                                NOT FOR PUBLICATION WITHOUT THE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-0291-18T1

RAHEEM A. PAMPLIN,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
____________________________

                   Submitted November 4, 2019 – Decided February 3, 2020

                   Before Judges Ostrer and Susswein.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Raheem Pamplin, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Melissa H. Raksa, Assistant Attorney
                   General, of counsel; Beonica McClanahan, Deputy
                   Attorney General, on the brief).

PER CURIAM
      In this Department of Corrections disciplinary matter, inmate Raheem

Pamplin appeals from the finding that he twice possessed contraband drugs, an

asterisk offense. See N.J.A.C. 10A:4-5.1(o)(1) *.203 (prohibiting "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" );

N.J.A.C. 10A:4-4.1 (stating that "[p]rohibited acts preceded by an asterisk (*)

are considered the most serious and result in the most severe sanctions"). We

reject Pamplin's contentions that the agency violated his procedural rights and

acted arbitrarily and capriciously, and affirm the Department's findings.

      According to the agency's evidence presented at Pamplin's hearing, Senior

Corrections Officer (SCO) R. Reyes observed Pamplin place something inside

his crotch area while he was in the administrative segregation kitchen. Reyes

notified his supervisor, Sergeant Comitini. Pamplin was then ushered into a

room where SCO A. Pozo conducted a strip search. While doing so, Pamplin

handed Pozo "one masking tape filled with [a] green leafy substance." A

subsequent field test confirmed the substance was marijuana.

      Thereafter, SCO N. Barton searched Pamplin's cell and found paper-

wrapped pills hidden in a box of sugar.          A quality assurance specialist

determined, based upon the pills' shapes and markings, that one was Benadryl,


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                                        2
and the other was Clonidine. According to Pamplin's electronic medical record,

he had never had an "active order" for either medicine while incarcerated. Based

on these findings, Pamplin was ordered to be transferred to another prison.

Officer Barton conducted an inventory of Pamplin's living quarters, and noted

that no other contraband was found.

      The hearing officer considered the written reports of officers Pozo and

Barton.   In response to Pamplin's request, the hearing officer asked the

investigating sergeant to produce all video footage of Pamplin entering the strip

search room. But, the sergeant reported that no video was available. Pamplin

posed written questions to Reyes, Pozo and Comitini. In addition to confirming

their previous reports, Reyes stated he was not present for Pozo's search, but

Comitini said he was. There was some discrepancy in the responses regarding

who actually escorted Pamplin to the strip search area.       When asked who

escorted Pamplin to be strip searched, Reyes said he "wasn't there for that."

Comitini answered the same question, stating, "Reyes brought him over from

[the] kitchen."




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                                       3
      Pamplin denied possessing the marijuana. According to the adjudication

report, he admitted that he possessed a Benadryl pill because he was allergic to

seafood, and he contended that he had "a Rx for neurotin [sic]." 1

      The hearing officer found Pamplin guilty of the two *.203 violations and

imposed concurrent terms of 180 days of administrative segregation, and

consecutive terms of 180 days loss of commutation time. The hearing officer

explained that Pamplin refused to take responsibility for his actions and failed

to consider the "safety/security of others."

      In his administrative appeal to the prison administrator, Pamplin

contended that video footage, if provided, would have shown that Pozo never

entered the strip search area, and Comitini and Reyes contradicted each other.

The administrator upheld the hearing officer's decision, stating it was based on

substantial evidence and the sanction was proportionate in view of Pamplin's

prior disciplinary history.

      On appeal, Pamplin presents the following arguments for our

consideration:

            POINT 1. RAHEEM PAMPLIN WAS DENIED
            PROCEDURAL DUE PROCESS WHEN HEARING


1
 We cannot explain the discrepancy between the reference to neurontin and the
Clonidine that the quality assurance specialist identified.
                                                                        A-0291-18T1
                                        4
            OFFICER GONZALEZ REPLACED THE ORIGINAL
            HEARING OFFICER WITHOUT EXPLANATION.

            POINT 2. RAHEEM PAMPLIN WAS DENIED
            PROCEDURAL DUE PROCESS WHEN COUNSEL
            SUBSTITUTE TOTH REPLACED COUNSEL
            SUBSTITUTE    NYAHUMA       WITHOUT
            EXPLANATION.

            POINT 3. RAHEEM PAMPLIN WAS DENIED
            PROCEDURAL DUE PROCESS WHEN HEARING
            OFFICER GONZALEZ CONSIDERED ILLEGALLY
            OBTAINED INFORMATION IN DETERMINING
            GUILT.

            POINT 4.    RAHEEM PAMPLIN RECEIVED
            INEFFECTIVE ASSISTANCE OF COUNSEL
            SUBSTITUTE DUE TO HIS FAILURE TO ADVISE
            INMATE PAMPLIN OF HIS RIGHT TO REQUEST A
            POLYGRAPH      EXAMINATION        AFTER
            NUMEROUS INCONSISTENCIES MANIFESTED
            DURING THE HEARING.

            POINT 5. THE ADMINISTRATOR'S FAILURE TO
            ADDRESS THE MERITS OF MR. PAMPLIN'S
            APPEAL RENDERS THE DECISION ARBITRARY
            AND CAPRICIOUS.

      We are obliged to carefully scrutinize the agency's decision, mindful of

its important mission to maintain prison safety and security, which is threatened

by unauthorized drug use. Blanchard v. N.J. Dep't of Corr., ___ N.J. Super. ___,

___ (App. Div. 2019).      We will disturb the agency's decision only if we

determine it is "arbitrary, capricious or unreasonable," or is unsupported "by


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                                       5
substantial credible evidence in the record as a whole." Henry v. Rahway State

Prison, 81 N.J. 571, 579-80 (1980).

      We are unpersuaded that the replacement of the original hearing officer

violated Pamplin's due process rights. One hearing officer presided over an

initial hearing on May 30, 2018, and a second hearing officer, the decision -

maker, presided over hearings on June 1, 4, 5 and 7, 2018. "[I]t is imperative

that a single finder of fact receive all the evidence and make determinations

based on all of the proofs." Ratti v. Dep't of Corr., 391 N.J. Super. 45, 47 (App.

Div. 2007). However, the record indicates that the hearing officer did not

receive or consider any substantive evidence or testimony at the first hearing.

Rather, the hearing officer postponed the proceedings to allow the receipt of

"additional information." Simply put, we are not presented with a situation

where "one fact-finder has heard some of the evidence on the focal issue and

another fact-finder has heard the remainder of the evidence." Ibid. That would

be unacceptable. Ibid. But that is not what happened here.

      Nor are we persuaded that Pamplin was denied his due process rights when

a new counsel substitute represented him at the final day of hearings, replacing

the person who represented Pamplin on all prior occasions. The regulations

require the appointment of a counsel substitute when an inmate is charged with


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                                        6
an asterisk offense. N.J.A.C. 10A:4-9.12(a). Pamplin cites no authority – and

we are aware of none – for the proposition that any substitution would violate

due process.

      Pamplin also contends that his replacement counsel substitute was

ineffective, by failing to request a polygraph on Pamplin's behalf. However, an

inmate is not entitled to "formal retained or assigned counsel," Avant v. Clifford,

67 N.J. 496, 537 (1975), let alone the effective assistance of such counsel, see

Strickland v. Washington, 466 U.S. 668 (1984) (describing standard for

establishing ineffective assistance of counsel guaranteed by the Sixth

Amendment). Rather, an inmate is entitled a counsel substitute. Ibid. Although

that person must be trained as a paralegal, see N.J.A.C. 10A:6-2.13, -2.14, a

counsel substitute cannot be held to the standards of knowledge or diligence of

an attorney.

      Therefore, it is reasonable to hold that counsel substitutes must meet a

minimal standard of diligence, loyalty and knowledge based on the training they

receive. See Sheika v. N.J. Dep't of Corr., 395 N.J. Super. 266, 276 (App. Div.

2007) (referring to the entitlement to the "effective assistance of counsel

substitute"). If they do not meet that minimal standard, then the right to a

counsel substitute is an empty one. Nonetheless, a disciplinary decision should


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                                        7
be disturbed only if a counsel substitute's failure to provide a minimal level of

competence causes the inmate prejudice. Cf. Strickland, 466 U.S. 668 (requiring

a showing of prejudice as one of two essential elements of an ineffective

assistance of counsel claim).

      Without charting the precise boundaries of such a minimal standard of

competence, we are satisfied that Pamplin was not deprived of his rights. A

minimally competent counsel substitute was not compelled to request a

polygraph in this case. An inmate's right to a polygraph is not absolute; a prison

administrator may grant a request for one 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). "[T]he 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 v.

Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005).

      "Impairment may be evidenced by inconsistencies in the [corrections

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." Id. at 24. On the other hand, a polygraph

would not be required to assure fundamental fairness "when there is sufficient


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                                        8
corroborating evidence presented to negate any serious question of credibility."

Ibid.

        Although Pamplin has identified minor inconsistencies in the responses of

the corrections officers to his written questions, they do not contradict Reyes's

statement that he saw Pamplin shove something into his crotch area; and Pozo's

statement that Pamplin surrendered the masking tape filled with the vegetation

during the strip search. Furthermore, the production of that item corroborates

the officers' key statements.

        Pamplin's remaining points warrant only brief comment. There was no

inconsistency in Officer Barton's reports. He found the pills in his first reported

search, and then found nothing more while inventorying Pamplin's possessions.

Also, the hearing officer did not rely on illegally obtained information in the

form of the nurse's statement that he was not prescribed the drugs seized from

his footlocker. "Medical . . . information may be made available to Department

of Corrections staff to whom the information is relevant in connection with the

staff person's need to make a decision concerning the inmate such as . . .

discipline." N.J.A.C. 10A:22-2.6(b)(2).

        Nor did the administrator act arbitrarily or capriciously in upholding the

hearing officer's decision on the basis of substantial evidence. The administrator


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                                         9
was not required to say more. "Substantial evidence has been defined alternately

as 'such evidence as a reasonable mind might accept as adequate to support a

conclusion,' and 'evidence furnishing a reasonable basis for the agency's

action.'" Blanchard, ___ N.J. Super. at ___ (quoting Figueroa v. N.J. Dep't of

Corr., 414 N.J. Super. 186, 192 (App. Div. 2010)); see also N.J.A.C. 10A:4-

9.15(a) (stating that "substantial evidence" must be the basis for finding guilt at

a disciplinary hearing).    Substantial evidence in the form of the officers'

statements and the contraband itself supported the hearing officer's finding,

which in turn supported the administrator's decision.

      Affirmed.




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