Opinion
DOCKET NO. A-1062-10T2
11-21-2011
ROBERT BOWMAN, Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent.
Robert Bowman, appellant pro se. Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Emily A. Samuels, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves and Koblitz.
On appeal from the Department of Corrections.
Robert Bowman, appellant pro se.
Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Emily A. Samuels, Deputy Attorney General, on the brief). PER CURIAM
Appellant Robert Bowman (Bowman) appeals from a September 13, 2010 final administrative decision of the Department of Corrections (DOC) affirming a disciplinary hearing officer's determination that Bowman violated N.J.A.C. 10A:4-4.1 *.005 by threatening another inmate with bodily harm. Bowman argues that the decision should be reversed because he was not served with the charge within forty-eight hours, as required by DOC regulations, and because there was insufficient evidence to support a finding of guilt. After considering these arguments in light of the record and the applicable law, we affirm.
According to a report filed by Senior Corrections Officer Brown, on September 5, 2010, at approximately 8:40 p.m., Bowman approached him and stated: "I need to get out of my cell with my bunkie [Mercedes] because voices in my head are telling me to kill him." As a result, Bowman was charged with the disciplinary infraction and placed in prehearing detention. Because he had a history of "prior suicide attempts or threats," Bowman was also placed on constant watch. Mercedes was offered protective custody, but he refused.
Sergeant Ennals investigated the charge and noted in a disciplinary report that Bowman requested the assistance of counsel substitute. Ennals referred the matter to courtline for a hearing and gave Bowman a copy of the report, with a description of the alleged infraction, on September 8, 2010, at 9:25 a.m. Bowman did not request that a statement be taken from any witness.
The initial hearing date was adjourned to September 10, 2010, so that Bowman could undergo a psychological evaluation. The evaluation was conducted by Amy Schullery, Psy.D., (Schullery) on September 9, 2010, to ascertain Bowman's "mental status, level of responsibility at the time of the charge, competency to participate in a courtline hearing, and likelihood of decompensation if place[d] in Detention/Ad[ministrative] Seg[regation]."
After interviewing Bowman, Schullery concluded that Bowman "suffer[ed] from a mental illness at the time of the alleged infraction," but that the "signs/symptoms of [Bowman]'s mental illness" did not "contribute to [Bowman]'s behavior manifesting itself in the alleged infraction." In addition, Schullery found that Bowman was "responsible for his[] actions at the time of the alleged infraction," and that at the time of the interview, Bowman was "mentally competent to defend him[]self and understand the proceeding at a courtline hearing." Schullery also stated that Bowman "should have the assistance of a paralegal."
On September 10, 2010, Bowman refused to appear at his disciplinary hearing, but he was represented by counsel substitute. The evidence considered by the hearing officer consisted of the correction officers' reports and the psychological evaluation. At the conclusion of the hearing, Bowman was found guilty of threatening Mercedes with bodily harm, and the hearing officer imposed the following sanctions: 30 days loss of recreational privileges and 180 days loss of commutation time.
In his administrative appeal, Bowman argued that the sanctions imposed were "wanton, disproportioned, in excess, and in violation of due process." Bowman also argued that the disciplinary charge should be dismissed because the incident occurred on September 5, 2010, and he was served with the disciplinary report on September 8, 2010.
Bowman's administrative appeal was denied by Amadu Jalloh, Associate Administrator for South Woods State Prison, on September 13, 2010, with the following explanation:
There was compliance with NJAC 10A on inmate discipline which provides procedural safeguards. The disciplinary charge was not served within 48 hours due to the constant watch placement. The CF v. Terhune policy [D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J. 1999)] clearly states that an inmate has to be in full mental capacity to understand his wrongdoing before the charge is served on him. This requirement was met by the courtline disciplinary supervisor. Therefore, there is no violation noted. [Bowman's] actions violate the safety and security of the institution by threatening a fellow inmate in a secure facility. This type of behavior will not be tolerated at this institution and warrants no leniency. The sanction is proportionate to the offense.
On January 31, 2011, Bowman was paroled from prison. He filed this appeal on April 16, 2011.
A finding of guilt at a disciplinary hearing must be based on "substantial evidence that the inmate has committed a prohibited act." N.J.A.C. 10A:4-9.15(a); see also Avant v. Clifford, 67 N.J. 496, 530 (1975) ("As to the level of evidence required, disciplinary actions are not taken [unless] the inmate's involvement is supported by substantial evidence . . . ."). Substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (quoting In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956)); Mead Johnson & Co. v. Borough of S. Plainfield, 95 N.J. Super. 455, 466 (App. Div. 1967).
Moreover, prison inmates are not entitled to "the full panoply of rights" afforded defendants in criminal proceedings. Avant, supra, 67 N.J. at 522 (citing Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484, 494 (1972)). "The due-process rights of convicted persons serving time behind bars are not the same as those for persons merely charged with a crime." McDonald v. Pinchak, 139 N.J. 188, 194 (1995). As our Supreme Court has stated:
It must be remembered that prisons and correctional institutions are not quiet monasteries. Their security and order are peculiarly dependent upon a system of swift,
stern, unmistakable and yet fair disciplinary justice. That measure of
control is as important to protecting the right to safety of the peaceful inmate population as to that of the correctional staff inside and the public outside.
[Avant, supra, 67 N.J. at 561 (footnote omitted).]
The DOC is required to serve a disciplinary report upon an inmate "within 48 hours after the violation unless there are exceptional circumstances." N.J.A.C. 10A:4-9.2. However, even when exceptional circumstances are not present, the failure to adhere to regulatory time limits does not automatically mandate the dismissal of a disciplinary charge. N.J.A.C. 10A:4-9.9(a). The decision to waive a time limit rests in the discretion of the hearing officer, who must consider the following factors: (1) the length of the delay; (2) the reason for the delay; (3) the prejudice to the inmate in preparing a defense; and (4) the seriousness of the alleged infraction. N.J.A.C. 10A:4-9.9(a).
In this case, service of the disciplinary charge was delayed for approximately thirteen hours while Bowman was on constant watch in prehearing detention; the infraction involved a serious threat of bodily harm or death; and Bowman has not demonstrated that he was prejudiced by the delay. Under these circumstances, the failure to serve Bowman within forty-eight hours did not warrant dismissal of the disciplinary charge. See, e.g., Jacobs v. Stephens, 139 N.J. 212, 219 (1995) (finding the violation of the rule requiring an inmate to have twenty-four hours to prepare for a disciplinary hearing was harmless).
Bowman also argues that the evidence presented to the hearing officer was insufficient to support a finding of guilt. We are satisfied, however, that Bowman's statement to Corrections Officer Brown could reasonably have been understood as a threat to physically harm Mercedes. See Jacobs, supra, 139 N.J. at 222 ("The determination of whether a remark constitutes a threat [under N.J.A.C. 10A:4-4.1(a) *005] is made on the basis of an objective analysis of whether the remark conveys a basis for fear.").
The scope of our review is narrow. We must uphold the DOC's decision, even if we would have reached a different result, so long as there is sufficient credible evidence in the record to support the decision. In re Taylor, 158 N.J. 644, 656 (1999); Johnson v. N.J. Dep't of Corr., 375 N.J. Super. 347, 352 (App. Div. 2005) ("We cannot substitute our judgment for that of the agency where its findings are supported by substantial credible evidence in the record."). We will reverse an agency's decision only if it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); accord Williams v. Dep't of Corr., 330 N.J. Super. 197, 203-04 (App. Div. 2000). A presumption of reasonableness attaches to an administrative agency's action, and the burden of proving otherwise falls on those challenging the action. Smith v. Ricci, 89 N.J. 514, 525 (1982).
With these principles in mind, we conclude Bowman's procedural due process rights were not violated and there was sufficient credible evidence to support the DOC's final decision. Consequently, Bowman has failed to establish that the decision was arbitrary, capricious, or unreasonable. Although we recognize the prosecution of this matter could discourage mentally ill inmates from disclosing potentially uncontrollable violent urges, we are constrained to affirm.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION