Feagins v. N.J. Dep't of Corr.

Full title: MALACHI FEAGINS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS…

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Jan 8, 2016

DOCKET NO. A-4954-13T2 (App. Div. Jan. 8, 2016)

Opinion

DOCKET NO. A-4954-13T2

01-08-2016

MALACHI FEAGINS, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.

Malachi Feagins, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from the New Jersey Department of Corrections. Malachi Feagins, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Randy Miller, Deputy Attorney General, on the brief). PER CURIAM

Malachi Feagins — a prison inmate serving a life sentence — appeals a final decision, in which the Department of Corrections concluded he committed prohibited act *.803/*.704, attempting to perpetuate frauds, deceptions, confidence games, riots or escape plots, N.J.S.A. 10A:4-4.1(a). Because we agree with Feagins that the hearing officer inadequately described the confidential information upon which she relied, we remand for further findings.

The record reveals this disciplinary matter arose from the Special Investigation Division's investigation into a large conspiracy to obtain contraband, such as drugs and cellphones, through compromised prison staff. As part of its investigation, SID learned that, between September 2011 and February 2013, Feagins received three money orders — in the amounts of $100, $150, and $125 — which were deposited into his inmate trust account. Believing this to be part of the alleged conspiracy, the Department instituted disciplinary charges against Feagins.

Feagins was served with notice of the charges on April 15, 2014. At the hearing commenced eight days later, Feagins pleaded not guilty and was permitted counsel-substitute. Feagins declined to make a statement and chose not to request the gathering of statements from witnesses or confront or cross-examine adverse witnesses, but his counsel-substitute claimed due process violations, argued the absence of a prohibition on an inmate receiving money from a family member,¹ and sought leniency.

1 The three money orders, on the surface, would suggest they were provided by family members.

The hearing officer found Feagins guilty and ordered ten days of detention, ninety days of administrative segregation, sixty days loss of commutation time, and confiscation of the funds. Feagins unsuccessfully appealed administratively and now appeals to us, arguing:

THE DECISION OF THE HEARING OFFICER VIOLATES DUE PROCESS AND THEREFORE, SHOULD BE VACATED.

A. The Decision of the Hearing Officer Should be Vacated Because the Determination was not Based on Substantial Evidence That Appellant Attempted to Perpetrate a Fraud.

B. The Hearing Officer was Instructed, "Pre" Hearing Conclusion, on the Imposition of Sanction.

C. [Counsel-Substitute] Erred in Failing to Request Pursuant to Fisher v. Hundley ² a Summary of the C.I.'s Statement and the [Hearing Officer] Erred in Failing to Note the Required Information in the Record.

2 Fisher v. Hundley, 240 N.J. Super. 156 (App. Div. 1990). --------

The issue upon which we focus was governed by a regulation that requires — when a "decision of guilt is based on evidence which includes confidential information" — that the hearing officer set forth "[t]he informant's statement (either in writing or as reported) in language that is factual rather than a conclusion, and based on the informant's personal knowledge of the matters contained in the statement." N.J.A.C. 10A:4-9.15(b)(1)(ii). Here, the hearing officer set forth only the following conclusory description of the confidential information upon which she relied:

This is a concise summary of evidence reviewed from documents listed on CC-I. IM was able to review the list labeled CC-I. The documents referenced in CC-I are being kept confidential due to an ongoing criminal investigation and to deter the possibility of retaliation.

C/W #1 confirms monies were sent into inmate Feagins as payment for narcotics sold within NJSP. Info obtained corroborated witnesses narrative. People(s) who received narcotics confirmed this pattern of activity was standard to launder narcotics trafficking proceeds.

We have recognized that even the minimal due process safeguards applicable in prison disciplinary matters require greater specificity than provided here. Fisher, supra, 240 N.J. Super. at 160-61; see also Johnson v. Dep't of Corr., 375 N.J. Super. 347, 351-53 (App. Div. 2005).

We observed in Fisher that a hearing officer's failure to adequately comply with N.J.A.C. 10A:4-9.15(b)(1)(ii) places an inmate "in the Kafkaesque predicament of having to defend against evidence that was totally undisclosed." 240 N.J. Super. at 158. In such instances, this predicament is further compounded by an appellate court's inability to conscientiously review an adjudication based on unspecified findings; it practically requires an appellate court's acceptance on faith of the agency's conclusion there was evidence to support the determination.

A full and fair description of the evidence, as required by the applicable administrative regulation, "strikes a balance between the need to protect informants from retaliation and the possible unfairness of concealing from an inmate evidence that is used to establish his guilt." Ibid. We find the hearing officer's conclusory statements here did not meet the requirements or spirit of the administrative regulation, and we direct the agency's consideration, following today's decision, of our comments in Fisher:

[T]o the extent the hearing officer may not safely disclose to the inmate information and findings that the provisions of N.J.A.C. 10A:4-9.15(b)1 require him to specify and make, the officer shall specify that information and make those findings in a separate writing, which shall be made a part of the confidential record. That material shall thereafter be considered by the superintendent or his designee when determining whether concealment was warranted and whether there was "substantial evidence" of the inmate's guilt. N.J.A.C. 10A:4-9.15(a). In the event of an appeal to this court, that material shall be made part of the confidential record on appeal.

[240 N.J. Super. at 161.]

We remand for the hearing officer's compliance with N.J.A.C. 10A:4-9.15(b), following which the superintendent or his designee shall reconsider Feagins's administrative appeal.

Remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION