RASHIR ABNER 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NOT FOR PUBLICATION WITHOUT THE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-0

RASHIR ABNER,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

_______________________________________________________________

January 23, 2014

Submitted December 18, 2013 Decided

Before Judges Sapp-Peterson and Maven.

On appeal from the New Jersey Department of Corrections.

Rashir Abner, appellant pro se.

John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Andrew J. Sarrol, Deputy Attorney General, on the brief).

PER CURIAM

Rashir Abner, an inmate formerly confined in Northern State Prison, appeals from the August 2, 2012 final decision of the Department of Corrections (DOC) imposing disciplinary sanctions upon him for committing prohibited act *.002 (assaulting any person); *.010 (participating in an activity related to a security threat group); and *.306 (conduct which disrupts or interferes with the security or orderly running of the correctional facility). Abner received thirty days of detention, 1000 days of administrative segregation, and 1000 days of loss of commutation time. We affirm.

The following facts are pertinent to our decision. On July 21, 2012, Senior Corrections Officer G. Navarro observed Abner and several other inmates assault inmate Tariq Saunders in Fox Recreational Yard. Saunders sustained several abrasions and puncture wounds as a result of the attack.
Navarro alerted staff of the incident, and responding officers Gonzalez and Quispe escorted Abner to the medical unit for an evaluation of a scratch on his left forearm.

On July 22, 2012, Abner received notice of the disciplinary charges. That same day, Sergeant DiMichele conducted an investigation during which Navarro reported his eyewitness account of the incident. Other officers presented reports regarding the impact of the altercation on prison activities and the relationship of the participants. Abner denied participation in the incident, offered inmate Charles Welch as a witness, and requested a counsel substitute. DiMichele determined the charges had merit and referred the matter to a hearing officer.

On July 25, 2012, Hearing Officer Zimmerman conducted a disciplinary hearing and granted Abner's request for a counsel substitute. Abner pled not guilty and denied participating in the assault. In his defense, he stated that he had no blood on him following the assault, and that he cut his arm playing basketball earlier that day. Abner submitted a statement from inmate Welch in which Welch admitted assaulting Saunders. Abner declined to confront any adverse witnesses or present witnesses on his behalf.

Following the hearing, Zimmerman considered the prison officers' reports, Abner's testimony, and Welch's statement. Zimmerman showed Abner and his counsel substitute the adjudication reports for each charge and the evidence he considered. The counsel substitute signed line sixteen of each adjudication report, indicating that the information accurately reflected what had occurred at the adjudication hearing. Zimmerman found Abner guilty of charges *.002, *.010, and *.306 and imposed thirty days of detention, 1000 days of administrative segregation, and 1000 days of loss of commutation time. Abner filed an administrative appeal on July 26, 2012, seeking dismissal of the charges based upon a lack of substantial evidence. The Assistant Superintendent upheld the decision and sanctions.

In this appeal, Abner raises the following contentions:

THE DECISION OF THE PRISON ADMINISTRATOR WAS NOT ADEQUATELY SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE ADMINISTRATIVE RECORD. THE DECISION WAS AT ODDS WITH WITNESS' STATEMENT AND IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS.

After reviewing Abner's arguments in light of the record and applicable legal principles, we conclude these claims have no merit.

The scope of our review of an agency decision is limited. Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980). "In order to reverse an agency's judgment, an appellate court must find the agency's decision to be 'arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole.'" In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Henry, supra, 81 N.J. at 579-80). "'Substantial evidence' means 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Figueroa v. N.J. Dep't of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (quoting In re Pub. Serv. Electric & Gas Co., 35 N.J. 358, 376 (1961)). "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review." Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).

We turn now to consider Abner's contention that the finding of guilt was not based upon substantial credible evidence. Abner argues that his lack of involvement is proven by his assertion that after the assault, he had no blood on him while the other inmates did, and by Welch's statement taking responsibility for the assault. We disagree.

Zimmerman considered disciplinary reports prepared by various prison officers during DiMichele's investigation. Navarro reported that while working in tower one, he witnessed inmates Abner, Goldwater, and Welch assault Saunders. Officer Johnson reported that prison visits and chapel movements were delayed, and activities in the yard were cancelled due to the assault in the yard and the emergency response. Additionally, Officer Negron reported that Welch provided the motive for the assault, writing in his statement that the fight with Saunders was "because of my gang affiliation with the [B]loods and [Saunders] was 'food' which means if I was to come in contact with him I was to fight him." Negron's report also noted that the participating inmates, including Abner, had "been identified as members of the Bloods[]" and the motive for the assault was the result of "Saunders' disassociation from the . . . [gang]."

Zimmerman determined that each charge was supported by undisputed evidence. The adjudication report for *.002 states:

Welch admitted to having [and] using the weapon. However, IM Abner was observed by SCO Navarro taking part in the altercation. . . . DHO notes [Abner] has obvious self interest in the outcome of the hearing [and] therefore would deny involvement. No evidence presented to discredit staff. IM offered opportunity to call additional witnesses and confrontation with Officer, but declined both.

As to disciplinary charge *.306, Zimmerman found that Abner "disrupted the orderly running of the facility (was involved in an assault which caused delays in movements from chapel, yard, and visits when the code was called). . . . DHO notes [the] assault took place in the yard where a lot of movement was taking place." The findings supporting the *.010 charge accepted the staff report that "all [inmates] involved in the assault are identified as members of the same set of the Bloods." The hearing officer found that "a reasonable person would believe the assault was gang related" and "resulted from Saunders' dissociation from the gang."

Based on our review of the record, we are satisfied that substantial evidence supports a finding that Abner violated *.002, *.306, and *.010 by participating in the assault of Saunders with other members of the Bloods, causing a disruption of movements at the prison. Notably, Abner does not deny being present in the recreation yard or in the vicinity of the assault. Rather, he merely disavows participation in the fight. Abner attempts to discredit Navarro by suggesting that "the whole incident [was] viewed in a distance and from the angle of viewing[,] it looked more like a skirmish." Even if the hearing officer considered the assault a "skirmish" this claim fails to contradict the prevailing fact that Abner and the other inmates attacked Saunders causing him to suffer several injuries. Furthermore, Abner's claim fails to negate Navarro's credible and undisputed statement that he witnessed Abner and the others participate in the assault. We also determine that Abner's reliance on Welch's confession is misplaced. In his statement, Welch does not claim to be the sole attacker. Nor does he state that Abner was not involved. Importantly, while Abner relies on this statement, he does not deny his membership in the Bloods, nor dispute the asserted motive for the attack.

Abner next claims that he was denied a fair disciplinary hearing and that his procedural due process rights were violated. He asserts that the hearing should have been held at Northern State Prison where the incident occurred and where he had been housed before being relocated days later. He claims he was denied an opportunity to present additional witnesses.

After careful review of the record, we conclude that the hearing comported with all due process protections required by Avantv. Clifford, 67 N.J. 496, 528-32 (1975), subsequently codified in N.J.A.C. 10A:4-9.1 to 10A:4-9.28. Here, Abner has failed to establish that these proceedings were improper, and he does not substantiate any violation of his due process rights contrary to the procedural requirements of Avant. Ibid. at 525-33. Abner had a hearing in which he could have presented witnesses, or requested an adjournment in order to do so. The evidence adduced at the hearing demonstrates that Abner received timely notice of the charges prior to the adjudication hearing, and had the assistance of a counsel substitute. The hearing was held before an impartial tribunal where Abner presented his statement in defense and Welch's admission. He had the opportunity to confront and challenge the witnesses, but declined to do so. Lastly, his counsel substitute signed the adjudication reports acknowledging the accuracy of what occurred at the hearing. We are satisfied that Abner was afforded all due process protections required by Avant, supra, 67 N.J. at 525-33; that the hearing officer's decision was based on substantial evidence that Abner committed the prohibited acts; and that the DOC's decision was not arbitrary, capricious, or unreasonable. Ramirez v. Dept. of Corr., 382 N.J. Super. 18, 23 (App. Div. 2005); N.J.A.C. 10A:4-9.15(a).

We also conclude that all of the sanctions are consistent with governing regulations. See N.J.A.C. 10A:4-5.1(b).

Affirmed.