SHAKEY NORMAN v. NEW JERSEY DEPARTMENT OF CORRECTIONS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4849-16T2
SHAKEY NORMAN,
Appellant,
v.
NEW JERSEY DEPARTMENT
OF CORRECTIONS,
Respondent.
______________________________
Submitted December 12, 2018 – Decided December 31, 2018
Before Judges Vernoia and Moynihan.
On appeal from the New Jersey Department of
Corrections.
Shakey Norman, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Erica R. Heyer, Deputy
Attorney General, on the brief).
PER CURIAM
Shakey Norman appeals from a New Jersey Department of Corrections'
(DOC) final agency decision finding him guilty of committing prohibited act
*.005, threatening another with bodily harm, in violation of N.J.A.C. 10A:4-
4.1(a)(2)(ii). We are convinced the DOC's decision is not supported by
substantial credible evidence and reverse.
Norman is serving a ten-year sentence for robbery and is an inmate at
Northern State Prison. In May 2017, a DOC nurse reported to the DOC Special
Investigations Division (SID) that Norman sent a letter to her at her home. The
nurse further reported that she "only knew [Norman] from [the] medication line"
at another DOC facility 1 and had never provided him with any personal
information or her address and had not authorized him to contact her. The nurse
also explained she previously received a letter from Norman and had reported
her receipt of that letter to the SID. She requested that Norman "stop trying to
contact" her because she had "nothing to say to him."
1
It appears Norman previously served part of his prison sentence at South
Woods State Prison.
A-4849-16T2
2
In pertinent part, the letter2 states that the nurse "crossed [Norman's] mind
on many occasions," and that he had expressed to her in the past that she was
"attractive" to him. He explained that he was going to be released in September
2017, and stated "maybe we can go on a date." He asked the nurse to email him
and said he "miss[ed] talking and joking around with" her and "hope[d] [to] hear
from" her.
The DOC served Norman with a disciplinary charge alleging he
committed prohibited act .702, unauthorized contacts with the public, in
violation of N.J.A.C. 10A:4-4.1(a)(3)(xviii). Norman was assigned a counsel
substitute. At the initial hearing, the DOC amended the charge to allege
prohibited act *.005, threatening another with bodily harm, in violation of
N.J.A.C. 10A:4-4.1(a)(2)(ii). The record reflects that Norman pleaded "guilty"
to the *.005 charge, admitting he sent the letter to the nurse. His counsel
substitute argued that "the language in the letter was ambiguous and not
threatening in nature" and requested that the charge "be modified to" allege
prohibited act "[.]709[,] undue familiarity with staff."3
2
The letter is dated "4-14-2017." The nurse reported that she received the letter
on April 25, 2017. She reported her receipt of the letter to SID in May 2017.
3 Prohibited act 709 is a "failure to comply with a written rule or regulation of
the correctional facility." N.J.A.C. 10A:4-4.1(a)(4)(ix).
A-4849-16T2
3
The hearing officer found Norman guilty of prohibited act *.005 and
summarized the evidence supporting the determination. The hearing officer
explained that Norman admitted sending the letter, and that the nurse did not
know how Norman obtained her address and wanted Norman to stop sending her
letters. The hearing officer found Norman stated the nurse was "attractive to"
him and that "he may show up at her place of residence." The hearing officer
also determined Norman did "not indicate he will harm" the nurse. The hearing
officer noted the letter was "not the first letter" Norman sent to the nurse.
The hearing officer imposed sanctions including 181 days of
administrative segregation, 365 days' loss of commutation time, thirty days' loss
of recreational privileges and a verbal reprimand. Norman appealed the hearing
officer's decision. A DOC assistant superintendent upheld the hearing officer's
decision and sanctions. This appeal followed.
Norman offers the following argument for our consideration:
POINT I
THE DECISION OF THE HEARING OFFICER
VIOLATED DUE PROCESS AND THEREFORE
SHOULD BE VACATED.
(a) The Decision of the Hearing Officer Should be
Vacated Because the Determination was not Based
Upon Substantial or Credible Evidence.
A-4849-16T2
4
Our standard of review of agency determinations is limited. See In re
Stallworth, 208 N.J. 182, 194 (2011); Brady v. Bd. of Review, 152 N.J. 197, 210
(1997); Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 190 (App. Div.
2010). We will not reverse the decision of an administrative agency unless it is
"arbitrary, capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole." Stallworth, 208 N.J. at 194
(alteration in original) (citation omitted); accord Jenkins v. N.J. Dep't of Corr.,
412 N.J. Super. 243, 259 (App. Div. 2010). Nonetheless, "we will not
perfunctorily review and rubber stamp the agency's decision," Balagun v. N.J.
Dep't of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003), and must "engage in
a 'careful and principled consideration of the agency record and findings,'"
Williams v. Dep't of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting
Mayflower Sec. Co. v. Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85, 93
(1973)).
N.J.A.C. 10A:4-9.15(a) requires that "[a] finding of guilt at a disciplinary
hearing shall be based upon substantial evidence that the inmate has committed
a prohibited act." The hearing officer must specify the evidence relied upon in
making a finding of guilt. N.J.A.C. 10A:4-9.15(b). Substantial evidence needed
to sustain guilt of an infraction is "such evidence [that] a reasonable mind might
A-4849-16T2
5
accept as adequate to support a conclusion." In re Pub. Serv. Elec. & Gas, 35 N.J. 358, 376 (1961) (citations omitted).
Prohibited act *.005 is committed where an inmate "threaten[s] another
with bodily harm or with any offense against his or her person or his or her
property." N.J.A.C. 10A:4-4.1(a)(2)(ii). "The determination of whether [an
action] constitutes a threat is made on the basis of an objective analysis of
whether [the action] conveys a basis for fear." Jacobs v. Stephens, 139 N.J. 212,
222 (1995). For example, in the criminal context, a terroristic threat occurs
where "the words or conduct [are] of such a nature as would reasonably convey
the menace or fear of death to the ordinary hearer." Id. at 222-23 (alteration in
original) (quoting State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985)).
Based on our review of the record, we are convinced the DOC's finding
that Norman committed prohibited act *.005 is not supported by substantial
credible evidence. Viewed objectively, Norman's letter simply does not contain
any threats, either express or implied, of bodily harm or the commission of any
other offense. Moreover, there is no evidence beyond the content of the letter
supporting an objective conclusion that the mailing of the letter conveyed a basis
A-4849-16T2
6
for any fear of bodily harm or the commission of any offense. 4 Indeed, the
hearing officer found the letter did not include any suggestion Norman "would
harm" the nurse, and the nurse did not report that she feared Norman would
cause her bodily injury or commit an offense against her. Rather, she reported
only that she wanted Norman's unwelcome and unwanted communications to
stop.
To be sure, Norman's unsolicited letter to the nurse is inappropriate and
unwelcome and, for those reasons, Norman may have been appropriately
charged with other prohibited acts, including the initial charge of committing
prohibited act .702, unauthorized contacts with the public, or .709, violating
written rules or regulations of the correctional facility. The DOC, however,
chose to amend the initial charge and prosecute Norman only for prohibited act
*.005, which required proof that he threatened the nurse with bodily injury or
the commission of another offense. For the reasons noted, the evidence failed
to sustain the DOC's burden of presenting substantial credible evidence
supporting those elements of the alleged offense.
4
There is no basis in the record to conclude that Norman's alleged prior mailing
of a letter to the nurse supports a finding that the letter sent in April 2017
constituted a threat of bodily harm. The prior letter was not presented to the
hearing officer and is not part of the record.
A-4849-16T2
7
We reject the notion that, under the circumstances presented here,
Norman's purported guilty plea to prohibited act *.005 is sufficient to support
the DOC's determination. Cf. Avant v. Clifford, 67 N.J. 496, 530 (1975)
(finding an inmate's guilt on a disciplinary infraction may be supported by an
admission to the infraction). In summarizing the evidence supporting the
determination Norman committed prohibited act *.005 as required by N.J.A.C.
10A:4-9.15(b), the hearing officer does not rely on Norman's purported plea.5
Instead, the hearing officer relied only on Norman's admission that he sent the
letter and the statements in the letter. As noted, that evidence is insufficient to
support the DOC's determination that Norman committed prohibited act *.005.
Reversed.
5
In his brief on appeal, Norman denies pleading guilty to prohibited act *.005
and argues that he actually pleaded guilty to the initial charge, the commission
of prohibited act .702. Although the DOC records include an "X" in a box
indicating that Norman pleaded guilty to prohibited act *.005, the handwritten
portions of the records reflect that Norman admitted only that he mailed the
letter to the nurse. The DOC records further demonstrate Norman denied
threatening the nurse either by sending the letter or in any other manner. Those
denials are inconsistent with a purported plea of guilty to prohibited act *.005.
In any event, and as noted, Norman's purported guilty plea is not cited as a basis
for the hearing officer's determination of Norman's guilt. See N.J.A.C. 10A:4-
9.15(b).
A-4849-16T2
8
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