CALEB LOVE v. NEW JERSEY DEPARTMENT OF CORRECTIONS (2011)

Appellant Caleb Love appeals from a September 18, 2009, final administrative decision of the Department of Corrections finding him guilty of disciplinary infraction .703, “correspondence or conduct with a visitor” in violation of N.J.A.C. 10A:4-4.1. We affirm.

Love is an inmate at South Woods State Prison and is serving a mandatory maximum term of three years for one count of unlawful possession of handguns.   On September 13, 2009, at 10:30 in the morning, Senior Corrections Officer J. Thompson and Sergeant M. Sheppard were observing Love on camera in the visitor area.   They saw Love take his right hand and reach into his visitor's waistband area, retrieve something, and place it in his mouth.   This occurred during the termination of visits.   The officers confronted Love and escorted him to an area where they conducted a strip search for contraband.   When they asked what kind of drugs he had retrieved, he denied getting anything.   They did not discover any contraband or drugs.   He was escorted to his cell, searched again, and ordered to submit to testing for a prohibited substance.   Love complied, and the test was negative.   His cell was searched without results.   On September 14, 2009, he was hand-delivered disciplinary charge .703;  the charge was written by Thompson.   Investigating Sergeant M. Ewing read Love's rights to him;  Love pled not guilty to the infraction and made no statement to Ewing.

Love's first hearing was scheduled for September 15, 2009, but it was postponed because Love was in a dry cell and because the hearing officer wanted to secure the videotape for the hearing.   Love requested the assistance of counsel and was assigned an inmate paralegal as counsel substitute.

On September 16, 2009, the disciplinary hearing was conducted.   Love testified that he “did nothing wrong[, j]ust playing with my son [and] eating [Skittles].”   Counsel substitute stated that inmates are permitted to hug and kiss at the end of a visit and that no contraband was found.   Love declined witnesses and relied on the videotape.

The hearing officer found Love guilty of the infraction charged.   He noted that, in viewing the videotape, he observed an inappropriate kiss and touching prior to the visit termination.   He found that Love's playing with his son was superficial and that Love reached with his right hand into the waistband area of his visitor, moved his hand back and forth, and then promptly placed his hand to his mouth, appearing to ingest something.   The hearing officer did not see any Skittles.   He also found Love's credibility compromised and the charge substantiated.   The hearing officer explained that the visitor area is a vulnerable area where contraband is known to be introduced during visits, that strict adherence to all visit policies is required, and that Love violated visit policies.

Counsel substitute filed an appeal with the Assistant Superintendent on September 16, 2009.   In that appeal, he raised a number of issues:  (1) insufficient evidence to find Love guilty;  (2) inmates are allowed to hug and kiss at the end of a visit pursuant to prison visitation rules;  (3) a plea of leniency;  and (4) a request that the Assistant Administrator review the videotape.   He urged that a review of the videotape would demonstrate that Love could not reach into his visitor's waistband because it was covered by the visitor's tee shirt, his urine test was clean, no contraband was found on his person, and his cell search was clean.

On September 18, 2009, the Assistant Superintendent found that the evidence supported the finding of guilty and that the charge was appropriate based on Love's conduct;  the sanctions imposed were upheld.

Love raises the following issues on appeal:

POINT I - APART FROM FEDERAL AND STATE CONSTITUTION PROTECTIONS[,] THE DISCIPLINARY HEARING OFFICER IS “DUTY BOUND TO INSURE [SIC] THAT ADMINISTRATION PROCEEDINGS ARE CONDUCTED IN ACCORDANCE WITH COMMON NOTIONS OF FUNDAMENTAL FAIRNESS.[”]

POINT [II] - HEARING OFFICER'S PERCEPTION IS NOT CREDIBLE DUE TO THE FACT THE HEARING OFFICER VIOLATED INMATE[']S RIGHTS BY NOT ADHERING TO THE [N.J.A.C.] 10A:4 AND THE INMATE HANDBOOK.

POINT [III] - THIS IS NOT A ZERO TOLERANCE DRUG/ALCOHOL POLICY AS DEFINED IN [N.J.A.C.] 10A:1-2.2 OR [N.J.S.A.] 30:4-140.1 OR ESTABLISHED IN [N.J.A.C. 10A:4-5.1(c) THROUGH (e) ].

The judicial role in reviewing decisions of administrative agencies is restricted to the following four inquiries:

(1) whether the agency's decision offends the State or Federal Constitution;  (2) whether the agency's action violates express or implied legislative policies;  (3) whether the record contains substantial evidence to support the findings on which the agency based its action;  and (4) 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.

[George Harms Constr.   Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citations omitted).]

Accordingly, “[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable.”  Burris v. Police Dep't, W. Orange, 338 N.J.Super. 493, 496 (App.Div.2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)).   The precise issue is whether the findings of the agency could have been reached on the credible evidence in the record, considering the proofs as a whole.  Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action.   McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App.Div.2002);  Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App.Div.1986), aff'd, 107 N.J. 355 (1987).

Additionally, “[i]t is settled that ‘[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.’ ”  Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J.Super. 52, 56 (App.Div.2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J.Super. 93, 102 (App.Div.1997)).  “Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed.”  Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)).

With respect to Love's first point on appeal, he contends that he was not given a fair hearing because the officer found his credibility compromised despite the fact that the corrections officers never found any evidence of contraband.

Although prison disciplinary hearings are not part of a criminal prosecution, and prisoners are thus not entitled to the full spectrum of rights due a criminal defendant, prisoners are entitled to certain limited protections.   Avant v. Clifford, 67 N.J. 496, 522 (1975).   These protections include written notice of the charges at least twenty-four hours prior to the hearing, an impartial tribunal which may consist of personnel from the central office staff of the prison, a limited right to call witnesses and present documentary evidence, a limited right to confront and cross-examine adverse witnesses, the assistance of counsel substitute, and a right to a written statement of the 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);  Jacobs v. Stephens, 139 N.J. 212, 217-18 (1995).

Here the prison officials complied with all of the requirements of Avant.   Love had twenty-four hours notice of the charge;  the hearing was conducted by an impartial tribunal;  Love and his counsel substitute were provided the opportunity to make a statement on Love's behalf, which they both exercised;  Love did not request any statements from witnesses;  and he was offered and declined the opportunity to confront and cross-examine adverse witnesses.   Love and his counsel substitute were shown the adjudication report, and counsel substitute's signature on the report acknowledged that the information contained in the report accurately reflected what took place at the hearing.

We may only set aside an agency's decision when it is arbitrary or capricious or unsupported by credible evidence in the record.  Henry, supra, 81 N.J. at 579-80.   We can make no such finding here.   Love's arguments focus on the officer's finding that Love's credibility was compromised.   His argument that no contraband was found was not the basis for the determination that his credibility was impaired.   That was based on a review of the videotape, including the absence of any evidence of Skittles to explain Love's placement of his hand to his mouth after rubbing the waistband of his visitor.

In his second point, Love contends that he did not violate N.J.A.C. 10A:18-6 ¹  because all he did was “embrace and kiss briefly.”   That, however, is not what he did.   He does not dispute that the videotape showed him rubbing the waistband of his visitor and then placing his hand to his mouth.   That is not part of a brief embrace and kiss.   Thus, there was substantial evidence supporting Love's conviction of the .703 disciplinary infraction.

Finally, we turn to Love's third point on appeal in which he urges that this offense did not violate a zero-tolerance drug or alcohol policy.   That is clearly so, but it is not relevant.   He urges that as a consequence he should not have been so severely sanctioned but merely removed from the visitor's list.   The extent of the punishment was committed to the discretion of the prison officials, and no abuse of discretion has been established in the record before us.

Affirmed.

FOOTNOTES

FN1. N.J.A.C. 10A:18-6.16(a) provides in part that “[v]isits shall be supervised to help prevent the passage of contraband.”  N.J.A.C. 10A:8-6.16(d) provides that “[h]andshaking, embracing and kissing shall be permitted, within appropriate bounds, at the beginning and end of the visit in order to minimize the opportunity to introduce contraband into the correctional facility.”   The correctional facility's own rules mirrored this latter provision, but also required that embracing and kissing be done “briefly.”.  FN1. N.J.A.C. 10A:18-6.16(a) provides in part that “[v]isits shall be supervised to help prevent the passage of contraband.”  N.J.A.C. 10A:8-6.16(d) provides that “[h]andshaking, embracing and kissing shall be permitted, within appropriate bounds, at the beginning and end of the visit in order to minimize the opportunity to introduce contraband into the correctional facility.”   The correctional facility's own rules mirrored this latter provision, but also required that embracing and kissing be done “briefly.”

PER CURIAM