NOT FOR PUBLICATION WITHOUT THE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-0909-18T3
WARREN GROOMES,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
_____________________________
Submitted October 2, 2019 – Decided October 16, 2019
Before Judges Hoffman and Firko.
On appeal from the New Jersey Department of
Corrections.
Warren Groomes, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa H. Raksa, Assistant Attorney
General, of counsel; Nicholas A. Sullivan, Deputy
Attorney General, on the brief).
PER CURIAM
Warren Groomes, an inmate in the State's correctional system, appeals
from a final determination of the New Jersey Department of Corrections
(Department), which upheld a hearing officer's decision finding him guilty of
committing prohibited act *.005, threatening a corrections officer with bodily
harm, in violation of N.J.A.C. 10A:4-4.1(a).1 We affirm.
On September 17, 2018, while confined at Bayside State Prison, Groomes
attempted to submit a business remit at the prison cottage. The on-duty senior
corrections officer, P. Malmgren, reported that Groomes became angry and,
when told to "wait a minute" and to "calm down[,]" he responded by telling
Malmgren, "You better take this remit or you are gonna get fucked up." The
Department charged Groomes with prohibited act *.005, threatening another
with bodily harm, in violation of N.J.A.C. 10A:4-4.1(a).
At his initial disciplinary hearing on September 19, 2018, before Hearing
Officer DiBenedetto, Groomes pled not guilty to the charge, arguing that
because he is deaf, he could not understand what Malmgren said to him at the
time. The hearing was adjourned when Groomes was granted counsel substitute.
1
"Prohibited acts preceded by an asterisk (*) are considered the most serious
and result in the most severe sanctions." N.J.A.C. 10A:4-4.1(a).
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2
The hearing recommenced on September 21, 2018, in front of a different
Hearing Officer, Ralph, who found Groomes guilty of committing prohibited act
*.005. The hearing officer noted, "Reports indicate that a threat was clearly
made towards the officer. This behavior will not be tolerated. The decision of
the Hearing Officer was based upon substantial evidence. No leniency will be
afforded to you."
The hearing officer imposed the following sanctions: ninety-one days of
administrative segregation, the loss of sixty days of computation credits, and the
loss of fifteen days of recreational privileges.
On September 21, 2018, Groomes filed an administrative appeal. On
September 26, 2018, A. Lewis, the Assistant Superintendent of New Jersey State
Prison (NJSP), issued a final decision, upholding the hearing officer's decision
and sanctions imposed. Groomes's appeal to this court followed.
On appeal, Groomes argues that his right to due process was violated
because: (1) he was denied the right to testify on his own behalf and to call
witnesses; (2) there was a lack of substantial evidence to support the disciplinary
decision; (3) Hearing Officer Ralph assumed responsibility for the matter when
Hearing Officer DiBenedetto was unavailable; and (4) his counsel substitute
A-0909-18T3
3
provided ineffective assistance because he failed to advise Groomes of his right
to request a polygraph examination.
The standard of review that applies in this appeal is well-established. "In
light of the executive function of administrative agencies, judicial capacity to
review administrative actions is severely limited." George Harms Constr. Co.
v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994) (citing Gloucester Cty. Welfare Bd. v.
N.J. Civil Serv. Comm'n., 93 N.J. 384, 390 (1983)).
When reviewing a final decision of the Department in a prisoner
disciplinary proceeding, we consider whether there is substantial evidence to
support the agency's finding that the inmate has committed the prohibited act
and whether, in making its decision, the Department complied with the
regulations adopted to afford inmates procedural due process. McDonald v.
Pinchak, 139 N.J. 188, 194-95 (1995); Jacobs v. Stephens, 139 N.J. 212, 220-22
(1995).
Here, there is substantial evidence to support the Department's
determination that Groomes committed prohibited act *.005. Documentation
signed by Groomes's counsel substitute indicates that no witnesses were named
for Groomes's defense and he waived the opportunity to confront and cross-
examine adverse witnesses.
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4
Groomes also argues there was a lack of substantial evidence to support
the disciplinary action but the signed adjudication documentation lists six items
of evidence considered in rendering the decision. Moreover, the Assistant
Superintendent's final decision indicates that she considered the reports before
upholding the hearing officer's decision. The Department therefore followed the
procedural requirements for disciplinary sanctions to be imposed. See Ramirez
v. Dep't of Corr., 382 N.J. Super. 18, 26-27 (App. Div. 2005).
Groomes further argues his right to due process was violated because
Hearing Officer Ralph assumed responsibility for the matter when Hearing
Officer DiBenedetto was not available, but allegedly failed to begin the
proceedings anew. In support of this argument, Groomes relies upon Ratti v.
Dep't of Corr., 391 N.J. Super. 45 (App. Div. 2007). In Ratti, we held "when
the evidentiary phase of a hearing has begun but is adjourned for any reason,
and the original hearing officer is unavailable on the date the hearing resumes,
the evidentiary phase of the hearing must begin anew before the replacement
hearing officer." Id. at 48. Groomes's reliance upon Ratti is misplaced.
In this case, the record shows the disciplinary hearing began on September
19, 2018, but the hearing was adjourned because Groomes pled not guilty to the
charges and was assigned counsel substitute. Groomes indicated he understood
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5
his rights and consented to the adjournment of the hearing. The evidentiary
portion of the proceeding was heard on the adjourned date.
Groomes further argues that his counsel substitute provided ineffective
assistance when he failed to advise him of his right to request a polygraph. A
prison administrator may grant a request for a polygraph if "there are issues of
credibility regarding serious incidents or allegations which may result in a
disciplinary charge[.]" N.J.A.C. 10A:3-7.1(a)(1). An inmate does not have a
right to a polygraph in a disciplinary proceeding, but the inmate's request for a
polygraph "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.
Here, the record does not show any inconsistencies in the testimony or
serious questions of credibility in the matter that could not be resolved in the
hearing process. In addition, Groomes waived the opportunity to cross-examine
Malmgren's credibility by failing to confront him or call defense witnesses.
Absent any evidence to support Groomes's claims, it is highly unlikely
that a polygraph request would have been granted. Therefore, the absence of a
polygraph was inconsequential and not ineffective assistance of counsel
substitute.
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Affirmed.
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7