NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3433-17T4
TRAVIS VILLALOBOS,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ____________________________
Submitted March 18, 2019 – Decided March 29, 2019
Before Judges Sabatino and Sumners.
On appeal from the New Jersey Department of Corrections.
Travis Villalobos, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher Josephson, Deputy Attorney General, on the brief).
PER CURIAM Travis Villalobos, an inmate at South Woods State Prison, appeals
disciplinary sanctions imposed upon him pursuant to N.J.A.C. 10A:4-4.1 for
committing prohibited act *.203 (possession or introduction of any prohibited
substances such as drugs, intoxicants or related paraphernalia not prescribed for
the inmate by the medical or dental staff).1 We remand this matter, for the
reasons that follow.
I.
The disciplinary charges against appellant arose out of a search on January
25, 2018 of the cell that was jointly housing him and another inmate. According
to appellant, he had been assigned to that cell at most only a few hours before
the search.
During the course of the search, a corrections officer discovered, in
appellant's cellmate's unsecured locker, a pouch under a t-shirt. The pouch
contained pills and a powdery substance. Only the pills were tested. The pills
turned out to be non-narcotic prohibited substances for which appellant did not
1 The Department's documentation is inconsistent. Appellant was initially charged with both a *.203 infraction and a violation of *.305 (giving a false statement to a staff member). However, the February 14, 2018 hearing officer's adjudication of the charges found appellant guilty only of a *.203 infraction. Inexplicably, the disposition of appellant's administrative appeal refers to both provisions. In any event, the Department's brief on appeal states that appellant solely violated *.203. A-3433-17T4 2 have a prescription. Appellant and his cellmate both submitted to urine screens
after the discovery of the items. Both screens tested negative.
Appellant contended that the items did not belong to him, that he had only
recently moved to the cell, and the items were found in his cellmate's locker and
not his own. He requested a polygraph examination, which the institution
declined as unwarranted. The investigation indicated that appellant had access
to the unlocked locker of his cellmate where the seized items were located.
After several postponements, the disciplinary hearing was conducted on
February 14, 2018. Appellant requested and was provided with the assis tance
of a counsel substitute in accordance with N.J.A.C. 10A:4-9.12. Appellant
provided a statement asserting that he had moved into the cell only a few hours
or less before the search, that he was never alone in the cell, and that the items
were not his and were found in his cellmate's locker. The counsel substitute
noted that a criminal complaint issued after the search stated that the cellmate,
not appellant, was the possessor of the substance. According to the Department's
investigator, this misattribution was a clerical error. 2
2 According to appellant, the criminal charges against him were dismissed, but his cellmate was charged in the matter. The Department's brief acknowledges this representation and does not refute it. A-3433-17T4 3 Appellant was offered the opportunity to call witnesses at the disciplinary
hearing on his behalf, which he declined. He also declined the opportunity to
confront and cross-examine adverse witnesses.
The hearing officer found appellant guilty of the *.203 prohibited act. The
officer imposed sanctions of 180 days administrative segregation, ninety days
loss of commutation time, ten days loss of recreation privileges, 365 days of
urine monitoring, permanent loss of contact visits, and the confiscation of the
seized items. Appellant was also referred for a mental health evaluation.
Appellant administratively appealed the hearing officer's decision. That
same day, an Assistant Superintendent of the Department upheld the decision.
II.
On appeal, appellant contends that he was deprived of due process because
there was not substantial credible evidence to support his guilt and his pre-
hearing polygraph request should have been granted.
It is well established that our courts generally will not disturb the
Department's administrative decision to impose disciplinary sanctions upon an
inmate, unless the inmate demonstrates that the decision is arbitrary, capricious
or unreasonable, or that the record lacks substantial, credible evidence to support
that decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
A-3433-17T4 4 Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010).
Moreover, prisoners in disciplinary matters are afforded only limited procedural
protections. McDonald v. Pinchak, 139 N.J. 188, 193-99 (1995)
We focus our discussion on the denial of the requested polygraph.
N.J.A.C. 10:3-7.1 allows the prison administrator to request a polygraph in
certain situations, including circumstances where an inmate charged with
disciplinary infractions has sought such a polygraph. The regulation states:
(a) A polygraph examination may be requested by the Administrator or designee:
1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or
2. As part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.
(b) The polygraph shall not be used in place of a thorough investigation, but shall be used to assist an investigation when appropriate.
(c) Agreement by the inmate to take a polygraph examination shall not be a pre-condition for ordering a reinvestigation. An inmate's request for a polygraph examination shall not be sufficient cause for granting the request.
[N.J.A.C. 1-A:3-7.1].
A-3433-17T4 5 While "[a]n inmate's request for a polygraph examination shall not be
sufficient cause for granting the request," N.J.A.C. 10A:3-7.1(c), an inmate has
a right to a polygraph test in certain situations. Ramirez v. Dep't of Corr., 382
N.J. Super. 18, 20 (App. Div. 2005); but see Johnson v. N.J. Dep't of Corr., 298
N.J. Super. 79, 83 (App. Div. 1997) (concluding the appellant did not "have the
right to a polygraph test," citing N.J.A.C. 10A:3-7.1(c)). "[A]n inmate's right to
a polygraph is conditional and the request 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, 382
N.J. Super. at 20.
In Ramirez, the inmate appealed disciplinary sanctions based on
attempting to commit an assault on a senior corrections officer. Id. at 20-21.
Ramirez denied these charges and contended the officer assaulted him.
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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-3433-17T4
TRAVIS VILLALOBOS,
Appellant,
v.
NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ____________________________
Submitted March 18, 2019 – Decided March 29, 2019
Before Judges Sabatino and Sumners.
On appeal from the New Jersey Department of Corrections.
Travis Villalobos, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Christopher Josephson, Deputy Attorney General, on the brief).
PER CURIAM Travis Villalobos, an inmate at South Woods State Prison, appeals
disciplinary sanctions imposed upon him pursuant to N.J.A.C. 10A:4-4.1 for
committing prohibited act *.203 (possession or introduction of any prohibited
substances such as drugs, intoxicants or related paraphernalia not prescribed for
the inmate by the medical or dental staff).1 We remand this matter, for the
reasons that follow.
I.
The disciplinary charges against appellant arose out of a search on January
25, 2018 of the cell that was jointly housing him and another inmate. According
to appellant, he had been assigned to that cell at most only a few hours before
the search.
During the course of the search, a corrections officer discovered, in
appellant's cellmate's unsecured locker, a pouch under a t-shirt. The pouch
contained pills and a powdery substance. Only the pills were tested. The pills
turned out to be non-narcotic prohibited substances for which appellant did not
1 The Department's documentation is inconsistent. Appellant was initially charged with both a *.203 infraction and a violation of *.305 (giving a false statement to a staff member). However, the February 14, 2018 hearing officer's adjudication of the charges found appellant guilty only of a *.203 infraction. Inexplicably, the disposition of appellant's administrative appeal refers to both provisions. In any event, the Department's brief on appeal states that appellant solely violated *.203. A-3433-17T4 2 have a prescription. Appellant and his cellmate both submitted to urine screens
after the discovery of the items. Both screens tested negative.
Appellant contended that the items did not belong to him, that he had only
recently moved to the cell, and the items were found in his cellmate's locker and
not his own. He requested a polygraph examination, which the institution
declined as unwarranted. The investigation indicated that appellant had access
to the unlocked locker of his cellmate where the seized items were located.
After several postponements, the disciplinary hearing was conducted on
February 14, 2018. Appellant requested and was provided with the assis tance
of a counsel substitute in accordance with N.J.A.C. 10A:4-9.12. Appellant
provided a statement asserting that he had moved into the cell only a few hours
or less before the search, that he was never alone in the cell, and that the items
were not his and were found in his cellmate's locker. The counsel substitute
noted that a criminal complaint issued after the search stated that the cellmate,
not appellant, was the possessor of the substance. According to the Department's
investigator, this misattribution was a clerical error. 2
2 According to appellant, the criminal charges against him were dismissed, but his cellmate was charged in the matter. The Department's brief acknowledges this representation and does not refute it. A-3433-17T4 3 Appellant was offered the opportunity to call witnesses at the disciplinary
hearing on his behalf, which he declined. He also declined the opportunity to
confront and cross-examine adverse witnesses.
The hearing officer found appellant guilty of the *.203 prohibited act. The
officer imposed sanctions of 180 days administrative segregation, ninety days
loss of commutation time, ten days loss of recreation privileges, 365 days of
urine monitoring, permanent loss of contact visits, and the confiscation of the
seized items. Appellant was also referred for a mental health evaluation.
Appellant administratively appealed the hearing officer's decision. That
same day, an Assistant Superintendent of the Department upheld the decision.
II.
On appeal, appellant contends that he was deprived of due process because
there was not substantial credible evidence to support his guilt and his pre-
hearing polygraph request should have been granted.
It is well established that our courts generally will not disturb the
Department's administrative decision to impose disciplinary sanctions upon an
inmate, unless the inmate demonstrates that the decision is arbitrary, capricious
or unreasonable, or that the record lacks substantial, credible evidence to support
that decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980);
A-3433-17T4 4 Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div. 2010).
Moreover, prisoners in disciplinary matters are afforded only limited procedural
protections. McDonald v. Pinchak, 139 N.J. 188, 193-99 (1995)
We focus our discussion on the denial of the requested polygraph.
N.J.A.C. 10:3-7.1 allows the prison administrator to request a polygraph in
certain situations, including circumstances where an inmate charged with
disciplinary infractions has sought such a polygraph. The regulation states:
(a) A polygraph examination may be requested by the Administrator or designee:
1. When there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or
2. As part of a reinvestigation of a disciplinary charge, when the Administrator or designee is presented with new evidence or finds serious issues of credibility.
(b) The polygraph shall not be used in place of a thorough investigation, but shall be used to assist an investigation when appropriate.
(c) Agreement by the inmate to take a polygraph examination shall not be a pre-condition for ordering a reinvestigation. An inmate's request for a polygraph examination shall not be sufficient cause for granting the request.
[N.J.A.C. 1-A:3-7.1].
A-3433-17T4 5 While "[a]n inmate's request for a polygraph examination shall not be
sufficient cause for granting the request," N.J.A.C. 10A:3-7.1(c), an inmate has
a right to a polygraph test in certain situations. Ramirez v. Dep't of Corr., 382
N.J. Super. 18, 20 (App. Div. 2005); but see Johnson v. N.J. Dep't of Corr., 298
N.J. Super. 79, 83 (App. Div. 1997) (concluding the appellant did not "have the
right to a polygraph test," citing N.J.A.C. 10A:3-7.1(c)). "[A]n inmate's right to
a polygraph is conditional and the request 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, 382
N.J. Super. at 20.
In Ramirez, the inmate appealed disciplinary sanctions based on
attempting to commit an assault on a senior corrections officer. Id. at 20-21.
Ramirez denied these charges and contended the officer assaulted him. Id. at
21. In analyzing these issues, we explained in Ramirez that "a prison
administrator's determination not to give a prisoner a polygraph examination is
discretionary and may be reversed only when that determination is 'arbitrary,
capricious or unreasonable.'" Id. at 24. In exercising this discretion, the prison
administrator "must be guided by whether the request for a polygraph if denied
will impair the fundamental fairness of the disciplinary proceeding." Ibid. We
A-3433-17T4 6 noted that such impairment of fairness could be indicated, for instance, by
inconsistencies in the officer'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." Ibid. However,
"fundamental fairness will not be effected when there is sufficient corroborating
evidence presented to negate any serious question of credibility." Ibid.
Applying these standards, we found the Department's denial of a
polygraph in Ramirez did not undermine the fundamental fairness of the
proceeding because there was no inconsistencies in the officer's accusation, no
extrinsic evidence involving credibility was presented, and corroborating
evidence was presented to confirm the officer's credibility. Id. at 26. Even so,
we have held that a denial of an inmate's request for a polygraph was improper
or unfair in other cases. For example, in Engle v. N.J. Department of
Corrections, 270 N.J. Super. 176, 178 (App. Div. 1994), we found that a denial
of a polygraph examination – where the violation was based on information from
a single confidential informant with no corroboration – was an unsustainable
exercise of the administrator's discretion.
Here, the parties agree the contraband was found in appellant's cellmate's
locker. Appellant asserts that he moved into that cell only hours earlier, an
A-3433-17T4 7 assertion the Department's proofs did not refute. There was no corroborating
evidence presented that the contraband was appellant's, or that the appellant
knew of the contraband's existence, beyond the fact that the cellmate's locker
was unsecured and appellant presumably could have had access to it.
The circumstances here do not justify denying a polygraph request, as the
dispute ultimately turns upon the credibility of competing claims regarding
appellant's alleged knowledge and constructive possession of the items . See
State v. Morrison, 188 N.J. 2, 14-15 (2006) (explaining the concepts and
standards for imputing constructive possession); Figueroa, 414 N.J. Super. at
192 (explaining the concept of constructive knowledge in the context of a prison
disciplinary matter).
As we noted in Figueroa:
"[P]ossession . . . signifies a knowing, intentional control of a designated thing, accompanied by a knowledge of its character." State v. Pena, 178 N.J. 297, 305 (2004) (quotations omitted). Thus, an inmate cannot be found guilty of possession of a prohibited drug "unless [there is sufficient proof] that he knew or was aware, at a minimum, that he possessed [the drug]." Ibid.
[414 N.J. Super. at 192 (alterations in original) (second emphasis added)].
A-3433-17T4 8 In light of these considerations and what we deem to be "serious issues of
credibility" and fundamental fairness concerns, we conclude the Department
unreasonably denied appellant's request for a polygraph. We accordingly
remand this matter with a direction to the Department to arrange the requested
polygraph examination(s).
Following the test results, a new hearing shall be conducted to take into
account the polygraph evidence and any other proofs that may be developed.
We do not intimate in advance, of course, any views about the outcome of these
procedures.
Remanded for further proceedings in accordance with this opinion. We
do not retain jurisdiction.
A-3433-17T4 9