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

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

NOT FOR PUBLICATION WITHOUT THE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.

March 20, 2020
2

A-2682-18T2

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 SELFDEFENSE 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.
3

A-2682-18T2

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 
4

A-2682-18T2

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." 
5

A-2682-18T2

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.
6

A-2682-18T2

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 
7

A-2682-18T2

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 
8

A-2682-18T2

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. 
9

A-2682-18T2

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 
10 A-2682-18T2

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.