                                NOT FOR PUBLICATION WITHOUT THE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-2682-18T2

LIONELL G. MILLER,

          Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.
___________________________

                   Submitted January 13, 2020 – Decided March 20, 2020

                   Before Judges Sabatino and Sumners.

                   On appeal from the New Jersey Department of
                   Corrections.

                   Lionell G. Miller, appellant pro se.

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Sookie Bae, Assistant Attorney General, of
                   counsel; Nicholas A. Sullivan, Deputy Attorney
                   General, on the brief).

PER CURIAM
      Lionell G. Miller, an inmate under the care and custody of the New Jersey

Department of Corrections (DOC), appeals from the agency's final

determination upholding a finding of guilt and the sanctions imposed against

him for committing prohibited act *.002, assaulting any person, N.J.A.C. 10A:4-

4.1(a)(1)(ii).

      On appeal, Miller argues:

             I.  THE DISCIPLINARY HEARING OFFICER
             FAILED TO CONSIDER MITIGATING FACTORS
             THAT    SUPPORTED   APPELLANT'S  SELF-
             DEFENSE CLAIM AND FAILED TO MAKE
             SPECIFIC FINDINGS IN SUPPORT OF HER
             ULTIMATE DECISION.

             II. APPELLANT WAS DEPRIVED OF HIS RIGHT
             TO DUE PROCESS AS A RESULT OF HIM NOT
             BEING ALLOWED TO PRESENT DOCUMENTARY
             EVIDENCE IN HIS DEFENSE.

             III. THE ADMINISTRATOR'S DENIAL OF
             APPELLANT'S REQUEST FOR A POLYGRAPH
             TEST WAS AN ABUSE OF DISCRETION AND A
             DENIAL OF APPELLANT'S RIGHT TO DUE
             PROCESS OF LAW.

             IV. THE DISCIPLINARY HEARING OFFICER'S
             ADJUDICATION     OF   GUILT   WAS   NOT
             SUPPORTED BY SUBSTANTIAL CREDIBLE
             EVIDENCE. THUS, APPELLANT WAS DEPRIVED
             OF HIS RIGHT TO DUE PROCESS OF LAW.




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                                      2
We reverse and remand because we conclude the agency's decision denying

Miller a polygraph examination was a mistaken application of discretion

undermining the fundamental fairness of the proceeding.

                                         I

      The record from the agency's disciplinary proceedings reveal the

following.   In his disciplinary report, East Jersey State Prison Corrections

Officer G. Saucedo stated, while trying to secure Miller in his cell, he got into a

dispute with Miller, who "meander[ed] and refused . . . orders" after exiting the

showers. Miller then "aggressively and violently" approached Saucedo, leading

to a physical altercation, during which Saucedo deployed oleoresin capsicum

spray ("OC spray" or "mace") on Miller after Saucedo fell to the floor.

According to Saucedo, while he was on the floor, Miller struck him numerous

times with a closed fist before DOC staff arrived to intercede.          Sergeant

Adamson, and officers B. Krueger, E. Llerena, and P. Zegadlo issued reports

stating they observed Miller striking Saucedo while Saucedo was on the floor

and had to use force to remove Miller from Saucedo and subdue Miller by

placing him in handcuffs. Both Miller and Saucedo were taken to the hospital

emergency room for medical evaluations. Miller was charged with prohibited

acts *.002, assaulting any person, *.256, refusing to obey an order of any staff


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member, and *.306, conduct which disrupts or interferes with the security or

orderly running of the correctional facility.

      As one might expect, Miller's recollection of the incident differed

completely from Saucedo's.       In his statement of written defense, Miller

contended he was not exiting the shower but was on the telephone when he was

prematurely ordered by Saucedo to get off and return to his cell. He was using

two free five-minute phone calls allowed by the correctional facility's phone

carrier provider for Christmas holiday calls. According to Miller, as he walked

to his cell, Saucedo got angry over his vocal objections and, without provocation

or justification, maced him in the face. Saucedo then allegedly grabbed and

wrestled Miller to the floor. Miller claims he only got physical with Saucedo to

defend himself.

      In support, Miller submitted three handwritten statements from fellow

inmates disclosing their versions of the incident. 1 Two of them stated they were

in their cells when they heard arguing, pointed their mirrors out of their cells

and saw Saucedo mace Miller without cause. The other stated he saw Miller




1
  The record also contains a fourth statement by an inmate, who stated he "didn't
see what happened."
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                                        4
and Saucedo get into an argument over Miller's use of the telephone and "it

looked like a physical altercation may [b]egin, and it [d]i[d]."

      The initial disciplinary hearing date was postponed because Miller

requested a polygraph examination, video footage of the altercation, and copies

of the shower and phone logs. Prison Administrator Patrick A. Nogan denied

the polygraph request, stating in a memo to Miller that "[a]ny issues of

credibility can be addressed at the time of the hearing with the Disciplinary

Hearing Officer." Miller was later informed there was no video available of the

altercation, and shower and phone records were not available because they are

discarded at the end of each day. 2

      The next hearing date was postponed because Miller requested that

Saucedo answer confrontational questions.

      When the hearing date was eventually conducted, Miller reiterated his

claim he was defending himself from Saucedo's unprovoked assault with mace.

After considering all the evidence, including Saucedo's answers to Miller's

confrontation questions, Miller was found guilty of *.002, assaulting any person,

and he was sanctioned 211 days of administrative segregation, 211 days loss of



2
  The DOC's submission does not explain why these potential evidential items
are discarded or deleted at the end of the day.
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                                        5
commutation time, and thirty days loss of recreational privileges. He was found

not guilty of prohibited acts *.256, refusing to obey an order of any staff

member, and *.306, conduct which disrupts or interferes with the security or

orderly running of the correctional facility. The hearing officer's hand-written

decision is difficult to decipher, but it appears the contentions by DOC staff

were determined to be credible while Miller and his witnesses were not credible

to sustain Miller's self-defense claim.

      Prison Administrator Nogan denied Miller's administrative appeal and

upheld the hearing officer's finding of guilt and sanctions. The administrator

explained there was compliance with inmate discipline regulations, and the

hearing officer's decision was based on substantial evidence without

misinterpreting any facts and there were no extenuating circumstances

outweighing the substantial evidence.

                                          II

      We first address Miller's contention in point III of his merits brief that his

due process rights were violated by Prison Administrator Nogan's denial of his

request to take a polygraph examination. He contends that, in accordance with

Ramirez v. Dep't of Corr., 382 N.J. Super. 18 (App. Div. 2005), the DOC abused

its discretion in not giving him a polygraph examination, which would have


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                                          6
exposed inconsistencies in Saucedo's assertions as to how the altercation

occurred. Specifically, Miller argues Saucedo reported he was falling to the

ground when he deployed his OC spray, but in his confrontation answers he

states he was five feet away from Miller when he used the OC spray. Miller

also maintains the examination was necessary "to strengthen his credibility and

his claim that he was acting in self-defense to protect his person against unlawful

force that he was the victim of."

      N.J.A.C. 10A: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. 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 only has a right to a polygraph

test in certain situations. Ramirez, 382 N.J. Super. at 20; 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. The routine administration of a polygraph "is


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                                        7
clearly not required on every occasion that an inmate denies a disciplinary

charge against him." Id. at 23-24. "[F]undamental fairness will not be [a]ffected

when there is sufficient corroborating evidence presented to negate any serious

question of credibility." Id. at 24. Such "[i]mpairment [of fundamental fairness]

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." Ibid. On the other hand, a polygraph would not be required

to assure fundamental fairness "when there is sufficient corroborating evidence

presented to negate any serious question of credibility." Ibid. We review the

administrator's decision to deny a polygraph examination for abuse of discretion.

Ibid.

        Applying these standards, the record does not support Miller's contention

that he was entitled to a polygraph examination because Saucedo gave

inconsistent statements as to where Saucedo claimed to be when the altercation

with Miller occurred and where he was when he deployed the OC spray on

Miller. Saucedo's report clearly states he deployed his OC spray when he was

being pushed down by Miller, which occurred after Miller was about

"approx[imately five] feet" away and "aggressively and violently charged" him.


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                                        8
In his confrontation answer, Saucedo stated he was within five feet from Miller

when the altercation occurred, not when he used his OC spray on Miller. The

confrontation question fails to indicate what constitutes "the altercation,"

however, it seems logical and apparent Saucedo believed that the altercation

occurred when Miller was about five feet away and allegedly charged him, after

refusing his order to go to his cell.

      On the other hand, there were serious questions of credibility before the

hearing officer. Although four DOC staff members responded to the altercation

between Miller and Saucedo, none of them saw how it started. Miller and two

other inmates claiming to have witnessed the start of the altercation, assert

Saucedo was the aggressor by macing Miller without provocation. Another

inmate witness joined Miller in refuting Saucedo's assertion that Miller was

coming out of the shower area just prior to the altercation; they instead contend

Miller was on the phone when confronted and directed by Saucedo to return to

his cell. Significantly, the DOC reported – without sufficient explanation – there

was no video of the incident available.

      Under these circumstances, there are fundamental fairness concerns. We

conclude it was arbitrary and unreasonable for the DOC to deny Miller's request

for a polygraph examination. There are "serious questions of credibility" not


                                                                          A-2682-18T2
                                          9
dispelled sufficiently to justify the polygraph denial. We accordingly remand

this matter with a direction to the DOC to arrange the requested polygraph

examination. In light of our decision, we do not address Miller's remaining

arguments.

      Following the test results, a new hearing shall be conducted taking into

account the polygraph evidence and any other proofs that may be developed.

We do not intimate in advance, of course, any view of the outcome of these

procedures. In particular, we do not comment on whether the disciplinary

charge may be upheld if, hypothetically, appellant does not fail the polygraph,

or the results are inconsistent.

      Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.




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