucedo's unprovoked assault with mace.
After considering all the evidence, including Saucedo's answers to Miller's
confrontation questions, Miller was found guilty of *.002, assaulting any person,
and he was sanctioned 211 days of administrative segregation, 211 days loss of
2
The DOC's submission does not explain why these potential evidential items
are discarded or deleted at the end of the day.
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commutation time, and thirty days loss of recreational privileges. He was found
not guilty of prohibited acts *.256, refusing to obey an order of any staff
member, and *.306, conduct which disrupts or interferes with the security or
orderly running of the correctional facility. The hearing officer's hand-written
decision is difficult to decipher, but it appears the contentions by DOC staff
were determined to be credible while Miller and his witnesses were not credible
to sustain Miller's self-defense claim.
Prison Administrator Nogan denied Miller's administrative appeal and
upheld the hearing officer's finding of guilt and sanctions. The administrator
explained there was compliance with inmate discipline regulations, and the
hearing officer's decision was based on substantial evidence without
misinterpreting any facts and there were no extenuating circumstances
outweighing the substantial evidence.
II
We first address Miller's contention in point III of his merits brief that his
due process rights were violated by Prison Administrator Nogan's denial of his
request to take a polygraph examination. He contends that, in accordance with
Ramirez v. Dep't of Corr., 382 N.J. Super. 18 (App. Div. 2005), the DOC abused
its discretion in not giving him a polygraph examination, which would have
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exposed inconsistencies in Saucedo's assertions as to how the altercation
occurred. Specifically, Miller argues Saucedo reported he was falling to the
ground when he deployed his OC spray, but in his confrontation answers he
states he was five feet away from Miller when he used the OC spray. Miller
also maintains the examination was necessary "to strengthen his credibility and
his claim that he was acting in self-defense to protect his person against unlawful
force that he was the victim of."
N.J.A.C. 10A:3-7.1 allows the prison administrator to request a polygraph
in certain situations including circumstances where an inmate charged with
disciplinary infractions has sought such a polygraph. While "[a]n 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), an inmate only has a right to a polygraph
test in certain situations. Ramirez, 382 N.J. Super. at 20; but see Johnson v. N.J.
Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997) (concluding the appellant
did not "have the right to a polygraph test," citing N.J.A.C 10A:3-7.1(c)). "[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."
Ramirez, 382 N.J. Super. at 20. The routine administration of a polygraph "is
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clearly not required on every occasion that an inmate denies a disciplinary
charge against him." Id. at 23-24. "[F]undamental fairness will not be [a]ffected
when there is sufficient corroborating evidence presented to negate any serious
question of credibility." Id. at 24. Such "[i]mpairment [of fundamental fairness]
may be evidenced by inconsistencies in the [corrections officer'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." Ibid. On the other hand, a polygraph would not be required
to assure fundamental fairness "when there is sufficient corroborating evidence
presented to negate any serious question of credibility." Ibid. We review the
administrator's decision to deny a polygraph examination for abuse of discretion.
Ibid.
Applying these standards, the record does not support Miller's contention
that he was entitled to a polygraph examination because Saucedo gave
inconsistent statements as to where Saucedo claimed to be when the altercation
with Miller occurred and where he was when he deployed the OC spray on
Miller. Saucedo's report clearly states he deployed his OC spray when he was
being pushed down by Miller, which occurred after Miller was about
"approx[imately five] feet" away and "aggressively and violently charged" him.
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In his confrontation answer, Saucedo stated he was within five feet from Miller
when the altercation occurred, not when he used his OC spray on Miller. The
confrontation question fails to indicate what constitutes "the altercation,"
however, it seems logical and apparent Saucedo believed that the altercation
occurred when Miller was about five feet away and allegedly charged him, after
refusing his order to go to his cell.
On the other hand, there were serious questions of credibility before the
hearing officer. Although four DOC staff members responded to the altercation
between Miller and Saucedo, none of them saw how it started. Miller and two
other inmates claiming to have witnessed the start of the altercation, assert
Saucedo was the aggressor by macing Miller without provocation. Another
inmate witness joined Miller in refuting Saucedo's assertion that Miller was
coming out of the shower area just prior to the altercation; they instead contend
Miller was on the phone when confronted and directed by Saucedo to return to
his cell. Significantly, the DOC reported – without sufficient explanation – there
was no video of the incident available.
Under these circumstances, there are fundamental fairness concerns. We
conclude it was arbitrary and unreasonable for the DOC to deny Miller's request
for a polygraph examination. There are "serious questions of credibility" not
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dispelled sufficiently to justify the polygraph denial. We accordingly remand
this matter with a direction to the DOC to arrange the requested polygraph
examination. In light of our decision, we do not address Miller's remaining
arguments.
Following the test results, a new hearing shall be conducted taking into
account the polygraph evidence and any other proofs that may be developed.
We do not intimate in advance, of course, any view of the outcome of these
procedures. In particular, we do not comment on whether the disciplinary
charge may be upheld if, hypothetically, appellant does not fail the polygraph,
or the results are inconsistent.
Reversed and remanded for further proceedings in accordance with this
opinion. We do not retain jurisdiction.
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