JOSE VARGAS 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NOT FOR PUBLICATION WITHOUT THE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-5362-08T2

JOSE VARGAS,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

___________________________

 

Submitted May 17, 2010 - Decided

Before Judges Rodr guez and Reisner.

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

Jose Vargas, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

Jose Vargas, an inmate at Northern State Prison, appeals from a final decision of the Department of Corrections (DOC) dated June 11, 2009, finding him guilty of fighting with another person, prohibited act *.004, and conduct which disrupts or interferes with the security or orderly running of the prison, prohibited act *.306. See N.J.A.C. 10A:4-4.1. We affirm.

These are the most pertinent facts, as reflected in the hearing record. On May 28, 2009, a senior corrections officer let Vargas and his cellmate out of their cell so that they could take showers. However, when they emerged from the cell the two inmates began fighting with each other. Several officers responded and attempted to break up the fight, but they finally had to spray the inmates with pepper spray before the two men would stop fighting. The incident caused a delay in the scheduled inmate showers on the D-100 west unit as well as a delay in scheduled visits for the unit.

Our review of the DOC's decision is limited to determining whether it is supported by substantial credible evidence in the record. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Having reviewed the record in light of that standard, we find no basis to disturb the agency's decision.

In this appeal, Vargas contends that the fight was due to his having been placed in a cell with a member of a gang to which he did not belong. He also claims he was denied the right to call witnesses at his hearing. However, the hearing record does not support either contention. According to the hearing officer's written decision, which Vargas's counsel substitute signed, Vargas declined the opportunity to call witnesses. Moreover, at the hearing he claimed that he and the other inmate were just "playing around" and not fighting. He made the same claim in his administrative appeal from the hearing officer's decision. He did not contend that the fight was gang-related.

Finally, Vargas's arguments concerning an alleged mistaken classification decision are not properly part of this appeal. Vargas did not contend at his hearing that the fight resulted from his mistaken classification, and he did not appeal from that classification decision. Therefore, we will not address the classification issue on this appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

 

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A-5362-08T2

May 27, 2010