DAVID CONNOLLY v. NEW JERSEY DEPARTMENT OF CORRECTIONS (NEW JERSEY DEPARTMENT OF CORRECTIONS) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3966-19
DAVID CONNOLLY,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
___________________________
Submitted December 14, 2021 – Decided February 9, 2022
Before Judges Currier and Smith.
On appeal from the New Jersey Department of
Corrections.
David Connolly, appellant pro se.
Andrew J. Bruck, Acting Attorney General, attorney for
respondent (Jane C. Schuster, Assistant Attorney
General, of counsel; Daniel S. Shehata, Deputy
Attorney General, on the brief).
PER CURIAM
Petitioner David Connolly, an inmate at South Woods State Prison,
appeals from a Department of Corrections (DOC) final decision finding that
Connolly committed prohibited act *.252 1, encouraging others to riot, and
imposing sanctions. Connolly argues that the DOC's final decision was arbitrary
and capricious and that the DOC violated his due process rights. We affirm for
the reasons set forth below.
Connolly was an inmate at Southern State Correctional Facility (SSCF).
On April 7, 2020, he was part of an inmate group, which was in close contact
with persons diagnosed with COVID-19 symptoms being transferred to Housing
Unit 2-Right (Unit 2R), the designated temporary “quarantine unit” at SSCF.
Two days later, on April 9, the first inmates were relocated into the unit without
incident. While the remaining inmates were being transferred to the unit, a
disturbance broke out at approximately 9:30 p.m. The inmates already in Unit
2R barricaded the dayroom, refused to leave, and demanded that no more
inmates be transferred to the unit. Corrections officers issued several commands
1
On January 14, 2021 the New Jersey Department of Corrections adopted
amendments to Title 10A Chapter 4 Inmate Discipline. One of the amendments
consolidated prohibited act *.252 encouraging others to riot with *.251 rioting.
As such, the current administrative code reads "*.251 rioting or encouraging
others to riot". See N.J.C.A. 10A:4-4.1(a)(1) (2021); 53 N.J.R. 923(a) (May 17,
2021).
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to the inmates to disperse and return to their bunks in order to report for the
standard inmate count. They were directed to remain in their respective wings
until 6:30 a.m. the next day.
The inmates ignored the verbal commands. Security camera video showed
multiple inmates continuing to mill about Unit 2R after they had been ordered
to disperse. The video also showed several inmates using phones and kiosks,
standing on chairs, with some using a table to barricade the unit entrance.
Due to COVID-19 health and safety protocols, the newly transferred
inmates were wearing face masks, making them difficult to identify. Inmate
movement throughout the area blocked the officers' view of the bu nks.
Additional officers eventually entered the unit at 12:35 a.m., nearly three hours
after the incident began, and ordered the inmates to their bunks. All sixty -three
inmates in Unit 2R were secured, processed, and transported to South Woods
State Prison. The last group of inmates was processed and transferred at 3:30
a.m. on April 10.
Connolly was charged with *.252, encouraging others to riot, a prohibited
act under N.J.A.C. 10A:4-4.1(a). Connolly was represented by substitute
counsel and pleaded not guilty to the charge. The DOC produced three officers
for purposes of confrontation. The confrontation with the officers was not in -
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person, but limited to written questions, as the DOC determined that in -person
confrontation for sixty-three separate inmate hearings was too hazardous due to
the COVID-19 pandemic. The DOC also required all inmates charged to use the
same set of written questions, as the agency concluded that separate
confrontation requests to the same DOC witnesses on the same issues would be
repetitive and would disrupt facility operations. The DOC denied the inmates
the opportunity to pose follow-up questions to the officers because of
operational concerns. A prison administrator denied Connolly’s request for a
polygraph because the administrator determined there were "no issues or any
other concerns noted that [could not] be addressed by the [h]earing [o]fficer at
[the] hearing." At the hearing, Connolly admitted to being one of the sixty -three
inmates housed in Unit 2R who refused to comply with the orders to disperse.
The hearing officer found sufficient credible evidence to support the
following six findings:
1) Connolly was part of a group that received orders;
2) the orders were of such a nature that any reasonable
person would have understood the orders;
3) the orders were loud enough that the entire group
could have heard the orders;
4) Connolly had ample time to comply with the orders;
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5) no inmate, including Connolly, complied with staff
orders to disperse and return to their bunks; and
6) Connolly was part of the group as evidenced by the
escort reports.
The hearing officer rejected Connolly's argument that he was not guilty because
he could not be identified on camera as one of the inmates barricading the
dayroom. The hearing officer found there was "no requirement[] to be the 'main
individual' to be [found] guilty" of violating *252. The DOC adopted the
findings of the hearing officer in its final decision of May 7, 2020. Connolly
appeals, contending that his due process rights were violated because he was
denied access to the evidence against him and that he was not given fair
opportunity to challenge the evidence against him. He also contends that the
finding of guilt against him was not based on substantial credible evidence in
the record.
Our role in reviewing the decision of an administrative agency is limited.
In re Taylor, 158 N.J. 644, 656 (1999); Figueroa v. N.J. Dep't of Corr., 414 N.J.
Super. 186, 190 (App. Div. 2010). We will not upset the determination of an
administrative agency absent a showing: that it was arbitrary, capricious, or
unreasonable; that it lacked fair support in the evidence; or that it violated
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legislative policies. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)
(citing Campbell v. Dep't of Civ. Serv., 39 N.J. 556, 562 (1963)).
DOC has broad discretion in all matters regarding the administration of a
prison facility, including disciplinary infractions by prisoners. Russo v. N.J.
Dep't of Corr., 324 N.J. Super. 576, 583 (App. Div. 1999). Therefore, we may
not vacate an agency's determination because of doubts about its wisdom or
because the record may support more than one result. De Vitis v. N.J. Racing
Comm'n, 202 N.J. Super. 484, 489-90 (App. Div. 1985).
A prison disciplinary proceeding "is not part of a criminal prosecution and
thus the full panoply of rights due a defendant in such a proceeding does not
apply." Avant v. Clifford, 67 N.J. 496, 522 (1975) (quoting Morrissey v.
Brewer, 408 U.S. 471, 480 (1972)). Thus, inmates are afforded certain limited
due process protections when facing disciplinary charges. Malacow v. N.J.
Dep't of Corr., 457 N.J. Super 87, 93 (App. Div. 2018) (discussing Avant, 67
N.J. at 525-33).
The discipline of prisoners for violations of rules and regulations rests
solely within the discretion of the DOC. See, e.g., N.J.S.A. 30:1B-6, -10. The
due process safeguards established by the DOC for the administration and
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implementation of inmate discipline are set forth in N.J.A.C. 10A:4-1.1 to -12.3.
Pursuant to N.J.A.C. 10A:4-4.1(a):
An inmate who commits one or more of the following
numbered prohibited acts shall be subject to
disciplinary action and a sanction that is imposed by a
[hearing officer] . . . . Prohibited acts preceded by an
asterisk (*) are considered the most serious and result
in the most severe sanctions . . . . Prohibited acts are
further subclassified into five categories of severity
(Category A through E) with Category A being the most
severe and Category E the least severe.
[N.J.A.C. 10A:4-4.1(a) (2017).]
A Category A offense, including prohibited act *.252, encouraging others to
riot, "shall result in a sanction of no less than 181 days and no more than 365
days of administrative segregation [2] per incident." Ibid. A hearing officer's
finding that an inmate committed a prohibited act must be supported by
"substantial evidence." N.J.A.C. 10A:4-9.15(a).
Applying these principles, we discern no basis to disturb the DOC's
decision.
2
One of the amendments to N.J.A.C. 10A:4-4.1(a) changed the punishment
parameters for a Category A offense. Now, inmates found guilty of a category
A offense face a sanction of "five to 15 days in an Adjustment Unit and up to
365 days in a Restorative Housing Unit (R.H.U.) per incident . . . ." N.J.A.C.
10A:4-4.1(a)(1) (2021).
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Connolly's unsupported due process assertion that he was denied access to
evidence or the opportunity to confront witnesses is belied by the record. Each
of the sixty-three inmates subject to DOC discipline received discovery. The
record shows evidence produced during the investigation yielded several
statements as well as surveillance videos. Connolly received answers to written
interrogatories from corrections officers in lieu of live testimony. Although
inmates are not entitled to the same due process protections as criminal
defendants, they are guaranteed certain limited protections. See McDonald v.
Pinchak, 139 N.J. 188, 194 (1995); Avant, 67 N.J. at 523. Connolly was: given
written notice of the charge at least twenty-four hours before the hearing was
originally scheduled; provided with counsel substitute; offered an opportunity
to call and confront witnesses; and received a written statement of the evidence
relied upon and the reasons for the discipline. In view of the sheer volume of
inmates charged in this one incident and the ongoing pandemic impact on
facility operations, we reject Connolly's argument that he was improperly denied
due process. As to follow-up questions, N.J.A.C. 10A:4-9.13(e) states that
hearing officers may deny requests "to ask certain questions . . ." so long as "the
reasons for the denial [are] . . . specifically set forth on the Adjudication of
Disciplinary Report." N.J.A.C. 10A:4-9.13(e). Here, the hearing officer denied
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follow-up questions because of the time and operational constraints associated
with adjudicating sixty-three separate disciplinary hearings during the ongoing
pandemic. We find nothing in the record to suggest that the DOC's considered
use of its discretion here was arbitrary, capricious, or unreasonable.
Turning to Connolly's argument that there was an insufficient factual basis
to support the hearing officer's finding of guilt, we find again that the record
undercuts this argument. Although the inmates wore masks, the video evidence
and reporting officers' statements exposed the inmates' non-compliance with the
dispersal order. The hearing officer found the inmate statements not credible
because the inmate-witnesses had the opportunity to collaborate on their stories
while quarantined together after the incident. There was sufficient credible
evidence in the record from which to find that Connolly defied repeated orders,
refused to disperse, and return to his bunk to be counted. That conduct interfered
with the facility's attempt "to manage th[e unit's] volatile environment." Russo,
324 N.J. Super. at 584.
To the extent we have not specifically addressed Connolly's remaining
contentions, we find they lack sufficient merit to warrant discussion in our
written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
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