TRAVIS MOORE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-3371-08T1

TRAVIS MOORE,

     Appellant,

v.

NEW JERSEY DEPARTMENT
OF CORRECTIONS,

     Respondent.



          Submitted May 5, 2010 ­ Decided May 19, 2010

          Before Judges Graves and J. N. Harris.

          On appeal from a Final Agency Decision of
          the New Jersey Department of Corrections.

          Travis Moore, appellant pro se.

          Paula T. Dow, Attorney General, attorney for
          respondent (Lewis A. Scheindlin, Assistant
          Attorney General, of counsel; Christopher C.
          Josephson, Deputy Attorney General, on the
          brief).

PER CURIAM

     Appellant Travis Moore----incarcerated and serving an eight-

year sentence at East Jersey State Prison (EJSP)----appeals from

an adverse final administrative disciplinary determination of

the New Jersey Department of Corrections rendered on January 16,

2009. Moore was found guilty of prohibited act *.005, N.J.A.C.

10A:4-4.1(a)(*.005) ("threatening another with bodily harm or

with any offense against his or her person or his or her

property"). After a comprehensive review of the agency's action,

we affirm.

     In late December 2008, prison officials at EJSP received

information that Moore had written three intimidating letters to

Rashida McKnight----the mother of Moore's child----containing

threats of bodily harm. Among the statements contained in the

correspondence were the following:

          I will never let your sister raise my child,
          so the only one you [are going to] hurt is
          the kids. If I . . . get out and find you,
          I'll put both of [your] brains in [your] lap
          and if I get caught we [are] all going to
          hell and I'll be whooping your ass for [an]
          eternity.
                              ***

          I promise I [will] find you and I promise
          the shit I'm going to do [does not] only
          happen in the movies.

                                ***

          As God is my witness don't let me have to
          track you down . . . and I'll be in your
          house, waiting to run you over crossing the
          street, shooting you in the head while you
          [are] checking your mail.

     On January 1, 2009, Moore was formally served with written

charges, which resulted in reference to a hearing officer to

consider the matter on January 8, 2009. A counsel substitute was

provided to Moore at his request. The hearing was postponed


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until January 10, 2009, in order to investigate first whether

Moore had been previously disciplined for writing the

threatening letters.   Ultimately, Moore entered a plea of not

guilty and stated that the letters and allegations of threat-

making were several months old, outdated, and had already been

the subject of an adjudication at the Southern State

Correctional Facility (SSCF).1

     After considering the letters, the report of a prison

investigator, Moore's admissions regarding writing the letters,

and with knowledge of an unrelated November 2008 disciplinary

proceeding involving the same type of charge, the hearing

officer found Moore guilty of prohibited act *.005, finding the

"inmate's statements are definitely serious threats." Sanctions

were meted out as follows: fifteen days detention; 365 days loss

of commutation credit; and 365 days of administrative

segregation.

     Moore thereafter appealed the disciplinary action to the

prison administrator. While conceding that he wrote some of the

correspondence between one and twelve months prior to the

1
  Moore conceded that he was not directly sanctioned at the SSCF,
but insisted that the recipient of the letters was "blocked from
my phone list and visit list [,] which [had] enabled me to
communicate with my children." A letter dated July 7, 2008, to
McKnight from the Department of Corrections, confirmed that she
was banned from visiting Moore at the SSCF.




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                                 3

hearing, and alleging that his situation was already reviewed by

prison officials at the SSCF,2 he argued that he was not given

sufficient time to prepare and review the "insufficient"

evidence in detail. He claimed that there was "obviously very

sloppy investigative work." He asserted that the sanction was

being written up even before he had the opportunity to give his

statement to the hearing officer. Finally, he protested the

"poor representation" he received from counsel substitute,

including "not [being] properly advised of laws or rights."

     After reviewing Moore's several arguments and the record

presented, the Assistant Superintendent of the EJSP upheld the

entirety of the findings and sanctions imposed by the hearing

officer. The decision noted that Moore was admittedly the author

of the letters and that there was "no documentation that this

matter has ever been addressed before." Finding that "the

sanction imposed was proportionate to the offense," the

Assistant Superintendent declined to adjust the initial

determination. This appeal followed.

     Moore raises twelve separate (but with some overlapping)

issues to this court, many that were not argued during the

2
  Moore stated, "[I] was already cautioned for my wrongs." He
also noted that he "was reprimanded" for these letters by prison
officials. Other than Moore's unsubstantiated claims, the record
is utterly silent regarding prior disciplinary actions relating
to the letters, either at the SSCF or at the EJSP.



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                                4

administrative proceedings. For example, he now complains that

(1) he was prejudiced by not being given a hearing within three

days pursuant to N.J.A.C. 10A:4:9.8(c); (2) he was denied the

opportunity to review certain evidence and call witnesses in his

defense; and (3) he was charged and sanctioned twice with the

same evidence. The balance of Moore's arguments include his

continued refrain that he was the victim of an incomplete

investigation, suffered from the ineffective assistance of

counsel substitute, and was prejudiced by the agency's

consideration of an irrelevant and unrelated disciplinary

matter. We have generously reviewed all of Moore's appellate

arguments, and are firmly convinced that they lack sufficient

merit to warrant full discussion in a written opinion. R. 2:11-

3(e)(1)(E). We append just the following brief comments.

    Our scope of review is constrained, and Moore's contentions

are analyzed in accordance with that standard.   Unless the

agency's decision was arbitrary, capricious, unreasonable, or

unsupported by credible evidence in the record, we must affirm.

Henry v. Rahway State Prison, 
81 N.J. 571, 579-80 (1980).

    After an assessment of the record, we find that Moore

received all of the procedural due process to which he was

entitled under the principles of McDonald v. Pinchak, 
139 N.J.
 188, 202 (1995) and Avant v. Clifford, 
67 N.J. 496, 552 (1975).




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                               5

Moreover, N.J.A.C. 10A:4-9.9(a) provides that "[t]he failure to

adhere to any of the time limits prescribed by this subchapter

shall not mandate the dismissal of a disciplinary charge."

Under this regulation, the disciplinary hearing officer may, in

his discretion, dismiss a charge because of a violation of time

limits.    The regulation provides, however, that such discretion

shall be guided by the following pertinent factors: the length

of the delay; the reason for the delay; prejudice to the inmate

in preparing his defense; and the seriousness of the alleged

infraction.   In this case, there was no request for a dismissal,

but it is plain, given the de minimis delay in the proceedings,

the lack of any apparent prejudice to the inmate in preparing

his defense, and the seriousness of the charge, that a dismissal

would have been a clear abuse of discretion by the hearing

officer.

    The failure to raise the many freshly minted issues in the

administrative tribunal precludes the advancement of those

arguments on appeal. As these issues were not originally

presented in the disciplinary proceeding, they are not properly

before us.    State v. Robinson, 
200 N.J. 1, 20 (2009); Nieder v.

Royal Indemn. Ins. Co., 
62 N.J. 229, 234 (1973).

    Ultimately, we conclude that the agency's decision was not

arbitrary, capricious, or unreasonable given the facts




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                                 6

presented, and that the decision is supported by substantial

credible evidence in the record as a whole. The tenor of the

statements that Moore wrote would unquestioningly be deemed

threatening by any reasonable person who read them. The

sanctions that were imposed for these admitted writings are

unexceptionable.

    Affirmed.




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