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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2219-05T22219-05T2 SAMUEL CANN, Petitioner-Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent-Respondent. __________________________________

Submitted September 11, 2006 - Decided September 25, 2006 Before Judges Seltzer and C.L. Miniman. On appeal from a Final Administrative Decision of the Department of Corrections. Samuel Cann, appellant pro se. Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Lisa A. Puglisi, Deputy Attorney General, on the brief). PER CURIAM Plaintiff-appellant Samuel Cann, an inmate serving a forty-three-year to life sentence for two counts of murder and related charges at New Jersey State Prison in Trenton, returned from the yard on November 8, 2005, at 10:30 a.m. and, in going through the metal detector, set it off three separate times. The inmate was taken for a strip search but failed to follow instructions on the removal of his clothing. When ordered to follow the instructions, he complied. Nothing in his clothing explained the triggering of the metal detector. The inmate was then told to squat and cough in order to cause expulsion of any weapon secreted in his rectum. He did not comply, questioning whether the

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guards were permitted to give him such an order. The order was repeated, and he again failed to comply. He was then taken to a detention cell where another strip search was performed. Thereafter, he was taken to the BOSS chair, which did not detect any secreted weapon. The inmate was thereafter subjected to another strip search and taken to the second tier where he was placed in Cell 74. Shortly thereafter he was placed in a dry cell where he was held until the prison staff was assured that he had not secreted any weapons. On November 9, 2005, the inmate was charged with two disciplinary infractions: *.708, refusal to submit to a search, and *.256, refusing to obey an order of any staff member. A hearing began on November 10, 2005, and was continued to November 14, 16, 21, and 23, 2005, to permit the hearing officer to gather additional evidence. The hearing concluded on November 28, 2005, and Cann was adjudicated guilty of the *.708 charge (the *.256 charged was dropped). The hearing officer imposed a fifteen-day detention and a ninety-day administrative segregation. The inmate took an immediate administrative appeal and on December 5, 2005, Assistant Superintendent Donald Mee upheld the decision of the hearing officer. Cann raises the following issues on appeal: POINT I - THE DOC'S DECISION THAT APPELLANT WAS GUILTY OF REFUSING TO SUBMIT TO A STRIP SEARCH SHOULD BE RESCINDED IN LIGHT OF THE FACT THAT A REVIEW OF AN INSTITUTIONAL RECORDING CLEARLY SHOWED THAT APPELLANT WILLFULLY OBEYED EXTENSIVELY, EVERY ORDER THAT FELL WITHIN REALM OF A ROUTINE VISUAL BODY CAVITY SEARCH, AND THAT THE ORDER TO SQUAT AND COUGH WAS ONLY TO FURTHER DEHUMANIZE APPELLANT DURING AN ALREADY HIGHLY COMPROMISING PROCEDURE. POINT II - THE DOC'S DECISION THAT APPEALLANT REFUSED ORDERS SHOULD BE RESCINDED BECAUSE APPELLANT WAS DEPRIVED OF DUE PROCESS CONSIDERATIONS AT HIS HEARING ON THIS MATTER. POINT III - THE SANCTIONS IMPOSED UPON APPELLANT WERE HIGHLY DISPROPORTIONATE TO THE NATURE OF THE ALLEGED VIOLATION AND CLEARLY INTENDED ONLY TO PUNISH APPELLANT FOR VIOLATIONS THAT WERE OBVIOUSLY DISPROVED BY THE INSTITUTIONAL RECORDING. The conduct of the disciplinary hearing is governed by N.J.A.C. 10A:4-9.15(a), which requires that "[a] finding of guilt at a disciplinary hearing shall be based upon substantial evidence that the inmate has committed a prohibited act." See also Avant v. Clifford, 67 N.J. 496, 530 (1975) (requiring that there be substantial evidence to support an inmate disciplinary sanction). In reviewing an administrative decision to determine whether it is based upon substantial evidence, our appellate role is limited. We cannot substitute our judgment for that of the agency where its findings are supported by substantial evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). It is not our function to determine the credibility of witnesses or weigh the evidence once that function has been completed by the agency. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

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As to the first claim, the inmate argues that he did not refuse to comply with the order to squat and cough; he merely questioned the authority to give such an order. A refusal to comply with an order does not have to be verbal. It is undisputed that the inmate did not do what he was told to do: squat and cough. Certainly, the guards were entirely justified in giving such an order when the strip search failed to produce the object that triggered the metal detector; not only for their safety, but also that of other inmates. The command to squat and cough was certainly less invasive than a digital or instrumented inspection of his rectum. Furthermore, the DOC had little choice but to put the inmate in a dry cell because of the risk to the guards and other inmates from a secreted weapon. As to the due-process claim, Cann received all the process due him under Avant, supra, 67 N.J. at 522. He appeared before an impartial hearing officer, id. at 525-28, and he received a written statement of the evidence on which the officer relied and the reasons for the sanctions. Id. at 533. His hearing was promptly commenced and only adjourned for good cause in order to permit the hearing officer to request and obtain additional evidence. We find no merit in his claim that the delays were merely punitive and prehearing detention in these circumstances was authorized by N.J.A.C. 10A:4-10.1(c)(6). Finally, the inmate contends that the punishment was excessive and the agency ruling has had collateral effects upon his status as a prison paralegal, his housing assignment, and his prison classification score. The inmate does not have a liberty interest in these collateral effects nor does he have any liberty interest in the degree of his confinement. Meachum v. Fano, 427 U.S. 215, 224-25, 96 S. Ct. 2532, 2538, 49 L. Ed.2d 451, 459 (1976); Rocca v. Groomes, 144 N.J. Super. 213, 215 (App. Div. 1976). Thus, we review the punishment for an abuse of discretion, as we may only disturb an agency's ruling when it is arbitrary, capricious, or unreasonable. In re Taylor, 158 N.J. 644, 657 (1999); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 284-85 (App. Div. 1986), aff'd, 107 N.J. 355 (1987). We find no such abuse of discretion here. The punishment was significantly less severe than the maximum which could have been imposed and was well within the discretion of the DOC. Affirmed.

(continued) (continued) 6 A-2219-05T2 September 25, 2006

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