BERNARD REID v. NEW JERSEY DEPARTMENT OF CORRECTIONS

 

(NOTE: The status of this decision is Published.)

                          NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5442-15T2


BERNARD REID,

        Appellant,

v.

NEW JERSEY DEPARTMENT OF
CORRECTIONS,

     Respondent.
____________________________

                Submitted January 18, 2018 – Decided February 27, 2018

                Before Judges Simonelli and Gooden Brown.

                On appeal from the New Jersey Department of
                Corrections.

                Bernard Reid, appellant pro se.

                Gurbir S. Grewal, Attorney General, attorney
                for respondent (Melissa Dutton Schaffer,
                Assistant Attorney General, of counsel and on
                the brief).

PER CURIAM

        New Jersey State Prison Inmate Bernard Reid appeals from the

April     13,    2016    final   agency   decision     of   the   Department       of

Corrections (DOC) upholding the hearing officer's guilty finding
and imposition of sanctions for committing prohibited act *.002,

assaulting any person, in violation of N.J.A.C. 10A:4-4.1(a).          We

affirm.

     The disciplinary charge stemmed from a March 2, 2016 incident

that occurred after Reid was returned to his cell by Corrections

Officers (CO) Patterson and Gonzalez.       Reid had become combative,

uncooperative, and agitated in the nurse's office and was escorted

back to his cell as a result.   As the cell door was about to close,

Reid charged at Patterson, "grabbing [his] shirt."           Patterson

pushed Reid back into the cell, restrained Reid on the ground, and

called for assistance.

     The following day, Reid was served with the disciplinary

charge.   After an investigation revealed the charge had merit, the

case was referred for a hearing.           At the hearing, which was

repeatedly postponed for administrative reasons and at Reid's

request, Reid pled not guilty.     He was afforded the assistance of

counsel substitute and granted a witness statement from inmate

Devon Woods, who stated "[he] saw CO Patterson push [Reid] twice

while [Reid] was in handcuffs[.]       Then he push[ed] him in the room

and told the CO to close the . . . door . . . ."         Reid was also

granted confrontation of Patterson and Gonzalez and given the

opportunity to review a video of the incident, after which Reid



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stated     "[i]f   I   would've    grabbed   him,    you   would've    seen    him

(Patterson) go backwards on the video.              You don't see that."

     After considering all the evidence, including the written

reports and the video, the hearing officer found Reid guilty of

the charge.        She credited the account detailed in the "written

reports     to     support    [the]    charge"       and    found     that     the

"[c]onfrontation       did   not   produce   any     additional     evidence    to

discredit staff reports and/or exonerate [Reid]."                   She rejected

Reid's characterization of the video as exculpatory, and described

Reid's statement in that regard as "hypothetical[,]" speculative,

and "not based on any facts."

     Instead, the hearing officer noted that the "video show[ed]

. . . Reid being escorted back to his cell" and the officer

"leaning into the cell" "[o]nce the cell door [began] to close

. . . ."    However, "due to the position of the [o]fficer (in front

of the cell), camera angle, and that the incident occurred within

the cell," the hearing officer concluded that "the video [did] not

assist the inmate in this matter."           She also noted that there was

no audio on the video. Additionally, she rejected Woods' statement

as "vague" and noted that it did not "address what occurred once

. . . Reid was inside of the cell."

     The hearing officer imposed concurrent sanctions of 300 days'

administrative segregation, 300 days' loss of commutation time,

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180 days' loss of television, phone[,] and radio[,] and fifteen

days' loss of recreation privileges.                   Noting that "[Reid] must be

held responsible for his actions[,]" she acknowledged that "no

injuries were reported by staff." On April 13, 2016, the Assistant

Superintendent        upheld        the      hearing     officer's       decision     and

sanctions, noting that "there was compliance with the New Jersey

Administrative        Code     on     inmate      discipline"      and    that    "[t]he

preponderance of [the] evidence presented supports the decision

. . . ."    Reid's request for leniency was also denied.                   This appeal

followed.

     On     appeal,     Reid        raises     the     following   points     for     our

consideration:

            POINT I

            THE NJDOC'S CONTESTED DECISION OFFENDS BOTH
            THE FEDERAL AND STATE CONSTITUTIONS.

            POINT II

            THE RESPONDENT'S ACTIONS VIOLATE[] EXPRESSED
            AND/OR IMPLIED LEGISLATIVE POLICIES.

            POINT [III]

            IN APPLYING THE LEGISLATIVE POLICIES TO THE
            FACTS THE RESPONDENT CLEARLY ERRED IN REACHING
            CONCLUSIONS THAT COULD NOT REASONABLY HAVE
            BEEN MADE ON A SHOWING OF RELEVANT FACTORS.

     "Our role in reviewing the decision of an administrative

agency is limited."          Figueroa v. N.J. Dep't of Corr., 414 N.J.


                                              4                                  A-5442-15T
2 Super. 186, 190 (App. Div. 2010).                 "We defer to an agency decision

and       do   not   reverse       unless   it     is    arbitrary,         capricious        or

unreasonable or not supported by substantial credible evidence in

the record."         Jenkins v. N.J. Dep't of Corr., 
412 N.J. Super. 243,

259 (App. Div. 2010). "'Substantial evidence' means 'such evidence

as    a    reasonable    mind      might    accept      as    adequate      to    support      a

conclusion.'"         Figueroa, 
414 N.J. Super. at 192 (quoting In re

Pub. Serv. Elec. & Gas Co., 
35 N.J. 358, 376 (1961)).

          When   reviewing     a    determination        of    the    DOC    in    a    matter

involving        prisoner    discipline,          we    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 Mayweather Sec. v. Bureau of Sec., 
64 N.J. 85, 93

(1973)).          We consider not only whether there is substantial

evidence that the inmate committed the prohibited act, but also

whether, in making its decision, the DOC followed regulations

adopted to afford inmates procedural due process.                            See McDonald

v. Pinchak, 
139 N.J. 188, 194-96 (1995).

          "Prison disciplinary proceedings are not part of a criminal

prosecution, and the full panoply of rights due a defendant in

such proceedings does not apply."                      Jenkins v. Fauver, 
108 N.J.
 239, 248-49 (1987) (quoting Wolff v. McDonnell, 
418 U.S. 539, 556

(1974)).         The inmate's more limited procedural rights, initially

                                             5                                         A-5442-15T2
set forth in Avant v. Clifford, 
67 N.J. 496, 525-46 (1975), are

codified in a comprehensive set of DOC regulations, N.J.A.C. 10A:4-

9.1 to -9.28, and include an inmate's entitlement to written notice

of the charges at least twenty-four hours prior to the hearing,

an impartial tribunal, a limited right to call witnesses and

present documentary evidence, a limited right to confront and

cross-examine adverse witnesses, a right to a written statement

of the evidence relied upon and the reasons for the sanctions

imposed, and, in certain circumstances, the assistance of counsel

substitute.   Those regulations "strike the proper balance between

the security concerns of the prison, the need for swift and fair

discipline, and the due-process rights of the inmates."         Williams

v. Dep't of Corr., 
330 N.J. Super. 197, 203 (App. Div. 2000)

(citing McDonald, 
139 N.J. at 202).

       Applying these principles, there was substantial credible

evidence in the record to support the finding of guilt, and Reid

received all the procedural due process he was entitled to, despite

his assertions to the contrary. In addition, the sanctions imposed

were   commensurate   with   the   severity   of   the   infraction   and

authorized under N.J.A.C. 10A:4-5.1(a).       Reid was found guilty of

an asterisk offense.    Asterisk offenses "are considered the most

serious and result in the most severe sanctions . . . ."       N.J.A.C.

10A:4-4.1(a).

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     Reid   has   not   demonstrated   that   the   DOC's    decision   was

arbitrary, capricious, unreasonable, or in violation of either the

enabling statute or implementing regulations.               See Bowden v.

Bayside State Prison, 
268 N.J. Super. 301, 304 (App. Div. 1993)

(holding that "[t]he burden of showing the agency's action was

arbitrary, unreasonable or capricious rests upon the appellant").

Reid's arguments, those described here and others not fully set

forth, are without sufficient merit to require further discussion

in a written opinion.     R. 2:11-3(e)(1)(E).

     Affirmed.




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