Opinion
DOCKET NO. A-0096-13T3
03-23-2015
SEAN WASHINGTON, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
Sean Washington, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the New Jersey Department of Corrections. Sean Washington, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lucy E. Fritz, Deputy Attorney General, on the brief). PER CURIAM
Sean Washington, an inmate at New Jersey State Prison, appeals from a final determination of the Department of Corrections (Department) that he "us[ed] abusive or obscene language to a staff member," a non-asterisk prohibited act. N.J.A.C. 10A:4-4.1(a)(.304). The associate administrator upheld the hearing officer's finding of guilt, and her imposition of ten days of detention; ninety days of administrative segregation, which was suspended for sixty days; and sixty days of lost commutation time.
Department Inmate Disciplinary Regulations classify "asterisk offenses" as prohibited acts considered to be the most serious violations, resulting in the most severe sanctions. N.J.A.C. 10A:4-4.1; see also Hetsberger v. Dep't of Corr., 395 N.J. Super. 548, 556 (App. Div. 2007). Prohibited act .304 does not bear an asterisk.
On appeal, Washington principally argues: (1) the administrator erred in denying his request for a polygraph; (2) the hearing officer denied his right of confrontation; (3) the finding of a prohibited act lacked substantial evidence; (4) the agency violated various procedural safeguards; and (5) the associate administrator erred in affirming the charge "[b]ased on [Washington's] disciplinary history."
Having considered Washington's arguments in light of the record and applicable principles of law, we reverse and remand.
I.
The charges arose out of an incident near the law library in the prison school on April 26, 2013. Washington worked as a clerk there. The undisputed evidence is that at around 2:30 p.m., he attempted to leave the library to return to his housing unit. He said he wanted to retrieve papers. Senior Corrections Officer R. Habel was stationed near the library. He told Washington he could not go to his unit at that time, and ordered Washington to return to the school area. Washington complied, but shortly thereafter, appeared again at Habel's desk, this time announcing he intended to go to unit 2B, to deliver legal papers to inmates.
Washington and Habel dispute what happened next. Habel stated that he again ordered Washington to return to the library area. In response, Washington yelled, "Mother F----r, don't tell me what to do." Habel immediately notified Sergeant D. Miletta, who arrived at the scene and escorted Washington away from the school and library.
Habel's version of events was supported by written statements of three non-inmate witnesses. Officer D. Santiago was also stationed near the library and overheard the statement attributed to Washington. Library associate M. Burak observed Washington twice attempt to leave the school area. Although Burak did not overhear the statement quoted above, Burak wrote that the second time Washington returned, he demanded, in an increasingly loud tone, that the officer call a sergeant, stating, "Call me a SGT [sic], call me a SGT, man . . . call me a f-----g SGT." Instructional technician Daniel Williams provided a report that mirrored Burak's.
By contrast, Washington asserted that he calmly complied with Habel's order, and it was Habel who responded with coarse language. According to Washington, when he attempted to explain why he needed to go to unit 2B, Habel stated, "I don't give a f--k, you're not going anywhere." Habel then became physically threatening. Washington claimed he retreated toward the library and yelled, "call me a Sgt., I want to see a Sgt."
Washington's version was supported by the statements of six inmates who were in the school area at the time. None heard Washington use profanity, either in responding to Habel's refusal to allow him to go to unit 2B, or in requesting a sergeant. However, one inmate stated that he heard yelling, and observed Washington rapidly walk toward the library. The inmate then heard Washington demand to see a sergeant for several minutes, until he calmed down.
Based on Habel's report, Washington was initially charged on April 26, 2013, with two non-asterisk prohibited acts: "using abusive or obscene language to a staff member," N.J.A.C. 10A:4-4.1(a)(.304), and "refusing to obey an order," N.J.A.C. 10:4-4.1(a)(.256). In an extensive written statement provided to the hearing officer, Washington set forth his version of events. He also asked for a polygraph test, and invoked his right to confront and cross-examine his accusers.
Administrator Charles Warren denied Washington's request for a polygraph in a written memorandum dated May 2, 2013. Warren gave two reasons for his decision: "1) There are no issues of credibility in regards to the reporting Investigator or through investigation that was conducted by the disciplinary Sergeant. 2) There were no findings of new evidence pertaining to this issue."
The hearing officer convened on several separate dates in May 2013. At preliminary sessions, the hearing officer addressed Washington's polygraph request, and Warren's decision. What happened on the last date is disputed.
According to the hearing officer's written adjudication of the disciplinary charge, Washington "declined" his right of confrontation. He signed the adjudication form acknowledging that waiver. The hearing officer dismissed the .256 charge, and found Washington guilty of the .304 charge. She imposed the penalties discussed above.
By contrast, Washington asserted, in his internal appeal from the hearing officer's decision, that the hearing officer asked him to sign a blank adjudication form. Washington claimed he initially resisted, until the hearing officer assured him there was no need for confrontation because she was going to dismiss the .256 charge, downgrade the .304 charge, and give Washington only a verbal reprimand. Washington then signed the blank form. He claimed that the hearing officer thereafter imposed the more significant sanctions discussed above. Washington asserted, "If I knew I was [going to] get the sanction I received, I would've never signed. I would've demand[ed] confrontation." In his administrative appeal, Washington also argued that he should have been afforded a polygraph.
In a June 25, 2013, decision, associate administrator Kenneth Nelsen upheld the hearing officer's decision, explaining:
I have reviewed your appeal for the above charge and found that there was compliance with the New Jersey Administrative Code on inmate discipline, which prescribes procedural safeguards. The decision of the hearing officer and the sanction rendered is appropriate. Based on your disciplinary history the charge is upheld and appeal denied.
This appeal followed.
II.
A.
Our standard of review is well-settled. We will disturb a disciplinary decision of the Department only upon a finding that the decision is "arbitrary, capricious or unreasonable," or is unsupported "by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980).
In determining whether an agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:
"(1) [W]hether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors."Substantial evidence has been defined alternately as "such evidence as a reasonable mind might accept as adequate to support a conclusion," and "evidence furnishing a reasonable basis for the agency's action." Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (internal quotation marks and citations omitted).
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
We have noted that "[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." In re Stallworth, 208 N.J. 182, 194 (2011) (internal quotation marks and citation omitted). Yet, our review is not "perfunctory," nor is "our function . . . merely [to] rubberstamp an agency's decision[.]" Figueroa, supra, 414 N.J. Super. at 191. "[R]ather, our function is 'to engage in a careful and principled consideration of the agency record and findings.'" Ibid. (internal quotation marks and citation omitted).
To enable us to exercise this function, the agency must provide a reasonable record and statement of its findings. Blyther v. N.J. Dep't of Corr., 322 N.J. Super. 56, 63 (App. Div.), certif. denied, 162 N.J. 196 (1999). "No matter how great a deference we must accord the administrative determination, we have no capacity to review the issues at all unless there is some kind of reasonable factual record developed by the administrative agency and the agency has stated its reasons with particularity." Ibid. (internal quotation marks and citation omitted). "[W]e insist that the agency disclose its reasons for any decision, even those based upon expertise, so that a proper, searching, and careful review by this court may be undertaken." Balagun v. N.J. Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003). See also N.J.A.C. 10A:4-9.15 (stating that a hearing officer shall specify, on an adjudication form, the evidence relied upon in making a finding of guilt after a disciplinary hearing).
B.
Applying these principles, we consider first Washington's argument that the Department acted arbitrarily and capriciously in denying him a polygraph.
A prison administrator or designee may request a polygraph examination when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or . . . [a]s part of a reinvestigation of a disciplinary charge, . . . the Administrator or designee is presented with new evidence or finds serious issues of credibility." N.J.A.C. 10A:3-7.1(a)(1), (2). We have held that an inmate's request for a polygraph "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 v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). Fundamental fairness may be implicated when credibility is placed in issue by competing statements:
[A] prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding. Impairment may be evidenced by inconsistencies in the SCO'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. Conversely, fundamental fairness will not be effected when there is sufficient corroborating evidence presented to negate any serious question of credibility.
[Id. at 24.]
In this case, there obviously were inconsistencies in the written statements presented to the hearing officer. Two officers — Habel and Santiago — asserted that Washington said to Habel, "Mother F----r, don't tell me what to do." Washington denied it, and other inmates nearby said they heard nothing of the sort.
Although two non-uniformed employees asserted that Washington used an obscenity in his request for a sergeant, Habel did not cite that statement in his charge. Moreover, inmates asserted that Washington did not use obscenity, although one stated he was loud and agitated.
We are aware of no corroborating evidence that would resolve the competing versions of what happened. Moreover, absent live testimony and the opportunity to assess the demeanor of witnesses, there was no obvious basis upon which the hearing officer could have resolved this credibility dispute, other than with the aid of a polygraph.
Nor does the administrator's decision denying the polygraph explain the decision in terms of the standards set forth in Ramirez. The administrator stated that there were "no issues of credibility in regards to the reporting Investigator or through investigation that was conducted by the disciplinary Sergeant." It is not self-evident who the "reporting Investigator" was in this case. We are unaware that anyone conducted an investigation of the charges, as authorized by N.J.A.C. 10A:4-9.5 and -9.6. If "disciplinary Sergeant" referred to Sergeant Mattia, the record does not reflect that he conducted an investigation; rather, he provided a report that simply conveyed Habel's version of events.
The Department argues before us that any credibility issues could have been determined at the hearing, but Washington allegedly declined to confront or cross-examine witnesses against him. Although Washington disputes that he knowingly waived his confrontation rights, those rights are separate and distinct from the right to call live witnesses. Compare N.J.A.C. 10A:4-9.13 (regarding opportunity to call witnesses), with N.J.A.C. 10A:4-9.14 (regarding right to confront adverse witnesses). In any event, it is unclear how the hearing officer resolved the credibility dispute — and no rationale is provided — without live testimony or a polygraph. The associate administrator's decision is no more enlightening.
We turn next to Washington's claim that he did not knowingly and voluntarily waive his confrontation rights. Rather, he claims he was misled into waiving them, based on the hearing officer's promise that she would dismiss the .256 charge, and provide only a verbal reprimand for the .304 charge. We note that Washington expressly invoked his confrontation right in his written defense of the charges. Given the credibility issues, and the absence of a polygraph, it is unclear why Washington would have waived his confrontation rights. On the other hand, Washington's allegation is a significant challenge to the candor and integrity of the hearing officer.
We express no opinion on the merits of Washington's claim in this respect. Rather, we conclude that it was incumbent upon the administrator to address it in the context of Washington's internal appeal. Presumably, resolving the issue would have required hearing from Washington and the hearing officer, and perhaps any witnesses to Washington's execution of the adjudication form. As we discussed above, the agency is required to set forth its findings and reasons. As to this issue, it provided none.
We also agree with Washington that it was inappropriate for the associate administrator to base his decision to uphold the hearing officer's finding upon Washington's prior disciplinary record. The associate administrator stated, "Based on your disciplinary history the charge is upheld and appeal denied."
We recognize that prison disciplinary hearings are not governed by the Rules of Evidence. Cf. Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 250 (2008) (noting in the context of a proceeding before the Parole Board, the Rules of Evidence are relaxed in administrative hearings). Consequently, the hearing officer is not bound by N.J.R.E. 404(b), which limits the admission of evidence of prior bad acts or wrongs to show a propensity to act in conformity therewith. Propensity evidence may be relevant and probative. The Department has included Washington's prison record, including his disciplinary record, in the record on appeal.
We exclude propensity evidence under our Rules of Evidence, consistent with our common law tradition, not because the evidence is irrelevant, but because its probative value is outweighed by its prejudice. As Justice Jackson observed:
The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury . . . .
[Michelson v. United States, 335 U.S. 469, 475-76, 69 S. Ct. 213, 218, 93 L. Ed. 168, 173-74 (1948).]
The Department included in the record on appeal Washington's "Progress Notes Report," which includes his prior history of disciplinary infractions, which spanned the period between December 1996 and September 2007. He was found to have engaged in the following prohibited acts: assaulting any person, N.J.A.C. 10A:4-4.1(a)(*.002), in 1997; fighting with another person, N.J.A.C. 10A:4-4.1(a)(*.004), in 2001; unauthorized physical contact, N.J.A.C. 10A:4-4.1(a)(.013), in 2003; possession of anything not authorized, N.J.A.C. 10A:4-4.1(a)(.210), in 2001; refusing to obey, N.J.A.C. 10A:4-4.1(a)(.256), in 1996 and 1998; conduct which disrupts or interferes, N.J.A.C. 10A:4-4.1(a)(*.306), in 1997, 2001, and 2007; being in an unauthorized area, N.J.A.C. 10A:4-4.1(a)(.402), in 2004; and failure to comply with a written rule, N.J.A.C. 10A:4-4.1(a)(.709), in 1996.
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However, the record before us indicates that Washington's most recent disciplinary infraction occurred six years prior to the instant case. Additionally, neither the hearing officer's adjudication form, nor the associate administrator's decision, reflects what aspects of Washington's prior record was considered evidential. Finally, there is no indication that Washington was given notice that his prior record would be considered as evidence in support of the new charge.
Were the hearing officer to credit the statements of the corrections officers and non-uniformed employees, there would certainly be sufficient credible evidence to support the finding of a disciplinary violation by appellant. See Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 259 (App. Div. 2010) (stating that the appellate court reviews decisions on prison discipline to determine whether the findings are supported by substantial credible evidence). However, we cannot discern the basis for the hearing officer's implicit conclusion that those statements were more credible than the inmates' statement to the contrary, in the absence of live testimony, a polygraph, or other evidence corroborating the institutional witnesses or undermining the credibility of the inmate witnesses.
Accordingly, we reverse and remand so Washington may be afforded the opportunity to submit to a polygraph. Alternatively, the Department shall afford Washington a new hearing at which live testimony shall be heard. The administrator shall also determine whether Washington knowingly waived his right to confront or cross-examine adverse witnesses. If he did not, then he shall be afforded a new hearing so that he may exercise that right. In any event, the administrator shall not base a finding of guilt of the prohibited act based on Washington's prior disciplinary record without disclosing that record at the hearing, and providing Washington an opportunity to respond.
Given our disposition, we need not address Washington's remaining points on appeal.
Reversed and remanded. 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