STATE OF NEW JERSEY VS. T.R.G.(13-01-0003, CAMDEN COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5380-14T2
THOMAS LIDDELL,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
Submitted March 29, 2017 – Decided April 5, 2017
Before Judges Fuentes and Carroll.
On appeal from the New Jersey Department of
Corrections.
Thomas Liddell, appellant pro se.
Christopher S. Porrino, Attorney General,
attorney for respondent (Lisa A. Puglisi,
Assistant Attorney General, of counsel; Kevin
J. Dronson, Deputy Attorney General, on the
brief).
PER CURIAM
Thomas Liddell is an inmate currently confined at the Adult
Diagnostic and Treatment Center (ADTC) in Avenel. He appeals from
the June 26, 2015 final decision of the Department of Corrections
(DOC) imposing disciplinary sanctions upon him for committing
prohibited acts .256 (refusing to obey an order of any staff
member) and .402 (being in an unauthorized area), in violation of
N.J.A.C. 10A:4-4.1(a). We affirm.
According to the DOC's proofs, Liddell was in the ADTC's law
library at 8:20 a.m. on June 17, 2015. Senior Corrections Officer
R. Bradley ordered Liddell to leave after ascertaining his name
did not appear on the daily library schedule. Liddell ignored the
order and remained in the library. Bradley then notified his
superior officer, Sergeant Christopher Lewandowski. Lewandowski
reviewed the March 5, 2015 and updated June 15, 2015 law library
schedules, and the daily movement locator, and confirmed that
Liddell was not on any of the schedules. Lewandowski ordered
Liddell to pack his belongings and return to his housing unit.
Liddell complied with this request.
On June 18, 2015, Liddell was served with the disciplinary
charges. The disciplinary hearing was originally scheduled for
June 23, 2015, but was postponed twice because Liddell sought
confrontation of Bradley and identified two inmates from whom he
wished statements. Hearing Officer Nolley conducted the hearing
on June 26, 2015. Liddell pled not guilty to the charges.
At the hearing, Liddell submitted a certified statement
averring he informed Bradley that he "had not received an
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authorized up-to-date[] [library] schedule." He further
maintained Bradley never spoke to him "directly" about his presence
in the law library, nor did any ADTC staff member give him a
"direct order" to leave the law library. Witness statements of
inmates Mario Palomo and Douglas Zarchy were obtained by the DOC
and reviewed by the hearing officer. Palomo stated Bradley did
not address Liddell when he entered the law library nor order
Liddell to leave. In contrast, Zarchy wrote, "Bradley sternly
said that [] Liddell was not scheduled to work [in the library]
that morning and was to return to his unit."
Liddell submitted confrontation questions for Bradley to
answer during the hearing. In her adjudication report, Nolley
noted Bradley "was direct [and] positive" that he spoke to Liddell
and twice told him to leave. Further, Bradley "stated they made
eye contact [and] that [Liddell] acknowledge[d] him. When
[Liddell] refused to follow orders, he contacted the Sgt.[, who]
had to leave his assignment [and] come to the library to order
Liddell to leave for the [third] time." Nolley ultimately
concluded:
Regardless of the schedule (which he was not
on) when an inmate is given an order or told
to do something by staff they must follow
orders. There are reasons for charges [and]
the staff does not have to explain them to
inmates. It could be a security or safety
issue.
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After considering the evidence, Nolley found Liddell guilty
of both charges. On the .256 charge, Liddell was sanctioned to
ten days' detention, ninety days of administrative segregation,
fifteen days' loss of recreation privileges, and review of his
job. He was also sanctioned five days' loss of recreation
privileges on the .402 charge.
Liddell filed an administrative appeal. On June 29, 2015,
Associate Administrator H. Adams upheld the guilty findings but
modified the sanctions. Specifically, Adams suspended sixty of
the ninety days' of administrative segregation on the .256 charge
and the entire penalty imposed on the .402 charge. Adams explained
that leniency was granted because this constituted Liddell's first
disciplinary infraction, but cautioned him to follow the rules of
the facility.
In this appeal, Liddell argues that Bradley never gave him a
direct order to leave the law library, and that he immediately
complied when Sgt. Lewandowski ordered him to do so. He also
contends that his presence in the law library was not prohibited
at the time and that the charges essentially constitute ex post
facto violations. Finally, he maintains that his due process and
confrontation rights were violated. We do not find these arguments
persuasive.
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Our role in reviewing an agency decision is limited. In re
Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway State
Prison, 81 N.J. 571, 579 (1980)). Our function is to determine
whether the administrative action was arbitrary, capricious or
unreasonable, or not supported by substantial credible evidence
in the record as a whole. Ramirez v. Dep't of Corr., 382 N.J.
Super. 18, 23 (App. Div. 2005) (citations omitted). "The burden
of demonstrating that the agency's action was arbitrary,
capricious or unreasonable rests upon the [party] challenging the
administrative action." In re Arenas, 385 N.J. Super. 440, 443-
44 (App. Div.), certif. denied, 188 N.J. 219 (2006).
Prison disciplinary hearings are not part of a criminal
prosecution, and the full spectrum of rights due to a criminal
defendant does not apply. See Avant v. Clifford, 67 N.J. 496, 522
(1975). Nonetheless, prisoners are entitled to certain limited
due process protections. Ibid. These protections include written
notice of the charges at least twenty-four hours prior to the
hearing, an impartial tribunal that 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 v. Pinchak, 139 N.J.
188, 193-96 (1995).
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"A finding of guilt at a disciplinary hearing shall be based
upon substantial evidence that the inmate has committed a
prohibited act." N.J.A.C. 10A:4-9.15(a). Substantial evidence
means "such evidence as a reasonable mind might accept as adequate
to support a conclusion." In re Pub. Serv. Elec. & Gas Co., 35
N.J. 358, 376 (1961).
Guided by these standards, we find no merit in Liddell's
argument that he was denied the minimal due process protections
required in prison disciplinary proceedings. During the hearing,
Liddell was allowed to make statements on his own behalf. He was
granted the opportunity to obtain the statements of witnesses on
his behalf and availed himself of it. He also was afforded the
right to confront and cross-examine Bradley, as he requested. No
other process was due. See Jones v. Dep't of Corr., 359 N.J.
Super. 70, 75 (App. Div. 2003) (reiterating that inmates in prison
disciplinary hearings are entitled to due process rights of
confrontation and cross-examination, and litigation rights to
witness access).
We have no question that the evidence was sufficient to
support the finding of guilt. The hearing officer found "[t]here
were no issues of credibility of the staff." Bradley answered all
questions posed to him by Liddell. In doing so, Bradley stated:
Liddell was not on the library schedule; Liddell was in an
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unauthorized area at the time; and he looked at Liddell "eye to
eye" and twice told him to leave before reporting Liddell's non-
compliance to Sgt. Lewandowski. Moreover, one of Liddell's own
witnesses, Zarchy, corroborated Bradley's account that he informed
Liddell he was not on the library schedule and he directed Liddell
to leave and return to his unit.
Even accepting Liddell's version that he believed he was
allowed in the law library at the time, he was told not once but
twice by Bradley that such was not the case. It was only after
repeated notice was given, and Liddell remained in the library
despite such notice, that the disciplinary charges issued.
Moreover, Liddell's belief that he was permitted to use the law
library that day is irrelevant. Stated plainly, he was not free
to simply disregard the order to leave. It is well-established
that the DOC has "broad discretionary powers" to promulgate
regulations aimed at maintaining security and order inside
correctional facilities. Jenkins v. Fauver, 108 N.J. 239, 252
(1987). Furthermore, as we have previously noted, "[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).
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The remainder of Liddell's arguments lack sufficient merit
to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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